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450 U.S. 175
101 S.Ct. 1048
67 L.Ed.2d 155
Sidney A. DIAMOND, Commissioner of Patents and Trademarks, Petitioner,v.James R. DIEHR, II and Theodore A. Lutton.
No. 79-1112.
Argued Oct. 14, 1980.
Decided March 3, 1981.
Syllabus
Respondents filed a patent application claiming invention for a process for molding raw, uncured synthetic rubber into cured precision products. While it was possible, by using well-known time, temperature and cure relationships, to calculate by means of an established mathematical equation when to open the molding press and remove the cured product, according to respondents the industry had not been able to measure precisely the temperature inside the press, thus making it difficult to make the necessary computations to determine the proper cure time. Respondents characterized their contribution to the art to reside in the process of constantly measuring the temperature inside the mold and feeding the temperature measurements into a computer that repeatedly recalculates the cure time by use of the mathematical equation and then signals a device to open the press at the proper time. The patent examiner rejected respondents' claims on the ground that they were drawn to nonstatutory subject matter under 35 U.S.C. § 101, which provides for the issuance of patents to "[w]hoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof . . . ." The Patent and Trademark Office Board of Appeals agreed, but the Court of Customs and Patent Appeals reversed.
Held : Respondents' claims recited subject matter that was eligible for patent protection under § 101. Pp. 181-193.
(a) For purposes of § 101, a "process" is "an act, or a series of acts, performed upon the subject-matter to be transformed and reduced to a different state or thing. If new and useful, it is just as patentable as is a piece of machinery . . . . The machinery pointed out as suitable to perform the process may or may not be new or patentable." Cochrane v. Deener, 94 U.S. 780, 788, 24 L.Ed. 139. Industrial processes such as respondents' claims for transforming raw, uncured synthetic rubber into a different state or thing are the types which have historically been eligible to receive patent-law protection. Pp. 181-184.
(b) While a mathematical formula, like a law of nature, cannot be the subject of a patent, cf. Gottschalk v. Benson, 409 U.S. 63, 93 S.Ct. 253, 34 L.Ed.2d 273; Parker v. Flook, 437 U.S. 584, 98 S.Ct. 2522, 57 L.Ed.2d 451, respondents do not seek to patent a mathematical formula, but instead seek protection for a process of curing synthetic rubber. Although their process employs a well-known mathematical equation, they do not seek to pre-empt the use of that equation, except in conjunction with all of the other steps in their claimed process. A claim drawn to subject matter otherwise statutory does not become nonstatutory simply because it uses a mathematical formula, computer program, or digital computer. Respondents' claims must be considered as a whole, it being inappropriate to dissect the claims into old and new elements and then to ignore the presence of the old elements in the analysis. The questions of whether a particular invention meets the "novelty" requirements of 35 U.S.C. § 102 or the "nonobviousness" requirements of § 103 do not affect the determination of whether the invention falls into a category of subject matter that is eligible for patent protection under § 101. Pp. 185-191.
(c) When a claim containing a mathematical formula implements or applies the formula in a structure or process which, when considered as a whole, is performing a function which the patent laws were designed to protect (e. g., transforming or reducing an article to a different state or thing), then the claim satisfies § 101's requirements. Pp. 191-193.
Cust. & Pat.App., 602 F.2d 982, affirmed.
Lawrence G. Wallace, Washington, D. C., for petitioner.
Robert E. Wickersham, San Francisco, Cal., for respondents.
Justice REHNQUIST delivered the opinion of the Court.
1
We granted certiorari to determine whether a process for curing synthetic rubber which includes in several of its steps the use of a mathematical formula and a programmed digital computer is patentable subject matter under 35 U.S.C. § 101.
2
* The patent application at issue was filed by the respondents on August 6, 1975. The claimed invention is a process for molding raw, uncured synthetic rubber into cured precision products. The process uses a mold for precisely shaping the uncured material under heat and pressure and then curing the synthetic rubber in the mold so that the product will retain its shape and be functionally operative after the molding is completed.1
3
Respondents claim that their process ensures the production of molded articles which are properly cured. Achieving the perfect cure depends upon several factors including the thickness of the article to be molded, the temperature of the molding process, and the amount of time that the article is allowed to remain in the press. It is possible using well-known time, temperature, and cure relationships to calculate by means of the Arrhenius equation2 when to open the pressand remove the cured product. Nonetheless, according to the respondents, the industry has not been able to obtain uniformly accurate cures because the temperature of the molding press could not be precisely measured, thus making it difficult to do the necessary computations to determine cure time.3 Because the temperature inside the press has heretofore been viewed as an uncontrollable variable, the conventional industry practice has been to calculate the cure time as the shortest time in which all parts of the product will definitely be cured, assuming a reasonable amount of mold-opening time during loading and unloading. But the shortcoming of this practice is that operating with an uncontrollable variable inevitably led in some instances to overestimating the mold-opening time and overcuring the rubber, and in other instances to underestimating that time and undercuring the product.4
4
Respondents characterize their contribution to the art to reside in the process of constantly measuring the actual temperature inside the mold. These temperature measurements are then automatically fed into a computer which repeatedly recalculates the cure time by use of the Arrhenius equation. When the recalculated time equals the actual time that has elapsed since the press was closed, the computer signals a device to open the press. According to the respondents, the continuous measuring of the temperature inside the mold cavity, the feeding of this information to a digital computer which constantly recalculates the cure time, and the signaling by the computer to open the press, are all new in the art.
5
The patent examiner rejected the respondents' claims on the sole ground that they were drawn to nonstatutory subject matter under 35 U.S.C. § 101.5 He determined that thosesteps in respondents' claims that are carried out by a computer under control of a stored program constituted nonstatutory subject matter under this Court's decision in Gottschalk v. Benson, 409 U.S. 63, 93 S.Ct. 253, 34 L.Ed.2d 273 (1972). The remaining steps installing rubber in the press and the subsequent closing of thepress—were "conventional and necessary to the process and cannot be the basis of patentability." The examiner concluded that respondents' claims defined and sought protection of a computer program for operating a rubber-molding press.
6
The Patent and Trademark Office Board of Appeals agreed with the examiner, but the Court of Customs and Patent Appeals reversed. In re Diehr, 602 F.2d 982 (1979). The court noted that a claim drawn to subject matter otherwise statutory does not become nonstatutory because a computer is involved. The respondents' claims were not directed to a mathematical algorithm or an improved method of calculation but rather recited an improved process for molding rubber articles by solving a practical problem which had risen in the molding of rubber products.
7
The Commission of Patents and Trademarks sought certiorari arguing that the decision of the Court of Customs and Patent Appeals was inconsistent with prior decisions of this Court. Because of the importance of the question presented, we granted the writ. 445 U.S. 926, 100 S.Ct. 1311, 63 L.Ed.2d 758 (1980).
II
8
Last Term in Diamond v. Chakrabarty, 447 U.S. 303, 100 S.Ct. 2204, 65 L.Ed.2d 144 (1980), this Court discussed the historical purposes of the patent laws and in particular 35 U.S.C. § 101. As in Chakrabarty, we must here construe 35 U.S.C. § 101 which provides:
9
"Whoever, invents or discovers any new and useful process, machine manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title."6
10
In cases of statutory construction, we begin with the language of the statute. Unless otherwise defined, "words will be interpreted as taking their ordinary, contemporary, common meaning," Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 314, 62 L.Ed.2d 199 (1979), and, in dealing with the patent laws, we have more than once cautioned that "courts 'should not read into the patent laws limitations and conditions which the legislature has not expressed.' " Diamond v. Chakrabarty, supra, at 308, 100 S.Ct., at 2207 quoting United States v. Dubilier Condenser Corp., 289 U.S. 178, 199, 53 S.Ct. 554, 561, 77 L.Ed. 1114 (1933).
11
The Patent Act of 1793 defined statutory subject matter as "any new and useful art, machine, manufacture or composition of matter, or any new or useful improvement [thereof]." Act of Feb. 21, 1793, ch. 11, § 1, 1 Stat. 318. Not until the patent laws were recodified in 1952 did Congress replace the word "art" with the word "process." It is that latter word which we confront today, and in order to determine its meaning we may not be unmindful of the Committee Reports accompanying the 1952 Act which inform us that Congress intended statutory subject matter to "include anything under the sun that is made by man." S.Rep.No.1979, 82d Cong., 2d Sess., 5 (1952); H.R.Rep.No.1923, 82d Cong., 2d Sess., 6 (1952), U.S.Code Cong. & Admin.News 1952, pp. 2394, 2399.
12
Although the term "process" was not added to 35 U.S.C. § 101 until 1952 a process has historically enjoyed patent protection because it was considered a form of "art" as that term was used in the 1793 Act.7 In defining the nature of a patentable process, the Court stated:
13
"That a process may be patentable, irrespective of the particular form of the instrumentalities used, cannot be disputed. . . . A process is a mode of treatment of certain materials to produce a given result. It is an act, or a series of acts, performed upon the subject-matter to be transformed and reduced to a different state or thing. If new and useful, it is just as patentable as is a piece of machinery. In the language of the patent law, it is an art. The machinery pointed out as suitable to perform the process may or may not be new or patentable; whilst the process itself may be altogether new, and produce an entirely new result. The process requires that certain things should be done with certain substances, and in a certain order; but the tools to be used in doing this may be of secondary consequence." Cochrane v. Deener, 94 U.S. 780, 787-788, 24 L.Ed. 139 (1877).
14
Analysis of the eligibility of a claim of patent protection for a "process" did not change with the addition of that term to § 101. Recently, in Gottschalk v. Benson, 409 U.S. 63, 93 S.Ct. 253, 34 L.Ed.2d 273 (1972), we repeated the above definition recited in Cochrane v. Deener, adding: "Transformation and reduction of an article 'to a different state or thing' is the clue to the patentability of a process claim that does not include particular machines." 409 U.S., at 70, 93 S.Ct., at 256.
15
Analyzing respondents' claims according to the above statements from our cases, we think that a physical and chemical process for molding precision synthetic rubber products falls within the § 101 categories of possibly patentable subject matter. That respondents' claims involve the transformation of an article, in this case raw, uncured synthetic rubber, into a different state or thing cannot be disputed. The respondents' claims describe in detail a step-by-step method for accomplishing such, beginning with the loading of a mold with raw, uncured rubber and ending with the eventual opening of the press at the conclusion of the cure. Industrial processes such as this are the types which have historically been eligible to receive the protection of our patent laws.8
III
16
Our conclusion regarding respondents' claims is not altered by the fact that in several steps of the process a mathematical equation and a programmed digital computer are used. This Court has undoubtedly recognized limits to § 101 and every discovery is not embraced within the statutory terms. Excluded from such patent protection are laws of nature, natural phenomena, and abstract ideas. See Parker v. Flook, 437 U.S. 584, 98 S.Ct. 2522, 57 L.Ed.2d 451 (1978); Gottschalk v. Benson, supra, at 67, 93 S.Ct., at 255; Funk Bros. Seed Co. v. Kalo Inoculant Co., 333 U.S. 127, 130, 68 S.Ct. 440, 441, 92 L.Ed. 588 (1948). "An idea of itself is not patentable," Rubber-Tip Pencil Co. v. Howard, 20 Wall. 498, 507, 22 L.Ed. 410 (1874). "A principle, in the abstract, is a fundamental truth; an original cause; a motive; these cannot be patented, as no one can claim in either of them an exclusive right." Le Roy v. Tatham, 14 How. 156, 175, 14 L.Ed. 367 (1853). Only last Term, we explained:
17
"[A] new mineral discovered in the earth or a new plant found in the wild is not patentable subject matter. Likewise, Einstein could not patent his celebrated law that E = mc2; nor could Newton have patented the law of gravity. Such discoveries are 'manifestations of . . . nature, free to all men and reserved exclusively to none.' " Diamond v. Chakrabarty, 447 U.S., at 309, 100 S.Ct., at 2208, quoting Funk Bros. Seed Co. v. Kalo Inoculant Co., supra, at 130, 68 S.Ct., at 441.
18
Our recent holdings in Gottschalk v. Benson, supra, and Parker v. Flook, supra, both of which are computer-related, stand for no more than these long-established principles. In Benson, we held unpatentable claims for an algorithm used to convert binary code decimal numbers to equivalent pure binary numbers. The sole practical application of the algorithm was in connection with the programming of a general purpose digital computer. We defined "algorithm" as a "procedure for solving a given type of mathematical problem," and we concluded that such an algorithm, or mathematical formula, is like a law of nature, which cannot be the subject of a patent.9
19
Parker v. Flook, supra, presented a similar situation. The claims were drawn to a method for computing an "alarm limit." An "alarm limit" is simply a number and the Court concluded that the application sought to protect a formula for computing this number. Using this formula, the updated alarm limit could be calculated if several other variables were known. The application, however, did not purport to explain how these other variables were to be determined,10 nor did it purport "to contain any disclosure relating to the chemical processes at work, the monitoring of process variables, or the means of setting off an alarm or adjusting an alarm system. All that it provides is a formula for computing an updated alarm limit." 437 U.S., at 586, 98 S.Ct., at 2523.
20
In contrast, the respondents here do not seek to patent a mathematical formula. Instead, they seek patent protection for a process of curing synthetic rubber. Their process admittedly employs a well-known mathematical equation, but they do not seek to pre-empt the use of that equation. Rather, they seek only to foreclose from others the use of that equation in conjunction with all of the other steps in their claimed process. These include installing rubber in a press, closing the mold, constantly determining the temperature of the mold, constantly recalculating the appropriate cure time through the use of the formula and a digital computer, and automatically opening the press at the proper time. Obviously, one does not need a "computer" to cure natural or synthetic rubber, but if the computer use incorporated in the process patent significantly lessens the possibility of "overcuring" or "undercuring," the process as a whole does not thereby become unpatentable subject matter.
21
Our earlier opinions lend support to our present conclusion that a claim drawn to subject matter otherwise statutory does not become nonstatutory simply because it uses a mathematical formula, computer program, or digital computer. In Gottschalk v. Benson, we noted: "It is said that the decision precludes a patent for any program servicing a computer. We do not so hold." 409 U.S., at 71, 93 S.Ct., at 257. Similarly, in Parker v. Flook, we stated that "a process is not unpatentable simply because it contains a law of nature or a mathematical algorithm." 437 U.S., at 590, 98 S.Ct., at 2526. It is now commonplace that an application of a law of nature or mathematical formula to a known structure or process may well be deserving of patent protection. See, e. g., Funk Bros. Seed Co. v. Kalo Inoculant Co., 333 U.S. 127, 68 S.Ct. 440, 92 L.Ed. 588 (1948); Eibel Process Co. v. Minnesota & Ontario Paper Co., 261 U.S. 45, 43 S.Ct. 322, 67 L.Ed. 523 (1923); Cochrane v. Deener, 94 U.S. 780, 24 L.Ed. 139 (1877); O'Reilly v. Morse, 15 How. 62, 14 L.Ed. 601 (1854); and Le Roy v. Tatham, 14 How. 156, 14 L.Ed. 367 (1853). As Justice Stone explained four decades ago:
22
"While a scientific truth, or the mathematical expression of it, is not a patentable invention, a novel and useful structure created with the aid of knowledge of scientific truth may be." Mackay Radio & Telegraph Co. v. Radio of America, 306 U.S. 86, 94, 59 S.Ct. 427, 431, 83 L.Ed. 506 (1939).11
23
We think this statement in Mackay takes us a long way toward the correct answer in this case. Arrhenius' equation is not patentable in isolation, but when a process for curing rubber is devised which incorporates in it a more efficient solution of the equation, that process is at the very least not barred at the threshold by § 101.
24
In determining the eligibility of respondents' claimed process for patent protection under § 101, their claims must be considered as a whole. It is inappropriate to dissect the claims into old and new elements and then to ignore the presence of the old elements in the analysis. This is particularly true in a process claim because a new combination of steps in a process may be patentable even though all the constituents of the combination were well known and in common use before the combination was made. The "novelty" of any element or steps in a process, or even of the process itself, is of no relevance in determining whether the subject matter of a claim falls within the § 101 categories of possibly patentable subject matter.12
25
It has been urged that novelty is an appropriate consideration under § 101. Presumably, this argument results from the language in § 101 referring to any "new and useful" process, machine, etc. Section 101, however, is a general statement of the type of subject matter that is eligible for patent protection "subject to the conditions and requirements of this title." Specific conditions for patentability follow and § 102 covers in detail the conditions relating to novelty.13 The question therefore of whether a particular invention is novel is "wholly apart from whether the invention falls into a category of statutory subject matter." In re Bergy, 596 F.2d 952, 961 (Cust. & Pat.App., 1979) (emphasis deleted). See also Nickola v. Peterson, 580 F.2d 898 (CA6 1978). The legislative history of the 1952 Patent Act is in accord with this reasoning. The Senate Report stated:
26
"Section 101 sets forth the subject matter that can be patented, 'subject to the conditions and requirements of this title.' The conditions under which a patent may be obtained follow, and Section 102 covers the conditions relating to novelty." S.Rep.No.1979, 82d Cong., 2d Sess., 5 (1952), U.S.Code Cong. & Admin.News, 1952, p. 2399 (emphasis supplied).
It is later stated in the same Report:
27
"Section 102, in general, may be said to describe the statutory novelty required for patentability, and includes, in effect, an amplification and definition of 'new' in section 101." Id., at 6, U.S.Code Cong. & Admin.News, 1952, p. 2399.
28
Finally, it is stated in the "Revision Notes":
29
"The corresponding section of [the] existing statute is split into two sections, section 101 relating to the subject matter for which patents may be obtained, and section 102 defining statutory novelty and stating other conditions for patentability." Id., at 17, U.S.Code Cong. & Admin.News, 1952, p. 2409.
30
See also H.R.Rep.No.1923, 82d Cong., 2d Sess., at 6, 7, and 17 (1952).
31
In this case, it may later be determined that the respondents' process is not deserving of patent protection because it fails to satisfy the statutory conditions of novelty under § 102 or nonobviousness under § 103. A rejection on either of these grounds does not affect the determination that respondents' claims recited subject matter which was eligible for patent protection under § 101.
IV
32
We have before us today only the question of whether respondents' claims fall within the § 101 categories of possibly patentable subject matter. We view respondents' claims as nothing more than a process for molding rubber products and not as an attempt to patent a mathematical formula. We recognize, of course, that when a claim recites a mathematical formula (or scientific principle or phenomenon of nature), an inquiry must be made into whether the claim is seeking patent protection for that formula in the abstract. A mathematical formula as such is not accorded the protection of our patent laws, Gottschalk v. Benson, 409 U.S. 63, 93 S.Ct. 253, 34 L.Ed.2d 273 (1972), and this principle cannot be circumvented by attempting to limit the use of the formula to a particular technological environment. Parker v. Flook, 437 U.S. 584, 98 S.Ct. 2522, 57 L.Ed.2d 451 (1978). Similarly, insignificant post-solution activity will not transform an unpatentable principle into a patentable process. Ibid.14 To hold otherwise would allow a competent draftsman to evade the recognized limitations on the type of subject matter eligible for patent protection. On the other hand, when a claim containing a mathematical formula implements or applies that formula in a structure or process which, when considered as a whole, is performing a function which the patent laws were designed to protect (e. g., transforming or reducing an article to a different state or thing), then the claim satisfies the requirements of § 101. Because we do not view respondents' claims as an attempt to patent a mathematical formula, but rather to be drawn to an industrial process for the molding of rubber products, we affirm the judgment of the Court of Customs and Patent Appeals.15
33
It is so ordered.
34
Justice STEVENS, with whom Justice BRENNAN, Justice MARSHALL, and Justice BLACKMUN join, dissenting.
35
The starting point in the proper adjudication of patent litigation is an understanding of what the inventor claims to have discovered. The Court's decision in this case rests on a misreading of the Diehr and Lutton patent application. Moreover, the Court has compounded its error by ignoring the critical distinction between the character of the subject matter that the inventor claims to be novel—the § 101 issue—and the question whether that subject matter is in fact novel—the § 102 issue.
36
* Before discussing the major flaws in the Court's opinion, a word of history may be helpful. As the Court recognized in Parker v. Flook, 437 U.S. 584, 595, 98 S.Ct. 2522, 2528, 57 L.Ed.2d 451 (1978), the computer industry is relatively young. Although computer technology seems commonplace today, the first digital computer capable of utilizing stored programs was developed less than 30 years ago.1 Patent law developments in response to this new technology are of even more recent vintage. The subject of legal protection for computer programs did not begin to receive serious consideration until over a decade after completion of the first programmable digital computer.2 It was 1968 before the federal courts squarely addressed the subject,3 and 1972 before this Court announced its first decision in the area.4
37
Prior to 1968, well-established principles of patent law probably would have prevented the issuance of a valid patent on almost any conceivable computer program. Under the "mental steps" doctrine, processes involving mental operations were considered unpatentable. See, e. g., In re Heritage, 150 F.2d 554, 556-558, 32 CCPA (Pat.) 1170, 1173-1177 (1945); In re Shao Wen Yuan, 188 F.2d 377, 380-383, 38 CCPA (Pat.) 967, 972-976 (1951). The mental-steps doctrine was based upon the familiar principle that a scientific concept or mere idea cannot be the subject of a valid patent. See In re Bolongaro, 62 F.2d 1059, 1060, 20 CCPA (Pat.) 845, 846-847 (1933).5 The doctrine was regularly invoked to deny patents to inventions consisting primarily of mathematical formulae or methods of computation.6 It was also applied against patent claims in which a mental operation or mathematical computation was the sole novel element or inventive contribution; it was clear that patentability could not be predicated upon a mental step.7 Under the "function of a machine" doctrine, a process which amounted to nothing more than a description of the function of a machine was unpatentable. This doctrine had its origin in several 19th-century decisions of this Court,8 and it had been consistently followed thereafter by the lower federal courts.9 Finally, the definition of "process" announced by this Court inCochrane v. Deener, 94 U.S. 780, 787-788, 24 L.Ed. 139 (1877), seemed to indicate that a patentable process must cause a physical transformation in the materials to which the process is applied. See ante, at 182-184.
38
Concern with the patent system's ability to deal with rapidly changing technology in the computer and other fields led to the formation in 1965 of the President's Commission on the Patent System. After studying the question of computer program patentability, the Commission recommended that computer programs be expressly excluded from the coverage of the patent laws; this recommendation was based primarily upon the Patent Office's inability to deal with the administrative burden of examining program applications.10 At approximately the time that the Commission issued its report, the Patent Office published notice of its intention to prescribe guidelines for the examination of applications for patents on computer programs. See 829 Off.Gaz.Pat.Off. 865 (Aug. 16, 1966). Under the proposed guidelines, a computer program, whether claimed as an apparatus or as a process, was unpatentable.11 The Patent Office indicated, however, that a programmed computer could be a component of a patentable process if combined with unobvious elements to produce a physical result. The Patent Office formally adopted the guidelines in 1968. See 33 Fed.Reg. 15609 (1968).
39
The new guidelines were to have a short life. Beginning with two decisions in 1968, a dramatic change in the law as understood by the Court of Customs and Patent Appeals took place. By repudiating the well-settled "function of a machine" and "mental steps" doctrines, that court reinterpreted § 101 of the Patent Code to enlarge drastically the categories of patentable subject matter. This reinterpretation would lead to the conclusion that computer programs were within the categories of inventions to which Congress intended to extend patent protection.
40
In In re Tarczy-Hornoch, 397 F.2d 856, 55 CCPA (Pat.) 1441 (1968), a divided Court of Customs and Patent Appeals overruled the line of cases developing and applying the "function of a machine" doctrine. The majority acknowledged that the doctrine had originated with decisions of this Court and that the lower federal courts, including the Court of Customs and Patent Appeals, had consistently adhered to it during the preceding 70 years. Nonetheless, the court concluded that the doctrine rested on a misinterpretation of the precedents and that it was contrary to "the basic purposes of the patent system and productive of a range of undesirable results from the harshly inequitable to the silly." Id., at 867, 55 CCPA (Pat.), at 1454.12 Shortly thereafter, a similar fate befell the "mental steps" doctrine. In In re Prater, 415 F.2d 1378, 56 CCPA (Pat.) 1360 (1968), modified on rehearing, 415 F.2d 1393, 56 CCPA (Pat.) 1381 (1969), the court found that the precedents on which that doctrine was based either were poorly reasoned or had been misinterpreted over the years. 415 F.2d, at 1382-1387, 56 CCPA (Pat.), at 1366-1372. The court concluded that the fact that a process may be performed mentally should not foreclose patentability if the claims reveal that the process also may be performed without mental operations. Id., at 1389, 56 CCPA (Pat.), at 1374-1375.13 This aspect of the original Prater opinion was substantially undisturbed by the opinion issued after rehearing. However, the second Prater opinion clearly indicated that patent claims broad enough to encompass the operation of a programmed computer would not be rejected for lack of patentable subject matter. 415 F.2d, at 1403, n. 29, 56 CCPA (Pat.), at 1394, n. 29.14
41
The Court of Customs and Patent Appeals soon replaced the overruled doctrines with more expansive principles formulated with computer technology in mind. In In re Bernhart, 417 F.2d 1395, 57 CCPA (Pat.) 737 (1969), the court reaffirmed Prater, and indicated that all that remained of the mental-steps doctrine was a prohibition on the granting of a patent that would confer a monopoly on all uses of a scientific principle or mathematical equation. Id., at 1399, 57 CCPA (Pat.), at 743. The court also announced that a computer programmed with a new and unobvious program was physically different from the same computer without that program; the programmed computer was a new machine or at least a new improvement over the unprogrammed computer. Id., at 1400, 57 CCPA (Pat.), at 744. Therefore, patent protection could be obtained for new computer programs if the patent claims were drafted in apparatus form.
42
The Court of Customs and Patent Appeals turned its attention to process claims encompassing computer programs in In re Musgrave, 431 F.2d 882, 57 CCPA (Pat.) 1352 (1970). In that case, the court emphasized the fact that Prater had done away with the mental-steps doctrine; in particular, the court rejected the Patent Office's continued reliance upon the "point of novelty" approach to claim analysis. Id., at 889, 57 CCPA (Pat.), at 1362.15 The court also announced a new standard for evaluating process claims under § 101: any sequence of operational steps was a patentable process under § 101 as long as it was within the "technological arts." Id., at 893, 57 CCPA (Pat.), at 1366-1367. This standard effectively disposed of any vestiges of the mental-steps doctrine remaining after Prater and Bernhart.16 The "technological arts" standard was refined in In re Benson, 441 F.2d 682, 58 CCPA (Pat.) 1134 (1971), in which the court held that computers, regardless of the uses to which they are put, are within the technological arts for purposes of § 101. Id., at 688, 58 CCPA (Pat.), at 1142.
43
In re Benson, of course, was reversed by this Court in Gottschalk v. Benson, 409 U.S. 63, 93 S.Ct. 253, 34 L.Ed.2d 273 (1972).17 Justice Douglas' opinion for a unanimous Court made no reference to the lower court's rejection of the mental-steps doctrine or to the new technological-arts standard.18 Rather, the Court clearly held that new mathematical procedures that can be conducted in old computers, like mental processes and abstract intellectual concepts, see id., at 67, 93 S.Ct., at 255, are not patentable processes within the meaning of § 101.
44
The Court of Customs and Patent Appeals had its first opportunity to interpret Benson in In re Christensen, 478 F.2d 1392 (1973). In Christensen, the claimed invention was a method in which the only novel element was a mathematical formula. The court resurrected the point-of-novelty approach abandoned in Musgrave and held that a process claim in which the point of novelty was a mathematical equation to be solved as the final step of the process did not define patentable subject matter after Benson. 478 F.2d, at 1394. Accordingly, the court affirmed the Patent Office Board of Appeals' rejection of the claims under § 101.
45
The Court of Customs and Patent Appeals in subsequent cases began to narrow its interpretation of Benson. In In re Johnston, 502 F.2d 765 (1974), the court held that a recordkeeping machine system which comprised a programmed digital computer was patentable subject matter under § 101. Id., at 771. The majority dismissed Benson with the observation that Benson involved only process, not apparatus claims. 502 F.2d, at 771. Judge Rich dissented, arguing that to limit Benson only to process claims would make patentability turn upon the form in which a program invention was claimed. 502 F.2d, at 773-774.19 The court again construed Benson as limited only to process claims in In re Noll, 545 F.2d 141 (1976), cert. denied, 434 U.S. 875, 98 S.Ct. 226, 54 L.Ed.2d 155 (1977); apparatus claims were governed by the court's pre-Benson conclusion that a programmed computer was structurally different from the same computer without that particular program. 545 F.2d, at 148. In dissent, Judge Lane, joined by Judge Rich, argued that Benson should be read as a general proscription of the patenting of computer programs regardless of the form of the claims. 545 F.2d, at 151-152. Judge Lane's interpretation ofBenson was rejected by the majority in In re Chatfield, 545 F.2d 152 (1976), cert. denied, 434 U.S. 875, 98 S.Ct. 226, 54 L.Ed.2d 155 (1977), decided on the same day as Noll. In that case, the court construed Benson to preclude the patenting of program inventions claimed as processes only where the claims would pre-empt all uses of an algorithm or mathematical formula. 545 F.2d, at 156, 158-159.20 The dissenting judges argued, as they had inNoll, that Benson held that programs for general-purpose digital computers are not patentable subject matter. 545 F.2d, at 161.
46
Following Noll and Chatfield, the Court of Customs and Patent Appeals consistently interpreted Benson to preclude the patenting of a program-related process invention only when the claims, if allowed, would wholly pre-empt the algorithm itself. One of the cases adopting this view was In re Flook, 559 F.2d 21 (1977),21 which was reversed in Parker v. Flook, 437 U.S. 584, 98 S.Ct. 2522, 57 L.Ed.2d 451 (1978). Before this Court decided Flook, however, the lower court developed a two-step procedure for analyzing program-related inventions in light of Benson. In In re Freeman, 573 F.2d 1237 (1978), the court held that such inventions must first be examined to determine whether a mathematical algorithm is directly or indirectly claimed; if an algorithm is recited, the court must then determine whether the claim would wholly pre-empt that algorithm. Only if a claim satisfied both inquiries was Benson considered applicable. 573 F.2d, at 1245. See also In re Toma, 575 F.2d 872, 877 (Cust. & Pat.App.1978).
47
In Flook, this Court clarified Benson in three significant respects. First, Flook held that the Benson rule of unpatentable subject matter was not limited, as the lower court believed, to claims which wholly pre-empted an algorithm or amounted to a patent on the algorithm itself. 437 U.S., at 589-590, 98 S.Ct., at 2525-2526. Second, the Court made it clear that an improved method of calculation, even when employed as part of a physical process, is not patentable subject matter under § 101. Id., at 595, n. 18, 98 S.Ct., at 2528. Finally, the Court explained the correct procedure for analyzing a patent claim employing a mathematical algorithm. Under this procedure, the algorithm is treated for § 101 purposes as though it were a familiar part of the prior art; the claim is then examined to determine whether it discloses "some other inventive concept." Id., at 591-595, 98 S.Ct., at 2526-2528.22
48
Although the Court of Customs and Patent Appeals in several post-Flook decisions held that program-related inventions were not patentable subject matter under § 101, see e. g., In re Sarkar, 588 F.2d 1330 (1978); In re Gelnovatch, 595 F.2d 32 (1979), in general Flook was not enthusiastically received by that court. In In re Bergy, 596 F.2d 952 (1979), the majority engaged in an extensive critique of Flook, concluding that this Court had erroneously commingled "distinct statutory provisions which are conceptually unrelated." 596 F.2d, at 959.23 In subsequent cases, the court construed Flook as resting on nothing more than the way in which the patent claims had been drafted, and it expressly declined to use the method of claim analysis spelled out in that decision. The Court of Customs and Patent Appeals has taken the position that, if an application is drafted in a way that discloses an entire process as novel, it defines patentable subject matter even if the only novel element that the inventor claims to have discovered is a new computer program.24 The court interpreted Flook in this manner in its opinion in this case. See In re Diehr, 602 F.2d 982, 986-989 (1979). In my judgment, this reading of Flook —although entirely consistent with the lower court's expansive approach to § 101 during the past 12 years—trivializes the holding in Flook, the principle that underlies Benson, and the settled line of authority reviewed in those opinions.
II
49
As I stated at the outset, the starting point in the proper adjudication of patent litigation is an understanding of what the inventor claims to have discovered. Indeed, the outcome of such litigation is often determined by the judge's understanding of the patent application. This is such a case.
50
In the first sentence of its opinion, the Court states the question presented as "whether a process for curing synthetic rubber . . . is patentable subject matter." Ante, at 177. Of course, that question was effectively answered many years ago when Charles Goodyear obtained his patent on the vulcanization process.25 The patent application filed by Diehr and Lutton, however, teaches nothing about the chemistry of the synthetic rubber-curing process, nothing about the raw materials to be used in curing synthetic rubber, nothing about the equipment to be used in the process, and nothing about the significance or effect of any process variable such as temperature, curing time, particular compositions of material, or mold configurations. In short, Diehr and Lutton do not claim to have discovered anything new about the process for curing synthetic rubber.
51
As the Court reads the claims in the Diehr and Lutton patent application, the inventors' discovery is a method of constantly measuring the actual temperature inside a rubber molding press.26 As I read the claims, their discovery is an improved method of calculating the time that the mold should remain closed during the curing process.27 If the Court's reading of the claims were correct, I would agree that they disclose patentable subject matter. On the other hand, if the Court accepted my reading, I feel confident that the case would be decided differently.
52
There are three reasons why I cannot accept the Court's conclusion that Diehr and Lutton claim to have discovered a new method of constantly measuring the temperature inside a mold. First, there is not a word in the patent application that suggests that there is anything unusual about the temperature-reading devices used in this process—or indeed that any particular species of temperature-reading device should be used in it.28 Second, since devices for constantly measuring actual temperatures—on a back porch, for example—have been familiar articles for quite some time. I find it difficult to believe that a patent application filed in 1975 was premised on the notion that a "process of constantly measuring the actual temperature" had just been discovered. Finally, the Patent and Trademark Office Board of Appeals expressly found that "the only difference between the conventional methods of operating a molding press and that claimed in [the] application rests in those steps of the claims which relate to the calculation incident to the solution of the mathematical problem or formula used to control the mold heater and the automatic opening of the press."29 This finding was not disturbed by the Court of Customs and Patent Appeals and is clearly correct.
53
A fair reading of the entire patent application, as well as the specific claims, makes it perfectly clear that what Diehr and Lutton claim to have discovered is a method of using a digital computer to determine the amount of time that a rubber molding press should remain closed during the synthetic rubber-curing process. There is no suggestion that there is anything novel in the instrumentation of the mold, in actuating a timer when the press is closed, or in automatically opening the press when the computed time expires.30 Nor does the application suggest that Diehr and Lutton have discovered anything about the temperatures in the mold or the amount of curing time that will produce the best cure. What they claim to have discovered, in essence, is a method of updating the original estimated curing time by repetitively recalculating that time pursuant to a well-known mathematical formula in response to variations in temperature within the mold. Their method of updating the curing time calculation is strikingly reminiscent of the method of updating alarm limits that Dale Flook sought to patent.
54
Parker v. Flook, 437 U.S. 584, 98 S.Ct. 2522, 57 L.Ed.2d 451 (1978), involved the use of a digital computer in connection with a catalytic conversion process. During the conversion process, variables such as temperature, pressure, and flow rates were constantly monitored and fed into the computer; in this case, temperature in the mold is the variable that is monitored and fed into the computer. In Flook, the digital computer repetitively recalculated the "alarm limit"—a number that might signal the need to terminate or modify the catalytic conversion process; in this case, the digital computer repetitively recalculates the correct curing time—a number that signals the time when the synthetic rubber molding press should open.
55
The essence of the claimed discovery in both cases was an algorithm that could be programmed on a digital computer.31 In Flook, the algorithm made use of multiple process variables; in this case, it makes use of only one. In Flook, the algorithm was expressed in a newly developed mathematical formula; in this case, the algorithm makes use of a well-known mathematical formula. Manifestly, neither of these differences can explain today's holding.32 What I believe does explain today's holding is a misunderstanding of the applicants' claimed invention and a failure to recognize the critical difference between the "discovery" requirement in § 101 and the "novelty" requirement in § 102.33
III
56
The Court misapplies Parker v. Flook because, like the Court of Customs and Patent Appeals, it fails to understand or completely disregards the distinction between the subject matter of what the inventor claims to have discovered—the § 101 issue—and the question whether that claimed discovery is in fact novel—the § 102 issue.34 If there is not even a claim that anything constituting patentable subject matter has been discovered, there is no occasion to address the novelty issue.35 Or, as was true in Flook, if the only concept that the inventor claims to have discovered is not patentable subject matter, § 101 requires that the application be rejected without reaching any issue under § 102; for it is irrelevant that unpatentable subject matter—in that case a formula for updating alarm limits—may in fact be novel.
57
Proper analysis, therefore, must start with an understanding of what the inventor claims to have discovered—or phrased somewhat differently—what he considers his inventive concept to be.36 It seems clear to me that Diehr and Lutton claim to have developed a new method of programming a digital computer in order to calculate—promptly and repeatedly—the correct curing time in a familiar process.37 In the § 101 analysis, we must assume that the sequence of steps in this programming method is novel, unobvious, and useful. The threshold question of whether such a method is patentable subject matter remains.
58
If that method is regarded as an "algorithm" as that term was used in Gottschalk v. Benson, 409 U.S. 63, 93 S.Ct. 253, 34 L.Ed.2d 273 (1972), and in Parker v. Flook, 437 U.S. 584, 98 S.Ct. 2522, 57 L.Ed.2d 451 (1978),38 and if no other inventive concept is disclosed in the patent application, the question must be answered in the negative. In both Benson andFlook, the parties apparently agreed that the inventor's discovery was properly regarded as an algorithm; the holding that an algorithm was a "law of nature" that could not be patented therefore determined that those discoveries were not patentable processes within the meaning of § 101.
59
As the Court recognizes today, Flook also rejected the argument that patent protection was available if the inventor did not claim a monopoly on every conceivable use of the algorithm but instead limited his claims by describing a specific postsolution activity—in that case setting off an alarm in a catalytic conversion process. In its effort to distinguish Flook from the instant case, the Court characterizes that postsolution activity as "insignificant," ante, at 191, or as merely "token" activity, ante, at 192, n. 14. As a practical matter however, the postsolution activity described in the Flook application was no less significant than the automatic opening of the curing mold involved in this case. For setting off an alarm limit at the appropriate time is surely as important to the safe and efficient operation of a catalytic conversion process as is actuating the mold-opening device in a synthetic rubber-curing process. In both cases, the post-solution activity is a significant part of the industrial process. But in neither case should that activity have any legal significance because it does not constitute a part of the inventive concept that the applicants claimed to have discovered.39
60
In Gottschalk v. Benson, we held that a program for the solution by a digital computer of a mathematical problem was not a patentable process within the meaning of § 101. In Parker v. Flook, we further held that such a computer program could not be transformed into a patentable process by the addition of postsolution activity that was not claimed to be novel. That holding plainly requires the rejection of Claims 1 and 2 of the Diehr and Lutton application quoted in the Court's opinion. Ante, at 179-180, n. 5. In my opinion, it equally requires rejection of Claim 11 because the presolution activity described in that claim is admittedly a familiar part of the prior art.40
61
Even the Court does not suggest that the computer program developed by Diehr and Lutton is a patentable discovery. Accordingly, if we treat the program as though it were a familiar part of the prior art—as well-established precedent requires41—it is absolutely clear that their application contains no claim of patentable invention. Their application was therefore properly rejected under § 101 by the Patent Office and the Board of Appeals.
IV
62
The broad question whether computer programs should be given patent protection involves policy considerations that this Court is not authorized to address. See Gottschalk v. Benson, 409 U.S., at 72-73, 93 S.Ct., at 257-258; Parker v. Flook, 437 U.S., at 595-596, 98 S.Ct., at 2528-2529. As the numerous briefs amicus curiae filed in Gottschalk v. Benson, supra, Dann v. Johnston, 425 U.S. 219, 96 S.Ct. 1393, 47 L.Ed.2d 692 (1976), Parker v. Flook, supra, and this case demonstrate, that question is not only difficult and important, but apparently also one that may be affected by institutional bias. In each of those cases, the spokesmen for the organized patent bar have uniformly favored patentability and industry representatives have taken positions properly motivated by their economic self-interest. Notwithstanding fervent argument that patent protection is essential for the growth of the software industry,42 commentators have noted that "this industry is growing by leaps and bounds without it."43 In addition, even some commentators who believe that legal protection for computer programs is desirable have expressed doubts that the present patent system can provide the needed protection.44
63
Within the Federal Government, patterns of decision have also emerged. Gottschalk, Dann, Parker, and Diamond were not ordinary litigants—each was serving as Commissioner of Patents and Trademarks when he opposed the availability of patent protection for a program-related invention. No doubt each may have been motivated by a concern about the ability of the Patent Office to process effectively the flood of applications that would inevitably flow from a decision that computer programs are patentable.45 The consistent concern evidenced by the Commissioner of Patents and Trademarks and by the Board of Appeals of the Patent and Trademark Office has not been shared by the Court of Customs and Patent Appeals, which reversed the Board in Benson, Johnston, and Flook, and was in turn reversed by this Court in each of those cases.46
64
Scholars have been critical of the work of both tribunals. Some of that criticism may stem from a conviction about the merits of the broad underlying policy question; such criticism may be put to one side. Other criticism, however, identifies two concerns to which federal judges have a duty to respond. First, the cases considering the patentability of program-related inventions do not establish rules that enable a conscientious patent lawyer to determine with a fair degree of accuracy which, if any, program-related inventions will be patentable. Second, the inclusion of the ambiguous concept of an "algorithm" within the "law of nature" category of unpatentable subject matter has given rise to the concern that almost any process might be so described and therefore held unpatentable.
65
In my judgment, today's decision will aggravate the first concern and will not adequately allay the second. I believe both concerns would be better addressed by (1) an unequivocal holding that no program-related invention is a patentable process under § 101 unless it makes a contribution to the art that is not dependent entirely on the utilization of a computer, and (2) an unequivocal explanation that the term "algorithm" as used in this case, as in Benson and Flook, is synonymous with the term "computer program."47 Because the invention claimed in the patent application at issue in this case makes no contribution to the art that is not entirely dependent upon the utilization of a computer in a familiar process, I would reverse the decision of the Court of Customs and Patent Appeals.
1
A "cure" is obtained by mixing curing agents into the uncured polymer in advance of molding and then applying heat over a period of time. If the synthetic rubber is cured for the right length of time at the right temperature, it becomes a usable product.
2
The equation is named after its discoverer Svante Arrhenius and has long been used to calculate the cure time in rubber-molding presses. The equation can be expressed as follows:
ln v = CZ + x
wherein ln v is the natural logarithm of v, the total required cure time; C is the activation constant, a unique figure for each batch of each compound being molded, determined in accordance with rheometer measurements of each batch; Z is the temperature in the mold; and x is a constant dependent on the geometry of the particular mold in the press. A rheometer is an instrument to measure flow of viscous substances.
3
During the time a press is open for loading, it will cool. The longer it is open, the cooler it becomes and the longer it takes to reheat the press to the desired temperature range. Thus, the time necessary to raise the mold temperature to curing temperature is an unpredictable variable. The respondents claim to have overcome this problem by continuously measuring the actual temperature in the closed press through the use of a thermocouple.
4
We note that the petitioner does not seriously contest the respondents' assertions regarding the inability of the industry to obtain accurate cures on a uniform basis. See Brief for Petitioner 3.
5
Respondents' application contained 11 different claims. Three examples are claims 1, 2, and 11 which provide:
"1. A method of operating a rubber-molding press for precision molded compounds with the aid of a digital computer, comprising:
"providing said computer with a data base for said press including at least,
"natural logarithm conversion data (ln),
"the activation energy constant (C) unique to each batch of said compound being molded, and
"a constant (x) dependent upon the geometry of the particular mold of the press,
"initiating an interval timer in said computer upon the closure of the press for monitoring the elapsed time of said closure,
"constantly determining the temperature (Z) of the mold at a location closely adjacent to the mold cavity in the press during molding,
"constantly providing the computer with the temperature (Z),
"repetitively calculating in the computer, at frequent intervals during each cure, the Arrhenius equation for reaction time during the cure, which is
"ln v = CZ + x
"where v is the total required cure time,
"repetitively comparing in the computer at said frequent intervals during the cure each said calculation of the total required cure time calculated with the Arrhenius equation and said elapsed time, and
"opening the press automatically when a said comparison indicates equivalence.
"2. The method of claim 1 including measuring the activation energy constant for the compound being molded in the press with a rheometer and automatically updating said data base within the computer in the
event of changes in the compound being molded in said press as measured by said rheometer.
* * * * *
"11. A method of manufacturing precision molded articles from selected synthetic rubber compounds in an openable rubber molding press having at least one heated precision mold, comprising:
"(a) heating said mold to a temperature range approximating a pre-determined rubber curing temperature,
"(b) installing prepared unmolded synthetic rubber of a known compound in a molding cavity of predetermined geometry as defined by said mold,
"(c) closing said press to mold said rubber to occupy said cavity in conformance with the contour of said mold and to cure said rubber by transfer of heat thereto from said mold,
"(d) initiating an interval timer upon the closure of said press for monitoring the elapsed time of said closure,
"(e) heating said mold during said closure to maintain the temperature thereof within said range approximating said rubber curing temperature,
"(f) constantly determining the temperature of said mold at a location closely adjacent said cavity thereof throughout closure of said press,
"(g) repetitively calculating at frequent periodic intervals throughout closure of said press the Arrhenius equation for reaction time of said rubber to determine total required cure time v as follows:
"ln v = cz + x
"wherein c is an activation energy constant determined for said rubber being molded and cured in said press, z is the temperature of said mold at the time of each calculation of said Arrhenius equation, and x is a constant which is a function of said predetermined geometry of said mold,
"(h) for each repetition of calculation of said Arrhenius equation herein comparing the resultant calculated total required cure time with the monitored elapsed time measured by said interval timer,
"(i) opening said press when a said comparison of calculated total required cure time and monitored elapsed time indicates equivalence, and
"(j) removing from said mold the resultant precision molded and cured rubber article."
6
The word "process" is defined in 35 U.S.C. § 100(b):
"The term 'process' means process, art or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material."
7
In Corning v. Burden, 15 How. 252, 267-268, 14 L.Ed. 683 (1854), this Court explained:
"A process, eo nomine, is not made the subject of a patent in our act of congress. It is included under the general term 'useful art.' An art may require one or more processes or machines in order to produce a certain result or manufacture. The term machine includes every mechanical device or combination of mechanical powers and devices to perform some
function and produce a certain effect or result. But where the result or effect is produced by chemical action, by the operation or application of some element or power of nature, or of one substance to another, such modes, methods, or operations, are called processes. A new process is usually the result of discovery; a machine of invention. The arts of tanning, dyeing, making water-proof cloth, vulcanizing India rubber, smelting ores, and numerous others, are usually carried on by processes as distinguished from machines. One may discover a new and useful improvement in the process of tanning, dyeing, &c., irrespective of any particular form of machinery or mechanical device. And another may invent a labor-saving machine by which this operation or process may be performed, and each may be entitled to his patent. As, for instance, A has discovered that by exposing India rubber to a certain degree of heat, in mixture or connection with certain metallic salts, he can produce a valuable product, or manufacture; he is entitled to a patent for his discovery, as a process or improvement in the art, irrespective of any machine or mechanical device. B, on the contrary, may invent a new furnace or stove, or steam apparatus, by which this process may be carried on with much saving of labor, and expense of fuel; and he will be entitled to a patent for his machine, as an improvement in the art. Yet A could not have a patent for a machine, or B for a process; but each would have a patent for the means or method of producing a certain result, or effect, and not for the result or effect produced. It is for the discovery or invention of some practical method or means of producing a beneficial result or effect, that a patent is granted, and not for the result or effect itself. It is when the term process is used to represent the means or method of producing a result that it is patentable, and will include all methods or means which are not effected by mechanism or mechanical combinations."
8
We note that as early as 1854 this Court approvingly referred to patent eligibility of processes for curing rubber. See id., at 267; n. 7, supra. In Tilghman v. Proctor, 102 U.S. 707, 26 L.Ed. 279 (1881) we referred to the original patent Charles Goodyear received on his process for "vulcanizing" or curing rubber. We stated:
"That a patent can be granted for a process, there can be no doubt. The patent law is not confined to new machines and new compositions of matter, but extends to any new and useful art or manufacture. A manufacturing process is clearly an art, within the meaning of the law. Goodyear's patent was for a process, namely, the process of vulcanizing india-rubber by subjecting it to a high degree of heat when mixed with sulphur and a mineral salt. The apparatus for performing the process was not patented, and was not material. The patent pointed out how the process could be effected, and that was deemed sufficient." Id., at 722.
9
The term "algorithm" is subject to a variety of definitions. The petitioner defines the term to mean:
" '1. A fixed step-by-step procedure for accomplishing a given result; usually a simplified procedure for solving a complex problem, also a full statement of a finite number of steps. 2. A defined process or set of rules that leads [sic] and assures development of a desired output from a given input. A sequence of formulas and/or algebraic/logical steps to calculate or determine a given task; processing rules.' " Brief for Petitioner in Diamond v. Bradley, O.T. 1980, No. 79-855, p. 6, n. 12, quoting C. Sippl & R. Sippl, Computer Dictionary and Handbook 23 (2d ed 1972).
This definition is significantly broader than the definition this Court employed in Benson and Flook. Our previous decisions regarding the patentability of "algorithms" are necessarily limited to the more narrow definition employed by the Court, and we do not pass judgment on whether processes falling outside the definition previously used by this Court, but within the definition offered by the petitioner, would be patentable subject matter.
10
As we explained in Flook, in order for an operator using the formula to calculate an updated alarm limit the operator would need to know the original alarm base, the appropriate margin of safety, the time interval that should elapse between each updating, the current temperature (or other process variable), and the appropriate weighing factor to be used to average the alarm base and the current temperature. 437 U.S., at 586, 98 S.Ct., at 2523. The patent application did not "explain how to select the approximate margin of safety, the weighing factor, or any of the other variables." Ibid.
11
We noted in Funk Bros. Seed Co. v. Kalo Inoculant Co., 333 U.S. 127, 130, 68 S.Ct. 440, 441, 92 L.Ed. 588 (1948):
"He who discovers a hitherto unknown phenomenon of nature has no claim to a monopoly of it which the law recognizes. If there is to be invention from such a discovery, it must come from the application of the law of nature to a new and useful end."
Although we were dealing with a "product" claim in Funk Bros., the same principle applies to a process claim. Gottschalk v. Benson, 409 U.S. 63, 68, 93 S.Ct. 253, 255, 34 L.Ed.2d 273 (1972).
12
It is argued that the procedure of dissecting a claim into old and new elements is mandated by our decision in Flook which noted that a mathematical algorithm must be assumed to be within the "prior art." It is from this language that the petitioner premises his argument that if everything other than the algorithm is determined to be old in the art, then the claim cannot recite statutory subject matter. The fallacy in this argument is that we did not hold in Flook that the mathematical algorithm could not be considered at all when making the § 101 determination. To accept the analysis proffered by the petitioner would, if carried to its extreme, make all inventions unpatentable because all inventions can be reduced to underlying principles of nature which, once known, make their implementation obvious. The analysis suggested by the petitioner would also undermine our earlier decisions regarding the criteria to consider in determining the eligibility of a process for patent protection. See, e. g., Gottschalk v. Benson, supra ; and Cochrane v. Deener, 94 U.S. 780, 24 L.Ed. 139 (1877).
13
Section 102 is titled "Conditions for patentability; novelty and loss of right to patent," and provides:
"A person shall be entitled to a patent unless—
"(a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent, or
"(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States, or
"(c) he has abandoned the invention, or
"(d) the invention was first patented or caused to be patented, or was the subject of an inventor's certificate, by the applicant or his legal representatives or assigns in a foreign country prior to the date of the application for patent in this country on an application for patent or inventor's certificate filed more than twelve months before the filing of the application in the United States, or
"(e) the invention was described in a patent granted on an application for patent by another filed in the United States before the invention thereof by the applicant for patent, or on an international application by another who has fulfilled the requirements of paragraphs (1), (2), and (4) of section 371(c) of this title before the invention thereof by the applicant for patent, or
"(f) he did not himself invent the subject matter sought to be patented, or
"(g) before the applicant's invention thereof the invention was made in this country by another who had not abandoned, suppressed, or concealed it. In determining priority of invention there shall be considered not only the respective dates of conception and reduction to practice of the invention, but also the reasonable diligence of one who was first to conceive and last to reduce to practice, from a time prior to conception by the other."
14
Arguably, the claims in Flook did more than present a mathematical formula. The claims also solved the calculation in order to produce a new number or "alarm limit" and then replaced the old number with the number newly produced. The claims covered all uses of the formula in processes "comprising the catalytic chemical conversion of hydrocarbons." There are numerous such processes in the petrochemical and oil refinery industries and the claims therefore covered a broad range of potential uses, 437 U.S., at 586, 98 S.Ct., at 2523. The claims, however, did not cover every conceivable application of the formula. We rejected in Flook the argument that because all possible uses of the mathematical formula were not pre-empted, the claim should be eligible for patent protection. Our reasoning in Flook is in no way inconsistent with our reasoning here. A mathematical formula does not suddenly become patentable subject matter simply by having the applicant acquiesce to limiting the reach of the patent for the formula to a particular technological use. A mathematical formula in the abstract is nonstatutory subject matter regardless of whether the patent is intended to cover all uses of the formula or only limited uses. Similarly, a mathematical formula does not become patentable subject matter merely by including in the claim for the formula token postsolution activity such as the type claimed in Flook. We were careful to note in Flook that the patent application did not purport to explain how the variables used in the formula were to be selected, nor did the application contain any disclosure relating to chemical processes at work or the means of setting off an alarm or adjusting the alarm unit. Ibid. All the application provided was a "formula for computing an updated alarm limit." Ibid.
15
The dissent's analysis rises and falls on its characterization of respondents' claims as presenting nothing more than "an improved method of calculating the time that the mold should remain closed during the curing process." Post, at 206-207. The dissent states that respondents claim only to have developed "a new method of programming a digital computer in order to calculate—promptly and repeatedly—the correct curing time in a familiar process." Post, at 213. Respondents' claims, however, are not limited to the isolated step of "programming a digital computer." Rather, respondents' claims describe a process of curing rubber beginning with the loading of the mold and ending with the opening of the press and the production of a synthetic rubber product that has been perfectly cured—a result heretofore unknown in the art. See n. 5, supra. The fact that one or more of the steps in respondents' process may not, in isolation, be novel or independently eligible for patent protection is irrelevant to the question of whether the claims as a whole recite subject matter eligible for patent protection under § 101. As we explained when discussing machine patents in Deepsouth Packing Co. v. Laitram Corp., 406 U.S. 518, 92 S.Ct. 1700, 32 L.Ed.2d 273 (1972):
"The patents were warranted not by the novelty of their elements but by the novelty of the combination they represented. Invention was recognized because Laitram's assignors combined ordinary elements in an extraordinary way—a novel union of old means was designed to achieve new ends. Thus, for both inventions 'the whole in some way exceed[ed] the sum of its parts.' Great A. & P. Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147, 152 [71 S.Ct. 127, 130, 95 L.Ed. 162] (1950)." Id., at 521-522, 92 S.Ct., at 1703-1704 (footnote omitted).
In order for the dissent to reach its conclusion it is necessary for it to read out of respondents' patent application all the steps in the claimed process which it determined were not novel or "inventive." That is not the purpose of the § 101 inquiry and conflicts with the proposition recited above that a claimed invention may be entitled to patent protection even though some or all of its elements are not "novel."
1
ENIAC, the first general purpose electronic digital computer, was built in 1946. Unlike modern computers, this machine was externally programmed; its circuitry had to be manually rewired each time it was used to perform a new task. See Gemignani, Legal Protection for Computer Software: The View From '79, 7 Rutgers J. Computers, Tech. & L. 269, 270 (1980). In 1952, a group of scientists at the Institute for Advanced Study completed MANIAC I, the first digital computer capable of operating upon stored programs, as opposed to hard-wired circuitry. See Ulam, Computers, 211 Scientific American 203 (1964).
2
The subject received some scholarly attention prior to 1964. See, e. g., Seidel, Antitrust, Patent and Copyright Law Implications of Computer Technology, 44 J.Pat.Off.Soc. 116 (1962); Comment, The Patentability of Computer Programs, 38 N.Y.U.L.Rev. 891 (1963). In 1964, the Copyright Office began registering computer programs. See 11 Copyright Soc.Bull. 361 (1964); Davis, Computer Programs and Subject Matter Patentability, 6 Rutgers J. Computers, Tech. & L. 1, 5 (1977). Also in 1964, the Patent Office Board of Appeals issued what appears to be the first published opinion concerning the patentability of a computer-related invention. See Ex parte King, 146 USPQ 590.
3
In re Prater, 415 F.2d 1378, 56 CCPA (Pat.) 1360 modified on rehearing, 415 F.2d 1393, 56 CCPA (Pat.) 1381 (1969), is generally identified as the first significant judicial decision to consider the subject-matter patentability of computer program-related inventions. The Court of Customs and Patent Appeals earlier decided In re Naquin, 398 F.2d 863, 55 CCPA (Pat.) 1428 (1968), in which it rejected a challenge to an application for a patent on a program-related invention on grounds of inadequate disclosure under § 112.
4
See Gottschalk v. Benson, 409 U.S. 63, 93 S.Ct. 253, 34 L.Ed.2d 273 (1972).
5
See also Novick & Wallenstein, The Algorithm and Computer Software Patentability: A Scientific View of a Legal Problem, 7 Rutgers J. Computers, Tech. & L. 313, 316-317 (1980).
6
See, e. g., Don Lee, Inc. v. Walker, 61 F.2d 58, 67 (CA9 1932); In re Bolongaro, 62 F.2d 1059, 1060, 20 CCPA (Pat.) 845, 846-847 (1933); In re Shao Wen Yuan, 188 F.2d 377, 379-380, 38 CCPA (Pat.) 967, 969-972 (1951); Lyman v. Ladd, 120 U.S.App.D.C. 388, 389, 347 F.2d 482, 483 (1965).
7
See, e. g., In re Cooper, 134 F.2d 630, 632, 30 CCPA (Pat.) 946, 949 (1943); Halliburton Oil Well Cementing Co. v. Walker, 146 F.2d 817, 821, 823 (CA9 1944), rev'd on other grounds, 329 U.S. 1, 67 S.Ct. 6, 91 L.Ed. 3 (1946); In re Heritage, 150 F.2d 554, 556-558, 32 CCPA (Pat.) 1170, 1173-1177 (1945); In re Abrams, 188 F.2d 165, 168-170, 38 CCPA (Pat.) 945, 950-953 (1951); In re Shao Wen Yuan, supra, at 383, 38 CCPA (Pat.), at 975-976; In re Lundberg, 197 F.2d 336, 339, 39 CCPA (Pat.) 971, 975 (1952); In re Venner, 262 F.2d 91, 95, 46 CCPA (Pat.) 754, 758-759 (1958).
8
The "function of a machine" doctrine is generally traced to Corning v. Burden, 15 How. 252, 268 (1854), in which the Court stated: "[I]t is well settled that a man cannot have a patent for the function or abstract effect of a machine, but only for the machine which produces it." The doctrine was subsequently reaffirmed on several occasions. See, e. g., Risdon Iron & Locomotive Works v. Medart, 158 U.S. 68, 78-79, 84, 15 S.Ct. 745, 749, 751, 39 L.Ed. 899 (1895); Westinghouse v. Boyden Power Brake Co., 170 U.S. 537, 554-557, 18 S.Ct. 707, 715-717, 42 L.Ed. 1136 (1898); Busch v. Jones, 184 U.S. 598, 607, 22 S.Ct. 511, 514, 46 L.Ed. 707 (1902); Expanded Metal Co. v. Bradford, 214 U.S. 366, 383, 29 S.Ct. 652, 656, 53 L.Ed. 1034 (1909).
9
See, e. g., In re Weston, 17 App.D.C. 431, 436-442 (1901); Chisholm-Ryder Co. v. Buck, 65 F.2d 735, 736 (CA4 1933); In re Ernst, 71 F.2d 169, 171-172, 21 CCPA (Pat.) 1235, 1238-1240 (1934); In re McCurdy, 76 F.2d 400, 402-403, 22 CCPA (Pat.) 1140, 1142-1145 (1935); In re Parker, 79 F.2d 908, 909-910, 23 CCPA (Pat.) 721, 722-725 (1935); Black-Clawson Co. v. Centrifugal Engineering & Patents Corp., 83 F.2d 116, 119-120 (CA6), cert. denied, 299 U.S. 554, 57 S.Ct. 16, 81 L.Ed. 408 (1936); In re Wadman, 94 F.2d 993, 998, 25 CCPA (Pat.) 936, 943-944 (1938); In re Mead, 127 F.2d 302, 304, 29 CCPA (Pat.) 1001, 1004 (1942); In re Solakian, 155 F.2d 404, 407, 33 CCPA (Pat.) 1054, 1059 (1946); In re Middleton, 167 F.2d 1012, 1013-1014, 35 CCPA (Pat.) 1166, 1167-1168 (1948); In re Nichols, 171 F.2d 300, 302-303, 36 CCPA (Pat.) 759, 762-763 (1948); In re Ashbaugh, 173 F.2d 273, 274-275, 36 CCPA (Pat.) 902, 904-905 (1949); In re Horvath, 211 F.2d 604, 607-608, 41 CCPA (Pat.) 844, 849-851 (1954); In re Gartner, 223 F.2d 502, 504, 42 CCPA (Pat.) 1022, 1025-1026 (1955).
10
The Commission's report contained the following evaluation of the current state of the law with respect to computer program patentability:
"Uncertainty now exists as to whether the statute permits a valid patent to be granted on programs. Direct attempts to patent programs have been rejected on the ground of nonstatutory subject matter. Indirect attempts to obtain patents and avoid the rejection, by drafting claims as a process, or a machine or components thereof programmed in a given manner, rather than as a program itself, have confused the issue further and should not be permitted." Report of the President's Commission on the Patent System, "To Promote the Progress of . . . Useful Arts" in an Age of Exploding Technology 14 (1966).
11
The Patent Office guidelines were based primarily upon the mental-steps doctrine and the Cochrane v. Deener, 94 U.S. 780, 24 L.Ed. 139 (1877), definition of "process." See 829 Off.Gaz.Pat.Off. 865 (Aug. 16, 1966); 33 Fed.Reg. 15609 (1968).
12
Judge Kirkpatrick, joined by Chief Judge Worley, wrote a vigorous dissent objecting to the majority's decision to abandon "a rule which is about as solidly established as any rule of the patent law." 397 F.2d, at 868, 55 CCPA (Pat.), at 1457. Unlike the majority, the dissenting judges did not consider the doctrine inequitable or silly, and they observed that it had functioned in a satisfactory manner in the past. Id., at 869, 55 CCPA (Pat.), at 1457-1458. In addition, they considered the doctrine to be so well established that it had been adopted by implication in the Patent Act of 1952. Id., at 869, 55 CCPA (Pat.), at 1458.
13
In Prater, the patent application claimed an improved method for processing spectrographic data. The method analyzed conventionally obtained data by using well-known equations. The inventors had discovered a particular mathematical characteristic of the equations which enabled them to select the specific subset of equations that would yield optimum results. The application disclosed an analog computer as the preferred embodiment of the invention, but indicated that a programmed digital computer could also be used. 415 F.2d, at 1379-1380, 56 CCPA (Pat.), at 1362-1363. The Patent Office had rejected the process claims on a mental-steps theory because the only novel aspect of the claimed method was the discovery of an unpatentable mathematical principle. The apparatus claim was rejected essentially because, when the mathematical principle was assumed to be within the prior art, the claim disclosed no invention entitled to patent protection. Id., at 1381, 1399, 56 CCPA (Pat.), at 1364-1365, 1375.
14
It is interesting to note that the Court of Customs and Patent Appeals in the second Prater opinion expressly rejected the Patent Office's procedure for analyzing the apparatus claim pursuant to which the mathematical principle was treated as though it were within the prior art. 415 F.2d, at 1405-1406, 56 CCPA (Pat.), at 1397. This precise procedure, of course, was later employed by this Court in Parker v. Flook, 437 U.S. 584, 98 S.Ct. 2522, 57 L.Ed.2d 451 (1978).
15
Under the "point of novelty" approach, if the novelty or advancement in the art claimed by the inventor resided solely in a step of the process embodying a mental operation or other unpatentable element, the claim was rejected under § 101 as being directed to nonstatutory subject matter. See Blumenthal & Riter, Statutory or Non-Statutory?: An Analysis of the Patentability of Computer Related Inventions, 62 J.Pat.Off.Soc. 454, 457, 461, 470 (1980).
16
The author of the second Prater opinion, Judge Baldwin, disagreed with the Musgrave "technological arts" standard for process claims. He described that standard as "a major and radical shift in this area of the law." 431 F.2d, at 893-894, 57 CCPA (Pat.), at 1367. As Judge Baldwin read the majority opinion, claims drawn solely to purely mental processes were now entitled to patent protection. Id., at 895-896, 57 CCPA (Pat.), at 1369. Judge Baldwin's understanding of Musgrave seems to have been confirmed in In re Foster, 438 F.2d 1011, 1014-1015, 58 CCPA (Pat.) 1001, 1004-1005 (1971).
17
In the interval between the two Benson decisions, the Court of Customs and Patent Appeals decided several cases in which it addressed the patentability of computer-related inventions. In In re McIlroy, 442 F.2d 1397, 58 CCPA (Pat.) 1249 (1971), and In re Waldbaum, 457 F.2d 997, 59 CCPA (Pat.) 940 (1972), the court relied primarily upon Musgrave and Benson. In In re Ghiron, 442 F.2d 985, 58 CCPA (Pat.) 1207 (1971), the court reaffirmed Tarczy-Hornoch's rejection of the "function of a machine" doctrine.
18
Although the Court did not discuss the mental-steps doctrine in Benson, some commentators have suggested that the Court implicitly relied upon the doctrine in that case. See, e. g., Davis, supra, n. 2, at 14, and n. 92. Other commentators have observed that the Court's analysis in Benson was entirely consistent with the mental-steps doctrine. See, e. g., Comment, Computer Program Classification: A Limitation on Program Patentability as a Process, 53 Or.L.Rev. 501, 517-518, n. 132 (1974).
19
The decision of the Court of Customs and Patent Appeals was reversed by this Court on other grounds in Dann v. Johnston, 425 U.S. 219, 96 S.Ct. 1393, 47 L.Ed.2d 692 (1976).
20
In addition to interpreting Benson, the majority also maintained that Christensen, despite its point-of-novelty language, had not signalled a return to that form of claim analysis. 545 F.2d, at 158. The court would reaffirm this proposition consistently thereafter. See, e. g., In re de Castelet, 562 F.2d 1236, 1240 (1977); In re Richman, 563 F.2d 1026, 1029-1030 (1977); In re Freeman, 573 F.2d 1237, 1243-1244 (1978); In re Toma, 575 F.2d 872, 876 (1978); In re Walter, 618 F.2d 758, 766-767 (1980).
21
See also In re Deutsch, 553 F.2d 689, 692-693 (Cust. & Pat.App.1977); In re Waldbaum, 559 F.2d 611, 616-617 (Cust. & Pat.App.1977); In re de Castelet, supra, at 1243-1245.
22
This form of claim analysis did not originate with Flook. Rather, the Court derived it from the landmark decision of O'Reilly v. Morse, 15 How. 62, 115, 14 L.Ed. 601 (1854). In addition, this analysis is functionally the same as the point-of-novelty analysis used in conjunction with the mental-steps doctrine. In fact, the Patent Office in the past occasionally phrased its mental-steps rejections in essentially the terms later employed in Flook. See nn. 13-15, supra. See generally Comment, 35 U.S.C. 101 Claim Analysis—The Point of Novelty Approach, 62 J.Pat.Off.Soc. 521 (1980).
23
The Court of Customs and Patent Appeals suggested that the cause of this Court's error was the argument presented by the Solicitor General in Flook. According to the majority, the Solicitor General's briefs "badly, and with a seeming sense of purpose" confused the statutory requirements. 596 F.2d, at 962. The court went on to describe part of the Solicitor General's argument in Flook as "subversive nonsense." 596 F.2d, at 963.
24
See, e. g., In re Johnson, 589 F.2d 1070 (1978); In re Phillips, 608 F.2d 879 (1979); In re Sherwood, 613 F.2d 809 (1980), cert. pending, No. 79-1941.
25
In an opinion written over a century ago, the Court noted:
"A manufacturing process is clearly an art, within the meaning of the law. Goodyear's patent was for a process, namely, the process of vulcanizing india-rubber by subjecting it to a high degree of heat when mixed with sulphur and a mineral salt.
* * * * *
"The mixing of certain substances together, or the heating of a substance to a certain temperature, is a process." Tilghman v. Proctor, 102 U.S. 707, 722, 728, 26 L.Ed. 279 (1881).
See also Corning v. Burden, 15 How. 252, 267 (1854). Modern rubber curing methods apparently still are based in substantial part upon the concept discovered by Goodyear:
"Since the day 120 years ago when Goodyear first heated a mixture of rubber and sulphur on a domestic stove and so discovered vulcanization, this action of heat and sulphur has remained the standard method of converting crude rubber, with all its limitations, into a commercially usable product, giving it the qualities of resistance to heat and cold in addition to considerable mechanical strength.
"Goodyear also conjured up the word 'cure' for vulcanization, and this has become the recognized term in production circles." Mernagh, Practical Vulcanization, in The Applied Science of Rubber 1053 (W. Naunton ed. 1961).
See generally Kimmich, Making Rubber Products for Engineering Uses, in Engineering Uses of Rubber 18, 28-34 (A. McPherson & A. Klemin eds. 1956).
26
"Respondents characterize their contribution to the art to reside in the process of constantly measuring the actual temperature inside the mold." See ante, at 178.
27
Claim 1 is quoted in full in n. 5 of the Court's opinion, ante, at 179. It describes a "method of operating a rubber-molding press for precision molded compounds with the aid of a digital computer." As the Court of Customs and Patent Appeals noted, the improvement claimed in the application consists of "opening the mold at precisely the correct time rather than at a time which has been determined by approximation or guesswork." In re Diehr, 602 F.2d 982, 988 (1979).
28
In the portion of the patent application entitled "Abstract of the Disclosure," the following reference to monitoring the temperature is found:
"An interval timer starts running from the time of mold closure, and the temperature within the mold cavity is measured often, typically every ten seconds. The temperature is fed to a computer. . . ." App. to Pet. for Cert. 38a.
In the portion of the application entitled "Background of the Invention," the following statement is found:
"By accurate and constant calculation and recalculation of the correct mold time under the temperatures actually present in the mold, the material can be cured accurately and can be relied upon to produce very few rejections, perhaps completely eliminating all rejections due to faulty mold cure." Id., at 41a.
And, in the "Summary of the Invention," this statement appears:
"A surveillance system is maintained over the mold to determine the actual mold temperature substantially continuously, for example, every ten seconds, and to feed that information to the computer along with the pertinent stored data and along with the elapsed time information." Ibid.
Finally, in a description of a simple hypothetical application using the invention described in Claim 1, this is the reference to the temperature-reading device:
"Thermocouples, or other temperature-detecting devices, located directly within the mold cavity may read the temperature at the surface where the molding compound touches the mold, so that it actually gets the temperature of the material at that surface." Id., at 45a.
29
Id., at 24a.
30
These elements of the rubber-curing process apparently have been well known for years. The following description of the vulcanization process appears in a text published in 1961:
"Vulcanization is too important an operation to be left to human control, however experienced and conscientious. Instrumentation makes controlled cure possible, and in consequence instrument engineering is a highly important function in the modern rubber factory, skilled attention being necessary, not only in the maintenance of the instruments but also in their siting. There are instruments available which will indicate, record or control all the services involved in vulcanization, including time, temperature and pressure, and are capable of setting in motion such operations as the opening and closing of molds and, in general, will control any process variable which is capable of being converted into an electric charge or pneumatic or hydraulic pressure impulse." Mernagh, supra n. 25, at 1091-1092.
31
Commentators critical of the Flook decision have noted the essential similarity of the two inventions:
"The Diehr invention improved the control system by continually remeasuring the temperature and recalculating the proper cure time. The computer would simultaneously keep track of the elapsed time. When the elapsed time equalled the proper cure time, the rubber would be released automatically from the mold.
"The facts are difficult to distinguish from those in Flook. Both processes involved (1) an initial calculation, (2) continual remeasurement and recalculation, and (3) some control use of the value obtained from the calculation." Novick & Wallenstein, supra n. 5, at 326 (footnotes omitted).
32
Indeed, the most significant distinction between the invention at issue in Flook and that at issue in this case lies not in the characteristics of the inventions themselves, but rather in the drafting of the claims. After noting that "[t]he Diehr claims are reminiscent of the claims in Flook," Blumenthal & Riter, supra n. 15, at 502-503 (footnote omitted), the authors of a recent article on the subject observe that the Court of Customs and Patent Appeals' analysis in this case "lends itself to an interesting exercise in claim drafting." Id., at 505. To illustrate their point, the authors redrafted the Diehr and Lutton claims into the format employed in the Flook application:
"An improved method of calculating the cure time of a rubber molding process utilizing a digital computer comprising the steps of:
"a. inputting into said computer input values including
"1. natural logarithm conversion data ([l]n),
"2. an activation energy constant (C) unique to each batch of rubber being molded,
"3. a constant (X) dependent upon the geometry of the particular mold of the press, and
"4. continuous temperature values (Z) of the mold during molding;
"b. operating said computer for
"1. counting the elapsed cure time,
"2. calculating the cure time from the input values using the Arrhenius equation [l]n V = CZ + X, where V is the total cure time, and
"c. providing output signals from said computer when said calculated cure time is equal to said elapsed cure time." Ibid.
The authors correctly conclude that even the lower court probably would have found that this claim was drawn to unpatentable subject matter under § 101. Id., at 505-506.
33
In addition to confusing the requirements of §§ 101 and 102, the Court also misapprehends the record in this case when it suggests that the Diehr and Lutton patent application may later be challenged for failure to satisfy the requirements of §§ 102 and 103. See ante, at 191. This suggestion disregards the fact that the applicants overcame all objections to issuance of the patent except the objection predicated on § 101. The Court seems to assume that §§ 102 and 103 issues of novelty and obviousness remain open on remand. As I understand the record, however, those issues have already been resolved. See Brief for Respondents 11-14; Reply Memorandum for Petitioner 3-4, and n. 4. Therefore, the Court is now deciding that the patent will issue.
34
The early cases that the Court of Customs and Patent Appeals refused to follow in Prater, Musgrave, and Benson had recognized the distinction between the § 101 requirement that what the applicant claims to have invented must be patentable subject matter and the § 102 requirement that the invention must actually be novel. See, e. g., In re Shao Wen Yuan, 188 F.2d, at 382-383, 38 CCPA (Pat.), at 973-976; In re Abrams, 188 F.2d, at 169, 38 CCPA (Pat.), at 951-952; In re Heritage, 150 F.2d, at 556, 558, 32 CCPA (Pat.), at 1173-1174, 1176-1177; Halliburton Oil Well Cementing Co. v. Walker, 146 F.2d, at 821, 823. The lower court's error in this case, and its unenthusiastic reception of Gottschalk v. Benson and Parker v. Flook, is, of course, consistent with its expansive reading of § 101 in Tarczy-Hornoch, Prater, and their progeny.
35
The Court's opinion in Flook itself pointed out this distinction:
"The obligation to determine what type of discovery is sought to be patented must precede the determination of whether that discovery is, in fact, new or obvious." 437 U.S., at 593, 98 S.Ct., at 2527.
As the Court of Customs and Patent Appeals noted in this case, "for the claim to be statutory, there must be some substance to it other than the recitation and solution of the equation or formula." 602 F.2d, at 988. See Comment, 62 J.Pat.Off.Soc., supra n. 22, at 522-523.
36
The Court fails to focus upon what Diehr and Lutton claim to have discovered apparently because it believes that this method of analysis would improperly import novelty considerations into § 101. See ante, at 188-191, 193, n. 15. Rather than directing its attention to the applicants' claimed discovery, the Court instead focuses upon the general industrial context in which the applicants intend their discovery to be used. Implicit in this interpretation of the patent application is the assumption that, as long as the claims describe a specific implication of the applicants' discovery, patentable subject matter is defined. This assumption was expressly rejected in Flook :
"This assumption is based on respondent's narrow reading of Benson, and is as untenable in the context of § 101 as it is in the context of that case. It would make the determination of patentable subject matter depend simply on the draftsman's art and would ill serve the principles underlying the prohibition against patents for 'ideas' or phenomena of nature. The rule that the discovery of a law of nature cannot be patented rests, not on the notion that natural phenomena are not processes, but rather on the more fundamental understanding that they are not the kind of 'discoveries' that the statute was enacted to protect." 437 U.S., at 593, 98 S.Ct., at 2527 (footnote omitted).
37
A few excerpts from the original patent application will emphasize this point:
"The invention will probably best be understood by first describing a simple example, in which a single mold is involved and in which the information is relatively static.
* * * * *
"A standard digital computer may be employed in this method. It has a data storage bank of suitable size which, of course, may vary when many molds are used and when more refinements are employed. However, Fig. 1 shows a relatively simple case which achieves results that are vast improvements over what has been done up to now. . . .
"The data bank of the computer is provided with a digital input into which the time-temperature cure data for the compound involved is fed, as shown in Fig. 1. All the data is available to the computer upon call, by random access, and the call can be automatic depending upon the temperature actually involved. In other words, the computer over and over questions the data storage, asking, what is the proper time of cure for the following summation of temperatures? The question may be asked each second, and the answer is readily provided.
* * * * *
"Recalculation continues until the time that has elapsed since mold closure corresponds with the calculated time. Then, the computer actuates the mold-opening device and the mold is automatically opened." App. to Pet. for Cert. 43a-45a.
The Figure 1 referred to in the application is as follows:
Id., at 53a.
38
In Benson, we explained the term "algorithm" in the following paragraph:
"The patent sought is on a method of programming a general-purpose digital computer to convert signals from binary-coded decimal form into pure binary form. A procedure for solving a given type of mathematical problem is known as an 'algorithm.' The procedures set forth in the present claims are of that kind; that is to say, they are a generalized formulation for programs to solve mathematical problems of converting one form of numerical representation to another. From the generic formulation, programs may be developed as specific applications." 409 U.S., at 65, 93 S.Ct., at 254.
39
In Flook, the Court's analysis of the postsolution activity recited in the patent application turned, not on the relative significance of that activity in the catalytic conversion process, but rather on the fact that that activity was not a part of the applicant's discovery:
"The notion that post-solution activity, no matter how conventional or obvious in itself, can transform an unpatentable principle into a patentable process exalts form over substance. A competent draftsman could attach some form of post-solution activity to almost any mathematical formula; the Pythagorean theorem would not have been patentable, or partially patentable, because a patent application contained a final step indicating that the formula, when solved, could be usefully applied to existing surveying techniques. The concept of patentable subject matter under § 101 is not 'like a nose of wax which may be turned and twisted in any direction. . . .' White v. Dunbar, 119 U.S. 47, 51 [7 S.Ct. 72, 74, 30 L.Ed. 303]." 437 U.S., at 590, 98 S.Ct., at 2525-2526 (footnote omitted).
40
Although the Court of Customs and Patent Appeals erred because it ignored the distinction between the § 101 requirement that the applicant must claim to have discovered a novel process and the § 102 requirement that the discovery must actually be novel, that court correctly rejected the argument that any difference between Claim 11 and the earlier claims was relevant to the § 101 inquiry. See 602 F.2d, at 984, 987-988.
41
This well-established precedent was reviewed in Parker v. Flook :
"Mackay Radio and Funk Bros. point to the proper analysis for this case: The process itself, not merely the mathematical algorithm, must be new and useful. Indeed, the novelty of the mathematical algorithm is not a determining factor at all. Whether the algorithm was in fact known or unknown at the time of the claimed invention, as one of the 'basic tools of scientific and technological work,' see Gottschalk v. Benson, 409 U.S., at 67, 93 S.Ct., at 255, it is treated as though it were a familiar part of the prior art." 437 U.S., at 591-592, 98 S.Ct., at 2526-2527.
42
For example, the Association of Data Processing Service Organizations, appearing as amicus curiae in Flook, made the following policy argument:
"The need of the incentive of patents for software is at least as great as that of the incentive available for hardware, because: 'Today, providing computer software involves greater . . . risk than providing computer . . . hardware. . . .'
"To a financial giant, the economic value of a patent may not loom large; to the small software products companies upon which the future of the development of quality software depends, the value of the patent in financing a small company may spell the difference between life and death. To banks and financial institutions the existence of a patent or even the potentiality of obtaining one may well be a decisive factor in determining whether a loan should be granted. To prospective investors a patent or the possibility of obtaining one may be the principal element in the decision whether to invest.
"Making clear that patents may be available for inventions in software would unleash important innovative talent. It would have the direct opposite effect forecast by the . . . hardware manufacturers; it would enable competition with those companies and provide the needed incentive to stimulate innovation." Brief for ADAPSO as Amicus Curiae in Parker v. Flook, O.T. 1977, No. 77-642, p. 44 (footnote omitted).
43
Gemignani, supra n. 1, at 309. In a footnote to that comment, Professor Gemignani added that the rate of growth of the software industry "has been even faster lately than that of the hardware industry which does enjoy patent protections." Id., at 309, n. 259. Other commentators are in accord. See Nycum, Legal Protection for Computer Programs, 1 Computer L.J. 1, 55-58 (1978); Note, Protection of Computer Programs: Resurrection of the Standard, 50 Notre Dame Law 333, 344 (1974).
44
See, e. g., Gemignani, supra n. 1, at 301-312; Keefe & Mahn, Protecting Software: Is It Worth All the Trouble?, 62 A.B.A.J. 906, 907 (1976).
45
This concern influenced the President's Commission on the Patent System when it recommended against patent protection for computer programs. In its report, the President's Commission stated:
"The Patent Office now cannot examine applications for programs because of the lack of a classification technique and the requisite search files. Even if these were available, reliable searches would not be feasible or economic because of the tremendous volume of prior art being generated. Without this search, the patenting of programs would be tantamount to mere registration and the presumption of validity would be all but nonexistent." Report of the President's Commission, supra n. 10, at 13.
46
It is noteworthy that the position of the Court of Customs and Patent Appeals in the process patent area had been consistent with that of the Commissioner of Patents and Trademarks for decades prior to 1968. As discussed in Part I, supra, in that year the court rejected two longstanding doctrines that would have foreclosed patentability for most computer programs under § 101.
47
A number of authorities have drawn the conclusion that the terms are in fact synonymous. See, e. g., Novick & Wallenstein, supra n. 5, at 333, n. 172; Anderson, Algorithm, 1 Encyclopedia of Computer Science & Technology 364, 369 (J. Belzer, A. Holzman & A. Kent eds. 1975); E. Horowitz & S. Sahni, Fundamentals of Computer Algorithms 2 (1978); A. Tanenbaum, Structured Computer Organization 10 (1976). Cf. Blumenthal & Riter, supra n. 15, at 455-456; Gemignani, supra n. 1, at 271-273, 276, n. 37.
| 78
|
67 L.Ed.2d 140
101 S.Ct. 1037
450 U.S. 156
COMMISSIONER OF INTERNAL REVENUE, Petitioner,v.PORTLAND CEMENT COMPANY OF UTAH.
No. 79-1907.
Argued Jan. 13, 1981.
Decided March 3, 1981.
Syllabus
Respondent mines cement rock and manufactures it into Portland cement. Section 611(a) of the Internal Revenue Code of 1954 allows respondent, as a miner, to deduct from its taxable income a percentage of its gross income from mining as a recoupment of capital investment in the depleting mineral. Because respondent, as an integrated miner-manufacturer, has no actual gross income from mining, it must base its depletion deduction upon a constructive gross income from mining. For each of the tax years at issue in this case, respondent used the proportionate profits method prescribed by the Treasury Regulations to compute such constructive gross income. This method uses the costs of and proceeds from the taxpayer's "first marketable product" to derive the constructive gross income. The regulations define "first marketable product" as "the product (or group of essentially the same products) produced by the taxpayer as a result of the application of nonmining processes, in the form or condition in which such product or products are first marketed in significant quantities by the taxpayer." The regulations provide that bulk and packaged products are considered to be essentially the same product for this purpose. The method required respondent to derive the portion of total proceeds that reflects the ratio between its mining costs and its total costs. Under the regulations, respondent must include in the total-costs figure "all the mining and nonmining costs paid or incurred to produce, sell and transport the first marketable product." Respondent took the position that its "first marketable product" was cement sold in bulk, rather than all cement sold, whether in bulk or in bags. The costs of bags and bagging exceeded respondent's bagging premium (the increase in proceeds for selling cement in bags). Hence, respondent did not include proceeds from the sale of cement in bags in the total-proceeds figure of the proportionate profits method. Nor did respondent include in the total-costs figure of the method the costs incurred for bags, bagging, storage, distribution, and sales. The result was that the proportionate profits method yielded a greater constructive gross income from mining, and respondent reported a correspondingly greater depletion deduction, thanit would have if it had included those proceeds in costs in its computation by such method. Petitioner Commissioner of Internal Revenue determined that respondent's tax liabilities were deficient, taking the position that respondent's "first marketable product" is cement, whether sold in bulk or in bags, and that respondent should have included proceeds from its sale of bagged cement in its calculation by the method, and also the costs incurred for bags, bagging, storage, distribution, and sales. Respondent then filed suit in the Tax Court for a redetermination. That court accepted respondent's position, and the Court of Appeals affirmed.
Held : The Treasury Regulations defining "first marketable product" and prescribing the treatment of the costs of bags, bagging, storage, distribution, and sales support the Commissioner's position. Pp. 169.
(a) This Court customarily defers to Treasury Regulations that "implement the congressional mandate in some reasonable manner." United States v. Correll, 389 U.S. 299, 307, 88 S.Ct. 445, 450, 19 L.Ed.2d 537. P. 169.
(b) Respondent's contention that the Commissioner's position will yield a distorted constructive gross income from mining if it is applied without regard to the particular circumstances in this case, i. e., that respondent's bagging costs exceed its bagging premium, misperceives both the meaning of "gross income from mining" and the holding in United States v. Cannelton Sewer Pipe Co., 364 U.S. 76, 80 S.Ct. 1581, 4 L.Ed.2d 1581. Under the Code and regulations, gross income from mining means income received, whether actually or constructively, without regard to value. In Cannelton, in interpreting an earlier statutory definition of "mining," the Court said that "Congress intended integrated mining-manufacturing operations to be treated as if the operator were selling the mineral mined to himself for fabrication." Id., at 89, 80 S.Ct., at 1588. This statement, in the context in which it occurs, does not support respondent's contention that the method used to determine constructive gross income must take into account forces that might cause income to differ from value. Nor does the difference between bagging costs and the bagging premium warrant a deviation from the regulation's definition of "first marketable product." Pp. 170-173.
(c) The statutory definition of "mining" to include all processes up to the introduction of the kiln feed into the kiln, "but not . . . any subsequent processes," forecloses respondent's further contention that the costs it incurred in the storage, distribution, and sales of its first marketable product, if they must be included in the proportionate profits method, should be treated as indirect costs which benefit the entire mining-manufacturing operation, and hence should be allocated between mining and manufacturing. The regulations recognizing thatstorage, distribution, and sales are "subsequent processes" are reasonable. Pp. 173-174.
10th Cir., 614 F.2d 724, reversed.
Stuart A. Smith, Washington, D. C., for petitioner.
Dennis P. Bedell, Washington, D. C., for respondent.
Justice POWELL delivered the opinion of the Court.
1
This case concerns the depletion deduction taken under § 611 of the Internal Revenue Code of 1954, 26 U.S.C. § 611, by a company that mines and manufactures Portland cement. The question presented is whether the company's "first marketable product," for the purpose of determining gross income from mining by the proportionate profits method, is cement, whether sold in bulk or in bags, or only cement sold in bulk.
2
* Respondent, Portland Cement Co. of Utah, is an integrated miner-manufacturer. It mines argillaceous limestone rock, known in the trade as cement rock, and it manufactures the rock into Portland cement.1 As a miner respondent is allowed by § 611(a)2 to deduct from its taxable income an amount that permits it a recoupment of capital investment in the depleting mineral. Section 611(a) provides:
3
"In the case of mines, oil and gas wells, other natural deposits, and timber, there shall be allowed as a deduction in computing taxable income a reasonable allowance for depletion and for depreciation of improvements, according to the peculiar conditions in each case; such reasonable allowance in all cases to be made under regulations prescribed by the Secretary . . . ."
4
The amount which respondent may deduct is a percentage of its "gross income from the property." 26 U.S.C. § 613(a).3 In respondent's case, gross income from property means "gross income from mining."4 Thus, respondent may deduct from its taxable income a percentage of the gross income it receives from mining.
5
If respondent were only a miner and therefore sold the product of its mining, respondent's gross income from mining would be the receipts from its sales. But as an integrated miner-manufacturer, respondent itself uses the product of its mining.5 Respondent therefore has no actual gross income from mining and must base its depletion deduction upon a constructive gross income from mining. See United States v. Cannelton Sewer Pipe Co., 364 U.S. 76, 86, 80 S.Ct. 1581, 1587, 4 L.Ed.2d 1581 (1960).
6
The Commissioner of Internal Revenue, petitioner here, has prescribed in Treasury Regulations two methods of determining constructive gross income from mining. If other miners in the industry sell the product of their mining on an open market, then miners who do not sell their product must use "the representative market or field price" to compute their constructive gross income from mining. Treas.Reg. § 1.613-4(c), 26 CFR § 1.613-4(c) (1980). If other miners do not sell their mining product and a representative marketor field price cannot be determined, as is the case in the integrated cement industry, then constructive gross income from mining must be determined by the "proportionate profits method." § 1.613-4(d). In addition to providing these two methods, the Commissioner also has provided that a taxpayer may compute a constructive gross income from mining by any other method that, upon the taxpayer's request, the Commissioner determines to be more appropriate than the proportionate profits method under the taxpayer's particular circumstances. § 1.613-4(d)(1)(ii).6 For each of the tax years at issue in this case, respondent used the proportionate profits method to compute its constructive gross income from mining.7
7
The proportionate profits method uses the costs of and proceeds from the taxpayer's "first marketable product" to derive the taxpayer's constructive gross income from mining. The principle of the method is that each dollar of the total costs which the taxpayer incurs to produce, sell, and transport its first marketable product earns the same proportionate part of the proceeds from sales of that product. § 1.613-4(d)(4)(i). The objective of the method is to identify—from among the total proceeds from sales of the first marketable product—that portion of the proceeds that has been earned by the costs which the taxpayer incurred in its mining operations. To identify that portion of the proceeds, the formula requires the taxpayer to apportion the total proceeds from its first marketable product between mining income and total income in the same ratio as its mining costs bear to its total costs. The amount of proceeds which bears the samerelationship to total proceeds as mining costs bear to total costs is the taxpayer's constructive gross income from mining.8
8
On its returns for the tax years in question, respondent took the position that its first marketable product was cement sold in bulk. Respondent sells most of its cement in bulk, by loading finished cement directly from silos into customers' trucks or railroad tank cars. But respondent also sells cement in bags to customers who want to buy relativelysmall quantities.9 Cement is bagged by running it from the storage silo into a bin above a bagging machine, which then pours the cement into bags and seals them. The cost that respondent incurs for bags and bagging exceeds the increase in proceeds, known as the bagging premium, that respondent receives for selling cement in bags.10 Respondent still receives a profit on the cement it sells in bags, but less profit than if it had sold the cement in bulk.11
9
Because respondent considered its first marketable product to be cement sold in bulk rather than all cement sold, whether in bulk or in bags, respondent did not include proceeds from the sale of cement in bags in the total-proceeds figure of the proportionate profits method. Nor did respondent include in the total-costs figure the costs it incurred for bags, bagging, storage, distribution, and sales.12 The result of this position was that the proportionate profits method yielded a greater constructive gross income from mining, and respondent reported a correspondingly greater depletion deduction, than would have been the case if respondent had included those proceeds and costs in its computation by the method.
10
After an audit, the Commissioner determined that respondent's reported tax liabilities were deficient.13 The Commissioner took the position that respondent's first marketable product is cement, whether sold in bulk or in bags, that respondent therefore should have included proceeds from its sales of bagged cement in its total-proceeds figure, and also that respondent should have included in its total-costs figure the costs it incurred for bags, bagging, storage, distribution, and sales. Respondent then filed this suit in the Tax Court for a redetermination.
11
The Tax Court, following its rule of applying the law of the court of appeals to which an appeal would be taken,14 relied upon United States v. Ideal Basic Industries, Inc., 404 F.2d 122 (CA10 1968), cert. denied, 395 U.S. 936, 89 S.Ct. 1997, 23 L.Ed.2d 451 (1969), and accepted respondent's position. 36 TCM 578 (1977), ¶ 77,137 P-H Memo TC. Ideal Basic Industries had held that cement sold in bulk is the first marketable product of an integrated miner-manufacturer and that revenues from sales of cement in bags, and the costs of bags, bagging, storage, distribution, and sales, should not be included in calculations under the proportionate profits method. 404 F.2d at 125-126. The Court of Appeals for the Tenth Circuit affirmed, also adhering to Ideal Basic Industries. 614 F.2d 724 (1980) (per curiam). It rejected the Commissioner's argument that Treasury Regulations dictate the opposite result. We granted the Commissioner's petition for a writ of certiorari because other Courts of Appeals have accepted the Commissioner's position in cases with substantially identical facts.15 449 U.S. 818, 101 S.Ct. 69, 66 L.Ed.2d 20 (1980). We now reverse.
II
12
Congress requires in § 611 that the allowance of the depletion deduction is "in all cases to be made under regulations prescribed by the Secretary." The Commissioner provided the proportionate profits method pursuant to this delegation of authority.16 Also pursuant to this authority, the Commissioner has promulgated regulations which specifically address the questions before us. We find these regulations dispositive.
13
The Treasury Regulations define "first marketable product" as "the product (or group of essentially the same products) produced by the taxpayer as a result of the application of nonmining processes, in the form or condition in which such product of products are first marketed in significant quantities by the taxpayer or by others in the taxpayer's marketing area." 26 CFR § 1.613-4(d)(4)(iv) (1980). This definition continues:
14
"For this purpose, bulk and packaged products are considered to be essentially the same product. . . . The first marketable product or group of products does not include any product which results from additional manufacturing or other nonmining processes applied to the product or products first marketed in significant quantities by the taxpayer or others in the taxpayer's marketing area. For example, if a cement manufacturer sells his own finished cement in bulk and bags and also sells concrete blocks or dry ready-mix aggregates containing additives, the finished cement, in bulk and bags, constitutes the first marketable product or group of products produced by him."
15
This regulation supports the Commissioner's position that cement sold in bulk is the same product as cement sold in bags, and that the container for the cement—whether a tank car supplied by the customer or a bag supplied by respondent—does not distinguish cement in bulk from cement in bags for the purpose of determining respondent's first marketable product. Federal Courts of Appeals other than the court below have relied on the regulation to uphold the Commissioner's position. General Portland Cement Co. v. United States, 628 F.2d 321, 323 (CA5 1980), cert. pending, No. 80-1211; United States v. California Portland Cement Co., 413 F.2d 161 (CA9 1969). Indeed, the Commissioner's position also is supported by respondent's stipulation in the Tax Court that "[t]hat portion of its cement sold . . . in bags is the same material as the cement sold in bulk."
16
The Treasury Regulations also support the Commissioner's position that respondent must include in the total-costs figure of the method the costs of bags, bagging, storage, and distribution. To derive the portion of total proceeds that reflects the ratio between respondent's mining costs and its total costs, respondent must include in the total-costs figure "all the mining and nonmining costs paid or incurred to produce, sell, and transport the first marketable product." 26 CFR § 1.613-4(d)(4)(ii) (1980). The exclusion of nonmining costs from the total-costs figure has the effect of including the proportionate profits earned by such costs within respondent's depletion base. Such inclusion enhancesrespondent's depletion base by proceeds that were not earned by respondent's mining operation, and accordingly respondent's depletion deduction becomes a recoupment for more than the exhaustion of respondent's mine. It is undisputed, however, that Congress allows the depletion deduction to permit recoupment for the exhaustion of the mineral only. See United States v. Cannelton Sewer Pipe Co., 364 U.S., at 81, 85-86, 80 S.Ct., at 1584, 1586-1587; Commissioner v. Southwest Exploration Co., 350 U.S. 308, 312, 76 S.Ct. 395, 397, 100 L.Ed. 347 (1956); General Portland Cement Co. v. United States, supra, at 322. It also is undisputed that the Treasury Regulations classify the costs of bags, bagging, storage, and distribution as nonmining costs. 26 CFR § 1.613-4(d)(3)(iii) (1980).17 Courts of Appeals have accepted the Commissioner's position on this question also. General Portland Cement Co. v. United States, supra, at 326; Southwestern Portland Cement Co. v. United States, 435 F.2d 504, 508, 510 (CA9 1970); United States v. California Portland Cement Co., supra, at 168-169; Whitehall Cement Manufacturing Co. v. United States, 369 F.2d 468, 473-474 (CA3 1966).
17
Finally, the Treasury Regulations support the Commissioner's position that respondent must include as nonmining costs the costs incurred in selling the first marketable product. The regulations provide that integrated miner-manufacturers must treat sales expenses as nonmining costs absent evidence that unintegrated mines typically incur such expenses in selling their mineral product. §§ 1.613-4(d)(3)(iv), 1.613-5(c)(4)(ii).18 These regulations simply recognize that sales of finished cement occur after the point at which an integrated miner-manufacturer's mining phase ends and its manufacturing phase begins. See 26 U.S.C. § 613(c)(4)(F); cf. General Portland Cement Co. v. United States, supra, at 333. Integrated miner-manufacturers may allocate selling costs between their mining and manufacturing phasesif they can show that integrated miners typically incur selling expenses, for that maintains a parity of tax treatment between integrated miner-manufacturers and unintegrated miners. But respondent has not put forth such evidence in this case, there being no unintegrated miners in the cement industry.
18
These regulations command our respect, for Congress has delegated to the Secretary of the Treasury, not to this Court, the task "of administering the tax laws of the Nation." United States v. Cartwright, 411 U.S. 546, 550, 93 S.Ct. 1713, 1716, 36 L.Ed.2d 528 (1973); accord, United States v. Correll, 389 U.S. 299, 307, 88 S.Ct. 445, 450, 19 L.Ed.2d 537 (1967); see 26 U.S.C. § 7805(a). We therefore must defer to Treasury Regulations that "implement the congressional mandate in some reasonable manner." United States v. Correll, supra, at 307, 88 S.Ct., at 450; accord, National Muffler Dealers Assn. v. United States, 440 U.S. 472, 476-477, 99 S.Ct. 1304, 1307, 59 L.Ed.2d 519 (1979). To put the same principle conversely, Treasury Regulations "must be sustained unless unreasonable and plainly inconsistent with the revenue statutes." Commissioner v. South Texas Lumber Co., 333 U.S. 496, 501, 68 S.Ct. 695, 698, 92 L.Ed. 831 (1948); accord, Fulman v. United States, 434 U.S. 528, 533, 98 S.Ct. 841, 845, 55 L.Ed.2d 1 (1978); Bingler v. Johnson, 394 U.S. 741, 749-751, 89 S.Ct. 1439, 1444-1445, 22 L.Ed.2d 695 (1969). Indeed, our customary deference to Treasury Regulations is particularly appropriate in this case, for the Court previously has recognized the necessity of a "broad rule-making delegation" of authority in the area of depletion: "As Congress obviously could not foresee the multifarious circumstances which would involve questions of depletion, it delegated to the Commissioner the duty of making the regulations." Douglas v. Commissioner, 322 U.S. 275, 280, 281, 64 S.Ct. 988, 991, 992, 88 L.Ed. 1271 (1944);19 accord, Helvering v. Wilshire Oil Co., Inc., 308 U.S. 90, 102-103, 60 S.Ct. 18, 25, 84 L.Ed. 101 (1939).
III
19
Respondent does not contend that these Treasury Regulations are either unreasonable on their face or inconsistent with the Code. To the contrary, respondent acknowledges that several courts have found the regulations to prescribe a reasonable formula for determining gross income from mining in cases where no actual income is realized and no representative market price is available. Respondent's contention is that the Commissioner's position will yield a distorted constructive gross income from mining if it is applied without regard to the particular circumstances in this case.
A.
20
Respondent's position rests upon (i) an assumption about gross income from mining and (ii) an interpretation of this Court's decision in United States v. Cannelton Sewer Pipe Co., 364 U.S. 76, 80 S.Ct. 1581, 4 L.Ed.2d 1581 (1960). Respondent deems "gross income from mining," for the purpose of the percentage depletion deduction, to be the same thing as "the market value of the extracted mineral" at the end of the mining phase, Brief for Respondent 14; and respondent reads Cannelton to hold that, for the purpose of determining gross income from mining, the mining phase of an integrated mining-manufacturing operation should be considered one independent business selling its product to another independent business, the manufacturing phase. On the basis of these notions, respondent perceives a potential for distortion of constructive gross income inhering in the premise of the proportionate profits method. The premise of that method is that each dollar of costs, mining and nonmining alike, earns the same proportionate part of the proceeds from the first marketable product. In respondent's view, however, it simply will not be true in some cases that each dollar of costs earns the same share of proceeds. For example, respondent contends, market forces and arm's-length negotiations may so affect market value when an independent miner sells to an independent manufacturer that it will not be true that each dollar of cost earns the same share of proceeds; and respondent contends that it certainly is not true in this case that each of its dollars of cost earned the same share of proceeds, for the cost of bags and bagging exceeds the bagging premium.
21
Respondent does not conclude from this reasoning that the proportionate profits method is unreasonable in itself. Rather, it argues that the method will distort constructive gross income from mining to the extent that the particular facts of a case deviate from the method's premise, and that the possibility of distortion increases as costs and proceeds attending postmining processes are included. To remedy this, respondent asks that the Commissioner take into account the "peculiar" circumstance that respondent's bagging costs exceed its bagging premium.20 If this were done, respondent says, the distortion that it perceives could be obviated by considering its first marketable product to be only cement sold in bulk, not cement sold both in bulk and in bags. If only bulk sales are considered to be the first marketable product, then the proceeds from cement sold in bags, and the costs of bags, bagging, storage, and distribution, willbe excluded from the proportionate profits method. This was essentially the reasoning and holding of Ideal Basic Industries, 404 F.2d, at 125-127.
22
We cannot accept respondent's contention for it misperceives both the meaning of "gross income from mining" and the holding in Cannelton. Respondent cites nothing to support the assumption that gross income from mining means market value of the mining product. The language of §§ 613(a) and (c) does not support this assumption; and Helvering v. Mountain Producers Corp., 303 U.S. 376, 381-382, 58 S.Ct. 623, 625, 82 L.Ed. 907 (1938), rejected it.21 See also Commissioner v. Southwest Exploration Co., 350 U.S., at 312, 76 S.Ct., at 397. Under the Code and regulations, gross income from mining means income received, whether actually or constructively, without regard to value. Nor does Cannelton support respondent's argument. That case did not involve the proportionate profits method of determining constructive gross income from mining. The question there, under an earlier statutory definition of "mining," was when the mining phase ended in the operation of an integrated miner-manufacturer of burnt clay products. See 364 U.S., at 84, and n. 8, 80 S.Ct., at 1585, and n. 8. In interpreting the definition of "mining," the Court observed that "the Congress intended integratedmining-manufacturing operations to be treated as if the operator were selling the mineral mined to himself for fabrication." Id., at 89, 80 S.Ct., at 1588. This statement, in the context in which it occurs, does not support respondent's contention that the method used to determine constructive gross income must take into account forces that might cause income to differ from value.
23
Nor does the difference between bagging costs and the bagging premium warrant a deviation from the Treasury Regulation's definition of "first marketable product." Respondent receives a net profit on every bag of cement that it sells, despite the fact that bagging costs exceed markup on the product. It is reasonable to infer, therefore, that the costs of bagging the cement contribute to respondent's profits from sales of cement in bags. Courts of Appeals other than the court below have found this inference reasonable. General Portland Cement Co. v. United States, 628 F.2d, at 330-331; Whitehall Cement Manufacturing Co. v. United States, 369 F.2d, at 474; see also United States v. California Portland Cement, 413 F.2d, at 169.
B
24
There remains only respondent's contention that the costs it incurred in the storage, distribution, and sales of its first marketable product, if they must be included in the proportionate profits method, should be treated as indirect costs which benefit the entire mining-manufacturing operation. For that reason, respondent urges that these costs should be allocated between mining and manufacturing.
25
The statutory definition of "mining" forecloses this contention. Section 613(c)(4)(F) of the Code defines "mining" to include all processes up to the introduction of the kiln feed into the kiln, "but not . . . any subsequent process." The regulations recognize that storage, distribution, and sales are "subsequent process[es]," and we find the regulations reasonable. 26 CFR § 1.613-4(d)(3)(iii) (1980) (storage anddistribution); §§ 1.613-4(d)(3)(iv) and 1.613-5(c)(4)(ii) (sales). These regulations allow a different treatment only for sales expenses. See supra, at 168-169. Respondent, who bore the burden of proof in the Tax Court, made no showing to warrant treating sales expenses as anything but nonmining costs.22
IV
26
In sum, the Treasury Regulations defining first marketable product, and those prescribing the treatment of the costs of bags, bagging, storage, distribution, and sales, dictate the result in this case. To be sure, the proportionate profits method can only approximate gross income from mining. The Commissioner does not contend that the method does more than approximate. But an approximation must suffice absent an actual gross income from mining, and respondent concedes that the proportionate profits method is a reasonable means of approximating. The method also is a means that respondent accepted, as it did not seek the Commissioner's approval of any other method.23 Accordingly, respondent must apply the method as prescribed by the Commissioner.
27
The judgment of the Court of Appeals is reversed.
28
It is so ordered.
1
As suggested by the term "integrated miner-manufacturer," respondent's operation has two phases: mining and manufacturing. The mining phase begins with the blasting of cement rock from the face of respondent's quarry. After crushing the rock into pieces about one cubic inch in size, respondent transports the rock to its processing plant, which is about 12 miles from its quarry in Utah. Respondent then grinds the rock finely and adds water, producing a mud known as "slurry." Respondent feeds the slurry from tanks into fired kilns that heat it into a hard glass-like substance known as a "clinker." Once the clinker is cooled, respondent grinds it with gypsum to produce finished Portland cement. The finished cement is placed in storage silos to await sales to customers.
There is no dispute as to when respondent's mining phase ends and its manufacturing phase begins. Section 613(c)(2) of the Code, 26 U.S.C. § 613(c)(2), defines "mining" to include
"not merely the extraction of the ores or minerals from the ground but also the treatment processes considered as mining described in paragraph (4) (and the treatment processes necessary or incidental thereto), and so much of the transportation of ores or minerals (whether or not by common carrier) from the point of extraction from the ground to the plants or mills in which such treatment processes are applied thereto as is not in excess of 50 miles . . . ." Paragraph (4)(F) of § 613(c) describes the treatment processes considered as mining to be—
"in the case of calcium carbonates and other minerals when used in making cement—all processes (other than preheating of the kiln feed) applied prior to the introduction of the kiln feed into the kiln, but not including any subsequent process."
When these definitions are applied, respondent's mining phase ends when the slurry has been produced and is stored in tanks to await introduction into the kilns. The Tax Court so found, 36 TCM 578, 579 (1977), ¶ 77,137, p. 582, P-H Memo TC, and the parties agree.
2
All citations to the Internal Revenue Code are to the Code of 1954, unless stated otherwise.
3
Section 613(a) reads in pertinent part:
"In the case of the mines, wells, and other natural deposits listed in subsection (b), the allowance for depletion under section 611 shall be the percentage, specified in subsection (b), of the gross income from the property . . . ."
For tax years beginning on or prior to October 9, 1969, the percentage specified by subsection (b) of § 613 for the depletion of calcium carbonates, the chemical name for cement rock, was 15%. 26 U.S.C. § 613(b)(7) (1964 ed.). For tax years beginning after October 9, 1969, the percentage was 14%. 26 U.S.C. § 613(b)(7).
4
Title 26 U.S.C. § 613(c)(1) (1976 ed., Supp.III), provides: "The term 'gross income from the property' means, in the case of a property other than an oil or gas well and other than a geothermal deposit, the gross income from mining."
5
See n.1, supra.
6
The Commissioner himself has suggested two other methods that a taxpayer may propose as more appropriate than the proportionate profits method. See 26 CFR §§ 1.613-4(d)(1)(ii)(e)(5), (6) (1980).
7
The three tax years at issue in this case are those ending on March 31, 1970, 1971, and 1972.
8
The Treasury Regulations explain the proportionate profits method this way:
"(i) The objective of the 'proportionate profits method' of computation is to ascertain gross income from mining by applying the principle that each dollar of the total costs paid or incurred to produce, sell, and transport the first marketable product or group of products (as defined in subdivision (iv) of this subparagraph) earns the same percentage of profit. Accordingly, in the proportionate profits method no ranking of costs is permissible which results in excluding or minimizing the effect of any costs incurred to produce, sell, and transport the first marketable product or group of products. . . .
"(ii) The proportionate profits method of computation is applied by multiplying the taxpayer's gross sales (actual or constructive) of his first marketable product or group of products . . . by a fraction whose numerator is the sum of all the costs allocable to those mining processes which are applied to produce, sell, and transport the first marketable product or group of products, and whose denominator is the total of all the mining and nonmining costs paid or incurred to produce, sell, and transport the first marketable product or group of products . . . . The method as described herein is merely a restatement of the method formerly set forth in the second sentence of Regulations 118, section 39.23(m)-1(e)(3) (1939 Code). The proportionate profits method of computation may be illustrated by the following equation:
Mining Costs Gross Income
------------ X Gross Sales= -------------------
Total Costs from Mining"
26 CFR §§ 1.613-4(d)(4)(i), (ii) (1980).
The Tax Court has captured the gist of the method in fewer words: "The purpose of the proportionate-profits formula is to separate the sales price of a product into its mining and nonmining components." North Carolina Granite Corp. v. Commissioner, 56 T.C. 1281, 1291 (1971).
9
During the tax years in question, respondent sold approximately 92-94% of its finished cement in bulk. Respondent sold the other 6-8% in bags.
10
The parties stipulated in the Tax Court that respondent's bagging costs exceeded the bagging premium by $55,410.88 for tax year 1970, by $66,667.45 for tax year 1971, and by $64,590.41 for tax year 1972.
11
The parties stipulated in the Tax Court "that although for each year there was an excess of costs over bag premium, . . . [respondent] nevertheless realized a net profit on the sale of each bag of cement."
12
To state respondent's position in the formulaic terms used in Treas.Reg. § 1.613-4(d)(4)(ii), 26 CFR § 1.613-4(d)(4)(ii) (1980), respondent did not include proceeds from the sale of cement in bags in the multiplier of the proportionate profits method; and respondent did not include the costs of bags, bagging, storage, distribution, and sales in the denominator of the method's fraction.
13
The asserted deficiencies were $44,200, $41,509, and $7,175 for tax years 1970, 1971, and 1972, respectively. See 36 TCM, at 578, ¶ 77,137, p. 582, P-H Memo TC.
14
See Golsen v. Commissioner, 54 T.C. 742 (1970), aff'd on other grounds, 445 F.2d 985 (CA10), cert. denied, 404 U.S. 940, 92 S.Ct. 284, 30 L.Ed.2d 254 (1971).
15
See General Portland Cement Co. v. United States, 628 F.2d 321 (CA5 1980), cert. pending, No. 80-1211; Arvonia-Buckingham Slate Co. v. United States, 426 F.2d 484 (CA4 1970); United States v. California Portland Cement Co., 413 F.2d 161 (CA9 1969); Whitehall Cement Manufacturing Co. v. United States, 369 F.2d 468 (CA3 1966).
16
The Commissioner has prescribed the computation of gross income from mining by reference to proportionate profits in successive regulations since 1940. The principle now set forth in Treas.Reg. § 1.613-4(d)(4) first appeared in Treas.Regs. 103, § 19.23(m)-1(f) (1940), and it continued in successive regulations to the 1939 Code. Treas.Regs. 111, § 29.23(m)-1(f) (1943); Treas.Regs. 118, § 39.23(m)-(e)(3) (1953). Treasury Regulations 118 continued in force under the 1954 Code until superseded by Treas.Reg. §§ 1.613-3(d)(1)(i), (ii). See T.D. 6965, 1968-2 Cum.Bull. 265. These regulations were superseded by the present Treas.Reg. §§ 1.613-4(d)(1) and (4)(i), (ii), 26 CFR §§ 1.613-4(d)(1) and (4)(i), (ii) (1980). See T.D. 7170, 1972-1 Cum.Bull. 178.
17
Title 26 CFR § 1.613-4(d)(3)(iii) (1980), provides in pertinent part:
"In determining gross income from mining by use of methods based on the taxpayer's costs—
"(a) The costs attributable to containers, bags, packages, pallets, and similar items as well as the costs of materials and labor attributable to bagging, packaging, palletizing, or similar operations shall be considered as nonmining costs.
* * * * *
"(c) The costs attributable to the operation of warehouses or distribution terminals for manufactured products shall be considered as nonmining costs.
"Accordingly, all profits attributable thereto are treated as nonmining profits."
The court below did not dispute the regulations' characterization of these costs. 614 F.2d 724, 725 (1980). To the contrary, United States v. Ideal Basic Industries, Inc., 404 F.2d 122 (CA10 1968), cert. denied, 395 U.S. 936, 89 S.Ct. 1997, 23 L.Ed.2d 451 (1969), concluded before these regulations were promulgated that such costs are nonmining costs. 404 F.2d, at 125-126. But the court, following Ideal Basic Industries, excluded these costs from the proportionate profits method on the ground that they were not incurred in producing and transporting cement sold in bulk. See 614 F.2d, at 726.
18
Title 26 CFR § 1.613-4(d)(3)(iv) (1980), provides:
"In computing gross income from mining by the use of methods based on the taxpayer's costs, the principles set forth in paragraph (c) of § 1.613-5 shall apply when determining whether selling expenses . . . are to be treated, in whole or in part, as mining costs or as nonmining costs. To the extent that selling expenses . . . are treated as nonmining costs, all profits attributable thereto are treated as nonmining profits."
Paragraph (c)(4)(ii) of § 1.613-5, 26 CFR § 1.613-5(c)(4)(ii) (1980), provides:
"A reasonable portion of the expenses of selling a refined, manufactured, or fabricated product shall be subtracted from gross income from the property. Such reasonable portion shall be equivalent to the typical selling expenses which are incurred by unintegrated miners or producers in the same mineral industry so as to maintain equality in the tax treatment of unintegrated miners or producers in comparison with integrated miner-manufacturers or producer-manufacturers. If unintegrated miners or producers in the same mineral industry do not typically incur any selling expenses, then no portion of the expenses of selling a refined, manufactured, or fabricated product shall be subtracted from gross income from the property when determining the taxpayer's taxable income from the property."
19
Douglas v. Commissioner involved § 23, Revenue Act of 1936, which was identical to the present § 611 in all ways significant to this case. See 322 U.S., at 278, 64 S.Ct., at 990.
20
In support of its argument, respondent relies in part upon the language of § 611(a), which provides that the depletion deduction is to be allowed "according to the peculiar conditions in each case." Respondent has read this phrase out of context. In fuller reading, § 611(a) provides:
"In the case of mines, oil and gas wells, other natural deposits, and timber, there shall be allowed as a deduction in computing taxable income a reasonable allowance for depletion and for depreciation of improvements, according to the peculiar conditions in each case; such reasonable allowance in all cases to be made under regulations prescribed by the Secretary. . . ." (Emphasis added.)
Read in context, "in each case" refers to the different types of depletable resource, not to individual taxpayers. Accordingly, this language does not support respondent's argument that the Treasury Regulations providing the proportionate profits method must be modified with regard to the circumstances in each case.
21
Helvering v. Mountain Producers Corp. involved a depletion deduction in the case of oil and gas wells. By contract, the owner of oil-field leases agreed to sell oil to an oil refiner at a set price. In return, the refiner agreed, as part of the price of the oil, to conduct all operations to develop and produce the oil. The owner then claimed that its "gross income from the property," for the purpose of percentage depletion deduction, consisted of the total cash payments received from the refiner, plus the cost of production defrayed by the refiner under the contract. 303 U.S., at 378-379, 58 S.Ct., at 624. The Court rejected this claim. It held that the deductible percentage of gross income "is a fixed factor, not to be increased or lessened by asserted equities," such as the fact that "gross income from time to time may be more or less than market value according to the bearing of particular contracts." Id., at 382, 58 S.Ct., at 625. The Court added: "With the motives which lead the taxpayer to be satisfied with the proceeds he receives we are not concerned." Ibid.
22
Respondent relies upon decisions which hold that an integrated miner-manufacturer may allocate sales expenses between mining and nonmining costs. E. g., United States v. California Portland Cement Co., 413 F.2d, at 170-172. These cases were decided before the issuance in 1972 of Treas.Regs. §§ 1.613-4(d)(3)(iv) and 1.613-5(c)(4)(ii). Prior to 1972, no regulations answered the question whether selling expenses were nonmining costs or allocable between mining and nonmining costs. The 1972 regulations assume, on the basis of the statutory definition of "mining," that they are nonmining costs. Nonetheless, the integrated miner-manufacturer may show otherwise.
23
See supra, at 161, and n. 6.
| 1112
|
450 U.S. 248
101 S.Ct. 1089
67 L.Ed.2d 207
TEXAS DEPARTMENT OF COMMUNITY AFFAIRS, Petitioner,v.Joyce Ann BURDINE.
No. 79-1764.
Argued Dec. 9, 1980.
Decided March 4, 1981.
Syllabus
Respondent filed suit in Federal District Court, alleging, inter alia, that her termination of employment with petitioner was predicated on gender discrimination in violation of Title VII of the Civil Rights Act of 1964. The District Court found that the testimony for petitioner sufficiently had rebutted respondent's allegation of gender discrimination in the decision to terminate her employment. The Court of Appeals reversed this finding, holding that the defendant in a Title VII case bears the burden of proving by a preponderance of the evidence the existence of legitimate, nondiscriminatory reasons for the employment action and also must prove by objective evidence that those hired were better qualified that the plaintiff, and that the testimony for petitioner did not carry either of these burdens.
Held: When the plaintiff in a Title VII case has proved a prima facie case of employment discrimination, the defendant bears only the burden of explaining clearly the nondiscriminatory reasons for its actions. Pp. 252-260.
(a) As set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668, the basic allocation of burdens and order of presentation of proof in a Title VII case, is as follows. First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." Id., at 802, 93 S.Ct., at 1824. third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. The defendant need not persuade the court that it was actually motivated by the proffered reasons, but it is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff. To accomplish this, the defendant must clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiff's rejection. Pp. 252-256.
(b) The Court of Appeals erred by requiring petitioner to prove by a preponderance of the evidence the existence of nondiscriminatory reasons for terminating respondent. By doing this, the court required much more than is required by McDonnell Douglas, supra, and its progeny: it placed on petitioner the burden of persuading the court that it had convincing, objective reasons for preferring the chosen applicant above the respondent. Limiting the defendant's evidentiary obligation to a burden of production will not unduly hinder the plaintiff. Pp. 256-258.
(c) The Court of Appeals also erred in requiring petitioner to prove by objective evidence that the person hired was more qualified than respondent. It is the plaintiff's task to demonstrate that similarly situated employees were not treated equally, but the Court of Appeals' rule would require the employer to show that the plaintiff's objective qualifications were inferior to those of the person selected, and if it cannot, a court would, in effect, conclude that it has discriminated. The Court of Appeals' views can also be read as requiring the employer to hire the minority or female applicant whenever that person's objective qualifications were equal to those of a white male applicant. But Title VII does not obligate an employer to accord this preference. Rather, the employer has discretion to choose among equally qualified candidates, provided the decision is not based upon unlawful criteria. Pp. 258-259.
608 F.2d 563, vacated and remanded.
Gregory Wilson, Austin, Tex., for petitioner, pro hac vice, by special leave of Court.
Hubert L. Gill, Austin, Tex., for respondent.
Justice POWELL delivered the opinion of the Court.
1
This case requires us to address again the nature of the evidentiary burden placed upon the defendant in an employment discrimination suit brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The narrow question presented is whether, after the plaintiff has proved a prima facie case of discriminatory treatment, the burden shifts to the defendant to persuade the court by a preponderance of the evidence that legitimate, nondiscriminatory reasons for the challenged employment action existed.
2
* Petitioner, the Texas Department of Community Affairs (TDCA), hired respondent, a female, in January 1972, for the position of accounting clerk in the Public Service Careers Division (PSC). PSC provided training and employment opportunities in the public sector for unskilled workers. When hired, respondent possessed several years' experience in employment training. She was promoted to Field Services Coordinator in July 1972. Her supervisor resigned in November of that year, and respondent was assigned additional duties. Although she applied for the supervisor's position of Project Director, the position remained vacant for six months.
3
PSC was funded completely by the United States Department of Labor. The Department was seriously concerned about inefficiencies at PSC.1 In February 1973, the Department notified the Executive Director of TDCA, B. R. Fuller, that it would terminate PSC the following month. TDCA officials, assisted by respondent, persuaded the Department to continue funding the program, conditioned upon PSC's reforming its operations. Among the agreed conditions were the appointment of a permanent Project Director and a complete reorganization of the PSC staff.2
4
After consulting with personnel within TDCA, Fuller hired a male from another division of the agency as Project Director. In reducing the PSC staff, he fired respondent along with two other employees, and retained another male, Walz, as the only professional employee in the division. It is undisputed that respondent had maintained her application for the position of Project Director and had requested to remain with TDCA. Respondent soon was rehired by TDCA and assigned to another division of the agency. She received the exact salary paid to the Project Director at PSC, and the subsequent promotions she has received have kept her salary and responsibility commensurate with what she would have received had she been appointed Project Director.
5
Respondent filed this suit in the United States District Court for the Western District of Texas. She alleged that the failure to promote and the subsequent decision to terminate her had been predicated on gender discrimination in violation of Title VII. After a bench trial, the District Court held that neither decision was based on gender discrimination. The court relied on the testimony of Fuller that the employment decisions necessitated by the commands of the Department of Labor were based on consultation among trusted advisers and a nondiscriminatory evaluation of the relative qualifications of the individuals involved. He testified that the three individuals terminated did not work well together, and that TDCA thought that eliminating this problem would improve PSC's efficiency. The court accepted this explanation as rational and, in effect, found no evidence that the decisions not to promote and to terminate respondent were prompted by gender discrimination.
6
The Court of Appeals for the Fifth Circuit reversed in part. 608 F.2d 563 (1979). The court held that the District Court's "implicit evidentiary finding" that the male hired as Project Director was better qualified for that position than respondent was not clearly erroneous. Accordingly, the court affirmed the District Court's finding that respondent was not discriminated against when she was not promoted. The Court of Appeals, however, reversed the District Court's finding that Fuller's testimony sufficiently had rebutted respondent's prima facie case of gender discrimination in the decision to terminate her employment at PSC. The court reaffirmed its previously announced views that the defendant in a Title VII case bears the burden of proving by a preponderance of the evidence the existence of legitimate nondiscriminatory reasons for the employment action and that the defendant also must prove by objective evidence that those hired or promoted were better qualified than the plaintiff. The court found that Fuller's testimony did not carry either of these evidentiary burdens. It, therefore, reversed the judgment of the District Court and remanded the case for computation of backpay.3 Because the decision of the Court of Appeals as to the burden of proof borne by the defendant conflicts with interpretations of our precedents adopted by other Courts of Appeals,4 we granted certiorari. 447 U.S. 920, 100 S.Ct. 3009, 65 L.Ed.2d 1112 (1980). We now vacate the Fifth Circuit's decision and remand for application of the correct standard.
II
7
In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), we set forth the basic allocation of burdens and order of presentation of proof in a Title VII case alleging discriminatory treatment.5 First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." Id., at 802, 93 S.Ct., at 1824. Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Id., at 804, 93 S.Ct., at 1825.
8
The nature of the burden that shifts to the defendant should be understood in light of the plaintiff's ultimate and intermediate burdens. The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff. See Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24, 25, n. 2, 99 S.Ct. 295, 296, n. 2, 58 L.Ed.2d 216 (1978); id., at 29, 99 S.Ct., at 297 (STEVENS, J., dissenting). See generally 9 J. Wigmore, Evidence § 2489 (3d ed. 1940) (the burden of persuasion "never shifts"). The McDonnell Douglas division of intermediate evidentiary burdens serves to bring the litigants and the court expeditiously and fairly to this ultimate question.
9
The burden of establishing a prima facie case of disparate treatment is not onerous. The plaintiff must prove by a preponderance of the evidence that she applied for an available position for which she was qualified, but was rejected under circumstances which give rise to an inference of unlawful discrimination.6 The prima facie case serves an important function in the litigation: it eliminates the most common nondiscriminatory reasons for the plaintiff's rejection. See Teamsters v. United States, 431 U.S. 324, 358, and n. 44, 97 S.Ct. 1843, 1866, n. 44, 52 L.Ed.2d 396 (1977). As the Court explained in Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978), the prima facie case "raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors." Establishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee. If the trier of fact believes the plaintiff's evidence, and if the employer is silent in the face of the presumption, the court must enter judgment for the plaintiff because no issue of fact remains in the case.7
10
The burden that shifts to the defendant, therefore, is to rebut the presumption of discrimination by producing evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason. The defendant need not persuade the court that it was actually motivated by the proffered reasons. See Sweeney, supra, at 25, 99 S.Ct., at 296. It is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff.8 To accomplish this, the defendant must clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiff's rejection.9 The explanation provided must be legally sufficient to justify a judgment for the defendant. If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted,10 and the factual inquiry proceeds to a new level of specificity. Placing this burden of production on the defendant thus serves simultaneously to meet the plaintiff's prima facie case by presenting a legitimate reason for the action and to frame the factual issue with sufficient clarity so that the plaintiff will have a full and fair opportunity to demonstrate pretext. The sufficiency of the defendant's evidence should be evaluated by the extent to which it fulfills these functions.
11
The plaintiff retains the burden of persuasion. She now must have the opportunity to demonstrate that the proffered reason was not the true reason for the employment decision. This burden now merges with the ultimate burden of persuading the court that she has been the victim of intentional discrimination. She may succeed in this either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence. See McDonnell Douglas, 411 U.S., at 804-805, 93 S.Ct., at 1825-1826.
III
12
In reversing the judgment of the District Court that the discharge of respondent from PSC was unrelated to her sex, the Court of Appeals adhered to two rules it had developed to elaborate the defendant's burden of proof. First, the defendant must prove by a preponderance of the evidence that legitimate, nondiscriminatory reasons for the discharge existed. 608 F.2d, at 567. See Turner v. Texas Instruments, Inc., 555 F.2d 1251, 1255 (CA5 1977). Second, to satisfy this burden, the defendant "must prove that those he hired . . . were somehow better qualified than was plaintiff; in other words, comparative evidence is needed." 608 F.2d, at 567 (emphasis in original). See East v. Romine, Inc., 518 F.2d 332, 339-340 (CA5 1975).
A.
13
The Court of Appeals has misconstrued the nature of the burden that McDonnell Douglas and its progeny place on the defendant. See Part II, supra. We stated in Sweeney that "the employer's burden is satisfied if he simply 'explains what he has done' or 'produc[es] evidence of legitimate nondiscriminatory reasons.' " 439 U.S., at 25, n. 2, 99 S.Ct., at 296 n. 2, quoting id., at 28, 29, 99 S.Ct., at 297-298 (STEVENS, J., dissenting). It is plain that the Court of Appeals required much more: it placed on the defendant the burden of persuading the court that it had convincing, objective reasons for preferring the chosen applicant above the plaintiff.11
14
The Court of Appeals distinguished Sweeney on the ground that the case held only that the defendant did not have the burden of proving the absence of discriminatory intent. But this distinction slights the rationale of Sweeney and of our other cases. We have stated consistently that the employee's prima facie case of discrimination will be rebutted if the employer articulates lawful reasons for the action; that is, to satisfy this intermediate burden, the employer need only produce admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus. The Court of Appeals would require the defendant to introduce evidence which, in the absence of any evidence of pretext, would persuade the trier of fact that the employment action was lawful. This exceeds what properly can be demanded to satisfy a burden of production.
15
The court placed the burden of persuasion on the defendant apparently because it feared that "[i]f an employer need only articulate—not prove—a legitimate, nondiscriminatory reason for his action, he may compose fictitious, but legitimate, reasons for his actions." Turner v. Texas Instruments, Inc., supra, at 1255 (emphasis in original). We do not believe, however, that limiting the defendant's evidentiary obligation to a burden of production will unduly hinder the plaintiff. First, as noted above, the defendant's explanation of its legitimate reasons must be clear and reasonably specific. Supra, at 255. See Loeb v. Textron, Inc., 600 F.2d 1003, 1011-1012, n. 5 (CA1 1979). This obligation arises both from the necessity of rebutting the inference of discrimination arising from the prima facie case and from the requirement that the plaintiff be afforded "a full and fair opportunity" to demonstrate pretext. Second, although the defendant does not bear a formal burden of persuasion, the defendant nevertheless retains an incentive to persuade the trier of fact that the employment decision was lawful. Thus, the defendant normally will attempt to prove the factual basis for its explanation. Third, the liberal discovery rules applicable to any civil suit in federal court are supplemented in a Title VII suit by the plaintiff's access to the Equal Employment Opportunity Commission's investigatory files concerning her complaint. See EEOC v. Associated Dry Goods Corp., 449 U.S. 590, 101 S.Ct. 817, 66 L.Ed.2d 762 (1981). Given these factors, we are unpersuaded that the plaintiff will find it particularly difficult to prove that a proffered explanation lacking a factual basis is a pretext. We remain confident that the McDonnell Douglas framework permits the plaintiff meriting relief to demonstrate intentional discrimination.
B
16
The Court of Appeals also erred in requiring the defendant to prove by objective evidence that the person hired or promoted was more qualified than the plaintiff. McDonnell Douglas teaches that it is the plaintiff's task to demonstrate that similarly situated employees were not treated equally. 411 U.S., at 804, 93 S.Ct., at 1825. The Court of Appeals' rule would require the employer to show that the plaintiff's objective qualifications were inferior to those of the person selected. If it cannot, a court would, in effect, conclude that it has discriminated.
17
The court's procedural rule harbors a substantive error. Title VII prohibits all discrimination in employment based upon race, sex, and national origin. "The broad, overriding interest, shared by employer, employee, and consumer, is efficient and trustworthy workmanship assured through fair and . . . neutral employment and personnel decisions." McDonnell Douglas, supra, at 801, 93 S.Ct., at 1823. Title VII, however, does not demand that an employer give preferential treatment to minorities or women. 42 U.S.C. § 2000e-2(j). See Steelworkers v. Weber, 443 U.S. 193, 205-206, 99 S.Ct. 2721, 2728-2729, 61 L.Ed.2d 480 (1979). The statute was not intended to "diminish traditional management prerogatives." Id., at 207, 99 S.Ct., at 2729. It does not require the employer to restructure his employment practices to maximize the number of minorities and women hired. Furnco Construction Corp. v. Waters, 438 U.S. 567, 577-578, 98 S.Ct. 2943, 2949-2950, 57 L.Ed.2d 957 (1978).
18
The views of the Court of Appeals can be read, we think, as requiring the employer to hire the minority or female applicant whenever that person's objective qualifications were equal to those of a white male applicant. But Title VII does not obligate an employer to accord this preference. Rather, the employer has discretion to choose among equally qualified candidates, provided the decision is not based upon unlawful criteria. The fact that a court may think that the employer misjudged the qualifications of the applicants does not in itself expose him to Title VII liability, although this may be probative of whether the employer's reasons are pretexts for discrimination. Loeb v. Textron, Inc., supra, at 1012, n. 6; see Lieberman v. Gant, 630 F.2d 60, 65 (CA2 1980).
IV
19
In summary, the Court of Appeals erred by requiring the defendant to prove by a preponderance of the evidence the existence of nondiscriminatory reasons for terminating the respondent and that the person retained in her stead had superior objective qualifications for the position.12 When the plaintiff has proved a prima facie case of discrimination, the defendant bears only the burden of explaining clearly the nondiscriminatory reasons for its actions. The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.
20
It is so ordered.
1
Among the problems identified were overstaffing, lack of fiscal control, poor bookkeeping, lack of communication among PSC staff, and the lack of a full-time Project Director. Letter of March 20, 1973, from Charles Johnson to B. R. Fuller, reprinted in App. 38-40.
2
See id., at 39.
3
The Court of Appeals also vacated the District Court's judgment that petitioner did not violate Title VII's equal pay provision, 42 U.S.C. § 2000e-2(h), but that decision is not challenged here.
4
See, e. g., Lieberman v. Gant, 630 F.2d 60 (CA2 1980); Jackson v. U. S. Steel Corp., 624 F.2d 436 (CA3 1980); Ambush v. Montgomery County Government, 620 F.2d 1048 (CA4 1980); Loeb v. Textron, Inc., 600 F.2d 1003 (CA1 1979). But see Vaughn v. Westinghouse Elec. Corp., 620 F.2d 655 (CA8 1980), cert. pending, No. 80-276.
5
We have recognized that the factual issues, and therefore the character of the evidence presented, differ when the plaintiff claims that a facially neutral employment policy has a discriminatory impact on protected classes. See McDonnell Douglas, 411 U.S., at 802, n. 14, 93 S.Ct., at 1824 n. 14; Teamsters v. United States, 431 U.S. 324, 335-336, and n. 15, 97 S.Ct. 1843, 1854-1855, n. 15, 52 L.Ed.2d 396 (1977).
6
In McDonnell Douglas, supra, we described an appropriate model for a prima facie case of racial discrimination. The plaintiff must show:
"(i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications." 411 U.S., at 802, 93 S.Ct., at 1824.
We added, however, that this standard is not inflexible, as "[t]he facts necessarily will vary in Title VII cases, and the specification above of the prima facie proof required from respondent is not necessarily applicable in every respect in differing factual situations." Id., at 802, n. 13, 93 S.Ct., at 1824 n. 13.
In the instant case, it is not seriously contested that respondent has proved a prima facie case. She showed that she was a qualified woman who sought an available position, but the position was left open for several months before she finally was rejected in favor of a male, Walz, who had been under her supervision.
7
The phrase "prima facie case" not only may denote the establishment of a legally mandatory, rebuttable presumption, but also may be used by courts to describe the plaintiff's burden of producing enough evidence to permit the trier of fact to infer the fact at issue. 9 J. Wigmore, Evidence § 2494 (3d ed. 1940). McDonnell Douglas should have made it apparent that in the Title VII context we use "prima facie case" in the former sense.
8
This evidentiary relationship between the presumption created by a prima facie case and the consequential burden of production placed on the defendant is a traditional feature of the common law. "The word 'presumption' properly used refers only to a device for allocating the production burden." F. James & G. Hazard, Civil Procedure § 7.9, p. 255 (2d ed. 1977) (footnote omitted). See Fed.Rule Evid. 301. See generally 9 J. Wigmore, Evidence § 2491 (3d ed. 1940). Cf. J. Maguire, Evidence, Common Sense and Common Law 185-186 (1947). Usually, assessing the burden of production helps the judge determine whether the litigants have created an issue of fact to be decided by the jury. In a Title VII case, the allocation of burdens and the creation of a presumption by the establishment of a prima facie case is intended progressively to sharpen the inquiry into the elusive factual question of intentional discrimination.
9
An articulation not admitted into evidence will not suffice. Thus, the defendant cannot meet its burden merely through an answer to the complaint or by argument of counsel.
10
See generally J. Thayer, Preliminary Treatise on Evidence 346 (1898). In saying that the presumption drops from the case, we do not imply that the trier of fact no longer may consider evidence previously introduced by the plaintiff to establish a prima facie case. A satisfactory explanation by the defendant destroys the legally mandatory inference of discrimination arising from the plaintiff's initial evidence. Nonetheless, this evidence and inferences properly drawn therefrom may be considered by the trier of fact on the issue of whether the defendant's explanation is pretextual. Indeed, there may be some cases where the plaintiff's initial evidence, combined with effective cross-examination of the defendant, will suffice to discredit the defendant's explanation.
11
The court reviewed the defendant's evidence and explained its deficiency:
"Defendant failed to introduce comparative factual data concerning Burdine and Walz. Fuller merely testified that he discharged and retained personnel in the spring shakeup at TDCA primarily on the recommendations of subordinates and that he considered Walz qualified for the position he was retained to do. Fuller failed to specify any objective criteria on which he based the decision to discharge Burdine and retain Walz. He stated only that the action was in the best interest of the program and that there had been some friction within the department that might be alleviated by Burdine's discharge. Nothing in the record indicates whether he examined Walz' ability to work well with others. This court in East found such unsubstantiated assertions of 'qualification' and 'prior work record' insufficient absent data that will allow a true comparison of the individuals hired and rejected." 608 F.2d, at 568.
12
Because the Court of Appeals applied the wrong legal standard to the evidence, we have no occasion to decide whether it erred in not reviewing the District Court's finding of no intentional discrimination under the "clearly erroneous" standard of Federal Rule of Civil Procedure 52(a). Addressing this issue in this case would be inappropriate because the District Court made no findings on the intermediate questions posed by McDonnell Douglas.
| 12
|
450 U.S. 221
101 S.Ct. 1074
67 L.Ed.2d 186
Richard SCHWEIKER, Secretary of Health and Human Services, Appellant,v.Charles Edward WILSON et al.
No. 79-1380.
Argued Dec. 2, 1980.
Decided March 4, 1981.
Syllabus
The Supplemental Security Income (SSI) program, which is part of the Social Security Act, provides a subsistence allowance to needy aged, blind, and disabled persons. Inmates of public institutions are generally excluded from this program, except that under § 1611(e)(1)(B) of the Act a reduced amount of SSI benefits are provided to otherwise eligible persons in a hospital, extended care facility, nursing home, or intermediate care facility receiving Medicaid funds for their care. Appellees, aged 21 through 64 and residing in public mental institutions that do not receive Medicaid funds for their care, brought a class action in Federal District Court challenging their exclusion from the reduced SSI benefits. The District Court held such exclusion unconstitutional as violative of the equal protection guarantees of the Due Process Clause of the Fifth Amendment on the ground that the "mental health" classification could not withstand judicial scrutiny because it did not have a "substantial relation" to the object of the legislation in light of its "primary purpose."
Held : Appellees' rights to equal protection were not violated by denying them SSI benefits. Pp. 230-239.
(a) In § 1611(e)(1)(B), Congress made a distinction not between the mentally ill and a group composed of nonmentally ill, but between residents in public institutions receiving Medicaid funds for their care and residents in such institutions not receiving such funds. To the extent that the statute has an indirect impact upon the mentally ill as a subset of publicly institutionalized persons, the record in this case presents no statistical support for a contention that the mentally ill as a class are burdened disproportionately to any other class affected by the classification. The indirect deprivation worked by this legislation upon appellees' class, whether or not the class is considered "suspect," does not, in the absence of any evidence that Congress deliberately intended to discriminate against the mentally ill, move this Court to regard it with a heightened scrutiny. Pp. 230-234.
(b) The classification employed in § 1611(e)(1)(B) is to be judged under the rational-basis standard, which does not allow this Court to substitute its personal notions of good public policy for those of Congress. Under this standard, and based on the legislative history, it was not irrational for Congress to elect, in view of budgetary constraints, to shoulder only part of the burden of supplying a "comfort money" allowance, leaving the States with the primary responsibility for making such an allowance available to those residents in state-run institutions, and to decide that it is the Medicaid recipients in public institutions who are the most needy and deserving of the SSI benefits. Pp. 234-239.
478 F.Supp. 1046, reversed.
Elliott Schulder, Washington, D. C., for appellant.
James D. Weill, Chicago, Ill., for appellees.
Justice BLACKMUN delivered the opinion of the Court.
1
The issue in this case is whether Congress constitutionally may decline to grant Supplemental Security Income benefits to a class of otherwise eligible individuals who are excluded because they are aged 21 through 64 and are institutionalized in public mental institutions that do not receive Medicaid funds for their care. The United States District Court for the Northern District of Illinois held unconstitutional, under the Due Process Clause of the Fifth Amendment, that portion of the Social Security Act, as amended, that excludes these otherwise eligible persons from the supplemental benefits. The Secretary of Health and Human Services has taken a direct appeal to this Court under 28 U.S.C. § 1252.
2
* In October 1972, Congress amended the Social Security Act (Act) to create the federal Supplemental Security Income (SSI) program, effective January 1, 1974. 86 Stat. 1465, 42 U.S.C. § 1381 et seq. This program was intended "[t]o assist those who cannot work because of age, blindness, or disability," S.Rep.No.92-1230, p. 4 (1972), by "set[ting] a Federal guaranteed minimum income level for aged, blind, and disabled persons," id., at 12.1
3
The SSI program provides a subsistence allowance, under federal standards, to the Nation's needy aged, blind, and disabled.2 Included within the category of "disabled" under the program are all those "unable 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 if not less than twelve months." § 1614(a)(3)(A) of the Act, 42 U.S.C. § 1382c(a)(3)(A).
4
Although the SSI program is broad in its reach, its coverage is not complete. From its very inception, the program has excluded from eligibility anyone who is an "inmate of a public institution." § 1611(e)(1)(A) of the Act, as amended, 42 U.S.C. § 1382(e)(1)(A).3 Also from the program's inception, Congress has made a partial exception to this exclusion by providing a small amount of money (not exceeding $300 per year) to any otherwise eligible person in "a hospital, extended care facility, nursing home, or intermediate care facility receiving payments (with respect to such individual or spouse) under a State plan approved under subchapter XIX [Medicaid] . . ." § 1611(e)(1)(B), as amended, 42 U.S.C. § 1382(e)(1)(B).4 Congress thus, while excluding generally any person residing in a public institution, explicitly has tied eligibility for a reduced amount of SSI benefits to residence in an institution receiving Medicaid benefits for the care of the eligible individual.
5
Appellees brought this suit to challenge this resulting detail of Congress' having conditioned the limited assistance grant on eligibility for Medicaid: a person between the ages of 21 through 64 who resides in a public mental institution is not eligible to receive this small stipend, even though that person meets the other eligibility requirements for SSI benefits, because treatment in a public mental institution for a person in this age bracket is not funded under Medicaid.5
6
Appellees attack this statutory classification as violative of the equal protection component of the Fifth Amendment's Due Process Clause.6 Their challenge, successful in the District Court, is twofold. First they argue that the exclusion of their class of mentally ill (and therefore disabled) persons bears no rational relationship to any legitimate objective of the SSI program. They assert, in fact, that their class was excluded inadvertently because of its political powerlessness. Brief for Appellees 6,32. Second, they insist that because the statute classifies on the basis of mental illness, a factor that greatly resembles other characteristics that this Court has found inherently "suspect" as a means of legislative classification, special justification should be required for the congressional decision to exclude appellees.
II
7
This case has had a somewhat complex procedural history. It initially was instituted in December 1973 as a class action for injunctive and declaratory relief to challenge the federal and Illinois assistance schemes that prevailed prior to the effective date of the SSI program. See Wilson v. Edelman, 542 F.2d 1260, 1263-1266 (CA7 1976). The then-existing state assistance program, for which federal funds were received, excluded from eligibility any person who was residing in a public mental or tuberculosis institution or who was confined in a penal institution. Id., at 1263, n. 2. The plaintiffs later amended their complaint to include a challenge to the SSI exclusion, which by then had come into effect. Id., at 1266. A three-judge court was convened under 28 U.S.C. §§ 2281 and 2282 (1970 ed.) (since repealed by Pub.L. 94-381, §§ 1 and 2, 90 Stat. 1119). The case was consolidated with another that challenged the exclusion from SSI benefits of any pretrial detainee. Relying on Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975), the court granted the Secretary's motion to dismiss both cases for lack of subject-matter jurisdiction on the ground that the plaintiffs had failed to exhaust the administrative remedies provided for by § 1631(c)(3) of the Act, as amended, 42 U.S.C. § 1383(c)(3). See 542 F.2d, at 1267-1268.7
8
On appeal, appellees abandoned their claims under the prior federal statutes. Id., at 1271. The United States Court of Appeals for the Seventh Circuit reversed the dismissal, holding that the Secretary (then Patricia Harris) had waived any requirement of exhaustion by her submission of the case to the District Court for summary disposition.8 Id., at 1272. Because the plaintiffs had dropped their request for injunctive relief, the case was remanded to the single-judge District Court. Id., at 1269. That court, on remand, certified the class9 and granted appellees' motion for summary judgment, holding that § 1382(e)'s exclusion of the class members violated the equal protection guarantee of the Due Process Clause of the Fifth Amendment. Sterling v. Harris, 478 F.Supp. 1046 (ND Ill.1979).10 The District Court reasoned that the statute "creates three classifications: (1) age, and (2) residence in a public, (3) mental health hospital." Id., at 1050. It ruled that Congress' use of the first two factors need be justified only by demonstration of their "rational relationship" to "a legitimate state interest." Ibid. Under that standard, these classifications withstood scrutiny. Congress' use, however, of a "mental health" classification was deemed to require a closer examination because "mental health classifications possess the significant indicia of the suspect classifications recognized in other cases." Id., at 1052. Although recognizing that the mentally ill as a group do not demonstrate all the characteristics this Court has considered as denoting inherently suspicious classifications, such as race and national origin,11 the District Court believed that the mentally ill were "a politically impotent, insular minority" that "have been subject to a 'history of unequal protection.' " Ibid. The court therefore concluded that Congress could legislatively disfavor the mentally ill, as § 1611(e) did, only if the statutory classification passes an "intermediate level of judicial scrutiny," id., at 1053, that is, only if the "classification bears a substantial relation" to the object of the legislation evaluated "in light of the primary purpose" of the scheme of which it is a part. Ibid. The court adjudged that the "primary purpose" of the small monthly stipend was to enable the needy to purchase comfort items not provided by the institution. Rejecting the Secretary's proposed justifications for the exclusion,12 the District Court held that the classification could not withstand scrutiny. The legislative history, it said, revealed no intent to exclude appellees' class; the court could conceive of no "possible unexpressed purpose for the exclusion"; and the court reasoned that "aged, blind and disabled inmates of all public institutions would have similar needs." Ibid. Upon the Secretary's direct appeal from this judgment, we noted probable jurisdiction. Harris v. Wilson, 446 U.S. 964, 100 S.Ct. 2938, 64 L.Ed.2d 822 (1980).
III
A.
9
The equal protection obligation imposed by the Due Process Clause of the Fifth Amendment is not an obligation to provide the best governance possible. This is a necessary result of different institutional competences, and its reasons are obvious. Unless a statute employs a classification that is inherently invidious or that impinges on fundamental rights, areas in which the judiciary then has a duty to intervene in the democratic process, this Court properly exercises only a limited review power over Congress, the appropriate representative body through which the public makes democratic choices among alternative solutions to social and economic problems. See San Antonio School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). At the minimum level, this Court consistently has required that legislation classify the persons it affects in a manner rationally related to legitimate governmental objectives. See, e. g., Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); Mathews v. De Castro, 429 U.S. 181, 97 S.Ct. 431, 50 L.Ed.2d 389 (1976). Appellees assert that the particular grant of federal benefits under review here, however, should "be subjected to a heightened standard of review," Brief for Appellees 39, because the mentally ill "historically have been subjected to purposeful unequal treatment; they have been relegated to a position of political powerlessness; and prejudice against them curtails their participation in the pluralist political system and strips them of political protection against discriminatory legislation." (Footnote omitted.) Id., at 41, 93 S.Ct., at 1301.
10
We have no occasion to reach this issue because we conclude that this statute does not classify directly on the basis of mental health.13 The SSI program distinguishes among three groups of persons, all of whom meet the basic eligibility requirements: persons not in a "public institution" may receive full benefits; persons in a "public institution" of a certain nature ("hospital, extended care facility, nursing home, or intermediate care facility receiving payments (with respect to such individual or spouse ) . . . under [Medicaid] )" (emphasis added), § 1611(e)(1)(B), may receive reduced benefits; and persons in any other "public institution" may not receive any benefits. The statute does not isolate the mentally ill or subject them, as a discrete group, to special or subordinate treatment. At the most, this legislation incidentally denies a small monthly comfort benefit to a certain number of persons suffering from mental illness; but in so doing it imposes equivalent deprivation on other groups who are not mentally ill, while at the same time benefiting substantial numbers of the mentally ill.
11
The group thus singled out for special treatment by § 1611(e) does not entirely exclude the mentally ill. In fact, it includes, in a sizable proportion to the total population receiving SSI benefits, large numbers of mentally ill people.14 Further, the group excluded is not congruent with appellees' class. Among those excluded are the inmates of any other nonmedical "public institution," such as a prison, other penal institution, and any other publicly funded residential program the State may operate;15 persons residing in a tuberculosis institution; and residents of a medical institution not certified as a Medicaid provider.16 Although not by the same subsection, Congress also chose to exclude from SSI eligibility persons afflicted with alcoholism or drug addiction and not undergoing treatment, § 1611(e)(3)(A), and persons who spend more than a specified time outside the United States, § 1611(f). See Califano v. Aznavorian, 439 U.S. 170, 99 S.Ct. 471, 58 L.Ed.2d 435 (1978) (upholding constitutionality of § 1611(f)); Califano v. Torres, 435 U.S. 1, 98 S.Ct. 906, 55 L.Ed.2d 65 (1978) (upholding constitutionality of Congress' exclusion from SSI eligibility of residents of Puerto Rico). Thus, in § 1611(e), Congress made a distinction not between the mentally ill and a group composed of nonmentally ill, but between residents in public institutions receiving Medicaid funds for their care and residents in such institutions not receiving Medicaid funds.
12
To the extent that the statute has an indirect impact upon the mentally ill as a subset of publicly institutionalized persons, this record certainly presents no statistical support for a contention that the mentally ill as a class are burdened disproportionately to any other class affected by the classification. The exclusion draws a line only between groups composed (in part) of mentally ill individuals: those in public mental hospitals and those not in public mental hospitals. These groups are shifting in population, and members of one group can, and often do, pass to the other group.17
13
We also note that appellees have failed to produce any evidence that the intent of Congress was to classify on the basis of mental health. Appellees admit that no such evidence exists; indeed, they rely on the absence of explicit intent as proof of Congress' "inattention" to their needs and therefore, its prejudice against them. Brief for Appellees 39. As in Jefferson v. Hackney, 406 U.S. 535, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972), the indirect deprivation worked by this legislation upon appellees' class, whether or not the class is considered "suspect," does not without more move us to regard it with a heightened scrutiny. Cf. Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979).
B
14
Thus, the pertinent inquiry is whether the classification employed in § 1611(e)(1)(B) advances legitimate legislative goals in a rational fashion. The Court has said that, although this rational-basis standard is "not a toothless one," Mathews v. Lucas, 427 U.S. 495, 510, 96 S.Ct. 2755, 2764, 49 L.Ed.2d 651 (1976), it does not allow us to substitute our personal notions of good public policy for those of Congress:
15
"In the area of economics and social welfare, a State does not violate the Equal Protection Clause [and correspondingly the Federal Government does not violate the equal protection component of the Fifth Amendment] 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 inequity.' Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78 [31 S.Ct. 337, 340, 55 L.Ed. 369]." Dandridge v. Williams, 397 U.S., at 485, 90 S.Ct., at 1161.
16
The Court also has said: "This inquiry employs a relatively relaxed standard reflecting the Court's awareness that the drawing of lines that create distinctions is peculiarly a legislative task and an unavoidable one. Perfection in making the necessary classifications is neither possible nor necessary." Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 314, 96 S.Ct. 2562, 2567, 49 L.Ed.2d 520 (1976). See also United States Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 101 S.Ct. 453, 66 L.Ed.2d 368 (1980). As long as the classificatory scheme chosen by Congress rationally advances a reasonable and identifiable governmental objective, we must disregard the existence of other methods of allocation that we, as individuals, perhaps would have preferred.
17
We believe that the decision to incorporate the Medicaid eligibility standards into the SSI scheme must be considered Congress' deliberate, considered choice. The legislative record, although sparse, appears to be unequivocal. Both House and Senate Reports on the initial SSI bill noted the exclusion in no uncertain terms. The House Report stated:
18
"People who are residents of certain public institutions, or hospitals or nursing homes which are getting Medicaid funds, would get benefits of up to $25 a month (reduced by nonexcluded income). For these people most subsistence needs are met by the institution and full benefits are not needed. Some payment to these people, though, would be needed to enable them to purchase small comfort items not supplied by the institution. No assistance benefits will be paid to an individual in a penal institution." H.R.Rep. No. 92-231, p. 150 (1971), U.S.Code Cong. & Admin.News 1972, p. 5136.
19
The Senate Report followed the House's language almost identically. See S.Rep. No. 92-1230, p. 386 (1972). We find these passages, at the very least, to be a clear expression of Congress' understanding that the stipend grant was to be limited to a group smaller than the total population of otherwise eligible, institutionalized people. That the bill's section-by-section analysis contained in the House Report laid out the terms of the exclusion precisely supports the conclusion that Congress was aware of who was included in that limited group. See H.R.Rep. No. 92-231, at 334.
20
The limited nature of Medicaid eligibility did not pass unnoticed by the enacting Congress. In the same bill that established the SSI program, Congress considered, and passed, an amendment to Medicaid, providing coverage of inpatient services to a large number of the juvenile needy in public mental institutions.18 See § 1905(h) of the Act, 42 U.S.C. § 1396d(h); S.Rep. No. 92-1230, at 280-281; H.R.Conf.Rep. No. 92-1605, p. 65 (1972). Also, a Senate proposal for demonstration projects on the feasibility of extending Medicaid to cover all inpatient services provided in public mental institutions was simultaneously defeated. See S.Rep. No. 92-1230, at 281; H.R.Conf.Rep. No. 92-1605, at 65. Congress was in the process of considering the wisdom of these limitations at the time it chose to incorporate them into the SSI provisions. The decision to do so did not escape controversy. The Committee hearings contained testimony advocating extension of both Medicaid and SSI benefits to all needy residents in public mental institutions. See Social Security Amendments of 1971, Hearings on H.R. 1 before the Senate Committee on Finance, 92d Cong., 1st and 2d Sess., 2180, 2408-2410, 2479-2485, 3257, 3319 (1972). This legislative history shows that Congress was aware, when it added § 1611(e) to the Act, of the limitations in the Medicaid program that would restrict eligibility for the reduced SSI benefits; we decline to regard such deliberate action as the result of inadvertence or ignorance. See Maine v. Thiboutot, 448 U.S. 1, 8, 100 S.Ct. 2502, 2505, 65 L.Ed.2d 555 (1980).
21
Having found the adoption of the Medicaid standards intentional, we deem it logical to infer from Congress' deliberate action an intent to further the same subsidiary purpose that lies behind the Medicaid exclusion, which, as no party denies, was adopted because Congress believed the States to have a "traditional" responsibility to care for those institutionalized in public mental institutions.19 The Secretary, emphasizing the then-existing congressional desire to economize in the disbursement of federal funds, argues that the decision to limit distribution of the monthly stipend to inmates of public institutions who are receiving Medicaid funds "is rationally related to the legitimate legislative desire to avoid spending federal resources on behalf of individuals whose care and treatment are being fully provided for by state and local government units" and "may be said to implement a congressional policy choice to provide supplemental financial assistance for only those residents of public institutions who already receive significant federal support in the form of Medicaid coverage." Brief for Appellant 27-28. We cannot say that the belief that the States should continue to have the primary responsibility for making this small "comfort money" allowance available to those residing in state-run institutions is an irrational basis for withholding from them federal general welfare funds.20
22
Although we understand and are inclined to be sympathetic with appelle$s' and their supporting amici § assertions as to the beneficial effects of a patient's receiving the reduced stipend, we find this a legislative, and not a legal, argument. Congress rationally may elect to shoulder only part of the burden of supplying this allowance, and may rationally limit the grant to Medicaid recipients, for whose care the Federal Government already has assumed the major portion of the expense.21 The limited gratuity represents a partial solution to a far more general problem,22 and Congress legitimately may assume that the States would, or should, provide an equivalent, either in funds or in basic care. See Baur v. Mathews, 578 F.2d 228, 233 (CA9 1978). This Court has granted a "strong presumption of constitutionality" to legislation conferring monetary benefits, Mathews v. De Castro, 429 U.S., at 185, 97 S.Ct., at 434, because it believes that Congress should have discretion in deciding how to expend necessarily limited resources. Awarding this type of benefits inevitably involves the kind of line-drawing that will leave some comparably needy person outside the favored circle.23 We cannot say that it was irrational of Congress, in view of budgetary constraints,24 to decide that it is the Medicaid recipients in public institutions that are the most needy and the most deserving of the small monthly supplement. See, e. g., Califano v. Boles, 443 U.S. 282, 296, 99 S.Ct. 2767, 2776, 61 L.Ed.2d 541 (1979); Califano v. Jobst, 434 U.S. 47, 53, 98 S.Ct. 95, 99, 54 L.Ed.2d 228 (1977); Weinberger v. Salfi, 422 U.S. 749, 768-770, 95 S.Ct. 2457, 2468-69, 45 L.Ed.2d 522 (1975); Richardson v. Belcher, 404 U.S. 78, 83-84, 92 S.Ct. 254, 258, 30 L.Ed.2d 231 (1971).
23
We conclude that Congress did not violate appellees' rights to equal protection by denying them the supplementary benefit. The judgment of the District Court is reversed.
24
It is so ordered.
25
Justice POWELL, with whom Justice BRENNAN, Justice MARSHALL, and Justice STEVENS join, dissenting.
26
The Court holds that Congress rationally has denied a small monthly "comfort allowance" to otherwise eligible people solely because previously it rationally denied them Medicaid benefits. In my view, Congress thoughtlessly has applied a statutory classification developed to further legitimate goals of one welfare program to another welfare program serving entirely different needs. The result is an exclusion of wholly dependent people from minimal benefits, serving no Government interest. This irrational classification violates the equal protection component of the Due Process Clause of the Fifth Amendment.
27
* The Supplemental Security Income (SSI) program is a comprehensive federal program of minimal cash welfare benefits for the indigent blind, aged, and disabled. 86 Stat. 1465, 42 U.S.C. § 1381 et seq. See generally Califano v. Aznavorian, 439 U.S. 170, 171, 99 S.Ct. 471, 472, 58 L.Ed.2d 435 (1978). Section 1611(e)(1)(A) of the Act, 42 U.S.C. § 1382(e)(1)(A), operates to reduce substantially, to $25 per month, the SSI benefits available to otherwise eligible persons who reside in public institutions. The reason for this reduction of benefit is understandable:
28
"For these people most subsistence needs are met by the institution and full benefits are not needed. Some payment to these people, though, would be needed to enable them to purchase small comfort items not supplied by the institution." H.R.Rep. No. 92-231, p. 150 (1971), U.S.Code Cong. & Admin.News 1972, p. 5136.
29
See also S.Rep. No. 92-1230, p. 386 (1972). This comfort allowance is provided to institution residents only if the qualified person resides in a public hospital or institution that receives Medicaid funds on his behalf. 42 U.S.C. § 1382(e)(1)(B). Thus, no comfort allowance will be paid to an individual unless the form of institutionalized treatment he receives is compensable under the separate Medicaid program.
30
Appellees are indigent people disabled by mental illness, and thus otherwise are eligible for SSI payments under 42 U.S.C. §§ 1382c(a)(3)(A), (C). As residents of public mental institutions between the ages of 21 and 65, however, they are ineligible to receive Medicaid benefits for their treatment. § 1396a(a)(17)(B).1 For this reason, and none other, appellees may not receive the reduced monthly SSI payments available to inmates of other medical institutions, including patients in public medical hospitals and private mental institutions.2
31
The refusal to pay for treatment in public mental institutions has a lengthy history in the development of the federal medical assistance programs. See Legion v. Richardson, 354 F.Supp. 456 (SDNY), summarily aff'd sub nom. Legion v. Weinberger, 414 U.S. 1058, 94 S.Ct. 564, 38 L.Ed.2d 465 (1973). Initially, Congress broadly refused federal aid to individuals diagnosed as mentally ill, ch. 809, §§ 303(a), 343(a), 351, 64 Stat. 549, 554, 557-558. Subsequent enactments, however, have extended Medicaid coverage to treatment of mental illness in public or private medical hospitals or nursing homes, 42 U.S.C. §§ 1396d(a)(1), (4) (1976 ed. and Supp.III), to treatment of mental illness of those under 21 and 65 or over in public mental institutions, §§ 1396d(a)(14), (16). Moreover, Congress has defined "public institution" not to include a publicly operated community residence center serving no more than 16 residents. § 1382(e)(1)(C). Thus, federal medical benefits have been extended to the mentally ill for treatment in various contexts. The residual exclusion of large state institutions for the mentally ill from federal financial assistance rests on two related principles: States traditionally have assumed the burdens of administering this form of care, and the Federal Government has long distrusted the economic and therapeutic efficiency of large mental institutions. See S.Rep. No. 404, 89th Cong., 1st Sess., 20 (1965), reprinted in 1965 U.S.Code Cong. & Admin.News 1943, p. 2084. See also 42 U.S.C. § 1396d(h)(1)(B) (persons under 21 receive Medicaid benefits for treatment in mental institutions only when standards of utility are met).
32
The legislative history of § 1611(e) sheds no light on why Congress made the exclusion from reduced SSI benefits coextensive with the exclusion from Medicaid payments.3 The Secretary argues that Congress might rationally have concluded that the States have the primary responsibility for making payments of comfort allowances to appellees, because they already bear the responsibility for paying for their treatment. Brief for Appellant 27. In accepting this justification, the Court adds that whether the States do, ever have, or ever will provide this benefit to residents of large mental institutions is irrelevant to the rationality of Congress' supposed judgment. Ante, at 237, n. 20.
II
A.
33
Social and economic legislation that does not employ suspect classifications or impinge on fundamental rights must be upheld under the equal protection component of the Fifth Amendment when the legislative means are rationally related to a legitimate Government purpose. U. S. Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 101 S.Ct. 453, 66 L.Ed.2d 368 (1980). See San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 17, 93 S.Ct. 1278, 1288, 36 L.Ed.2d 16 (1973); Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970). This simply stated test holds two firmly established principles in tension. The Court must not substitute its view of wise or fair legislative policy for that of the duly elected representatives of the people, Vance v. Bradley, 440 U.S. 93, 109, 99 S.Ct. 939, 949, 59 L.Ed.2d 171 (1979); Dandridge, supra, at 485-486, 90 S.Ct. 1161-62, but the equal protection requirement does place a substantive limit on legislative power. At a minimum, the legislature cannot arbitrarily discriminate among citizens. E. g., Johnson v. Robison, 415 U.S. 361, 374-375, 94 S.Ct. 1160, 1169, 39 L.Ed.2d 389 (1974); James v. Strange, 407 U.S. 128, 140, 92 S.Ct. 2027, 2034, 32 L.Ed.2d 600 (1972); Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 175, 92 S.Ct. 1400, 1406, 31 L.Ed.2d 768 (1972). Enforcing this prohibition while avoiding unwarranted incursions on the legislative power presents a difficult task. No bright line divides the merely foolish from the arbitrary law.4 Given this difficulty, legislation properly enjoys a presumption of rationality, which is particularly strong for welfare legislation where the apportionment of scarce benefits in accordance with complex criteria requires painful but unavoidable line-drawing. Mathews v. DeCastro, 429 U.S. 181, 185, 97 S.Ct. 431, 434, 50 L.Ed.2d 389 (1976).
34
The deference to which legislative accommodation of conflicting interests is entitled rests in part upon the principle that the political process of our majoritarian democracy responds to the wishes of the people. Accordingly, an important touchstone for equal protection review of statutes is how readily a policy can be discerned which the legislature intended to serve. See, e. g., U. S. Dept. of Agriculture v. Moreno, 413 U.S. 528, 536-538, 93 S.Ct. 2821, 2826-27, 37 L.Ed.2d 782 (1973); McGinnis v. Royster, 410 U.S. 263, 270, 93 S.Ct. 1055, 1059, 35 L.Ed.2d 282 (1973). When a legitimate purpose for a statute appears in the legislative history or is implicit in the statutory scheme itself, a court has some assurance that the legislature has made a conscious policy choice. Our democratic system requires that legislation intended to serve a discernible purpose receive the most respectful deference. See Harris v. McRae, 448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980); Maher v. Roe, 432 U.S. 464, 479, 97 S.Ct. 2376, 2385, 53 L.Ed.2d 484 (1977); Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975). Yet, the question of whether a statutory classification discriminates arbitrarily cannot be divorced from whether it was enacted to serve an identifiable purpose. When a legislative purpose can be suggested only by the ingenuity of a government lawyer litigating the constitutionality of a statute, a reviewing court may be presented not so much with a legislative policy choice as its absence.5
35
In my view, the Court should receive with some skepticism post hoc hypotheses about legislative purpose, unsupported by the legislative history.6 When no indication of legislative purpose appears other than the current position of the Secretary, the Court should require that the classification bear a "fair and substantial relation" to the asserted purpose. See F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989 (1920). This marginally more demanding scrutiny indirectly would test the plausibility of the tendered purpose, and preserve equal protection review as something more than "a mere tautological recognition of the fact that Congress did what it intended to do." Fritz, supra, at 180, 101 S.Ct., at 462 (STEVENS, J., concurring in judgment).
B
36
Neither the structure of § 1611 nor its legislative history identifies or even suggests any policy plausibly intended to be served by denying appellees the small SSI allowance. As noted above, the only purpose identified in the House and Senate Reports is the irrelevant goal of depriving inmates of penal institutions of all benefits. See n. 3, supra. The structure of the statute offers no guidance as to purpose because § 1611(e) is drawn in reference to the policies of Medicaid rather than to the policies of SSI. By mechanically applying the criteria developed for Medicaid, Congress appears to have avoided considering what criteria would be appropriate for deciding in which public institutions a person can reside and still be eligible for some SSI payment. The importation of eligibility criteria from one statute to another creates significant risks that irrational distinctions will be made between equally needy people. See U. S. Dept. of Agriculture v. Murry, 413 U.S. 508, 514, 93 S.Ct. 2832, 2835, 37 L.Ed.2d 767 (1973); Medora v. Colautti, 602 F.2d 1149 (CA3 1979).
37
The Secretary argues, and the Court agrees, that the exclusion "is rationally related to the legitimate legislative desire to avoid spending federal resources on behalf of individuals whose care and treatment are being fully provided for by state and local government units." Brief for Appellant 27. The Secretary does not argue that appellees are not in present need of the comfort allowance; indeed, he concedes that "the statutory classification does not exclude [appellees] because they were thought to be less needy." Id., at 32.7 Nor does the Secretary suggest that because a State provides health care and the necessities of life to inmates of mental hospitals, the State also will provide the inmate with a comfort allowance. Indeed, the probability that a State will pay a patient a comfort allowance does not increase when the Federal Government refuses to relieve it of part of the cost of the patient's medical care. The Court apparently recognizes this, as it states that whether or not a State actually provides a comfort allowance is irrelevant. Ante, at 237, n. 20. Appellees simply are denied a benefit provided to other institutionalized, disabled patients.
38
But, it is argued, Congress rationally could make the judgment that the States should bear the responsibility for any comfort allowance, because they already have the responsibility for providing treatment and minimal care. There is no logical link, however, between these two responsibilities. See U. S. Dept. of Agriculture v. Murry, supra. Residence in a public mental hospital is rationally related to whether the Congress should pay for the patient's treatment. Legion v. Richardson, 354 F.Supp. 456 (SDNY), summarily aff'd sub nom. Legion v. Weinberger, 414 U.S. 1058, 94 S.Ct. 564, 38 L.Ed.2d 465 (1973). The judgment whether the Federal Government should subsidize care for the mentally ill in large public institutions involves difficult questions of medical and economic policy. Supra, at 241-242. But residence in a public mental institution, as opposed to residence in a state medical hospital or a private mental hospital, bears no relation to any policy of the SSI program. The monthly $25 allowance pays for small personal expenses, beyond the minimal care and treatment provided by Medicaid or "other programs." H.R.Rep. No. 96-451, pt. 1, p. 153 (1979). If SSI pays a cash benefit relating to personal needs other than maintenance and medical care, it is irrelevant whether the State or the Federal Government is paying for the maintenance and medical care; the patients' need remains the same, the likelihood that the policies of SSI will be fulfilled remains the same.
39
I conclude that Congress had no rational reason for refusing to pay a comfort allowance to appellees, while paying it to numerous otherwise identically situated disabled indigents. This unexplained difference in treatment must have been a legislative oversight. I therefore dissent.
1
The SSI program, Title XVI of the Social Security Act, largely replaced the prior system of federal grants to state-run assistance programs for the aged, blind, and disabled contained in Titles I, X, XIV, and XVI of the Act, that is, Old Age Assistance, 49 Stat. 620, as amended, 42 U.S.C. § 301 et seq.; Aid to the Blind, 49 Stat. 645, as amended, 42 U.S.C. § 1202 et seq.; Aid to the Permanently and Totally Disabled, 64 Stat. 555, as amended, 42 U.S.C. § 1351 et seq.; and Aid to the Aged, Blind, or Disabled, 76 Stat. 197, 42 U.S.C. § 1381 et seq. (1970 ed.). See Califano v. Aznavorian, 439 U.S. 170, 171, 99 S.Ct. 471, 472, 58 L.Ed.2d 435 (1978); Califano v. Torres, 435 U.S. 1, 2, 98 S.Ct. 906, 907, 55 L.Ed.2d 65 (1978).
2
To be eligible for SSI benefits, a person must be "aged," that is 65 or older, or "blind," or "disabled," as those terms are defined in § 1614 of the Act, as amended, 42 U.S.C. § 1382c, and his income and resources must be below the levels specified in § 1611(a), as amended, 42 U.S.C. § 1382(a).
3
Section 1611(e)(1)(A), as amended, provides:
"(e) Limitation on eligibility of certain individuals
"(1)(A) Except as provided in subparagraph (B) and (C), no person shall be an eligible individual or eligible spouse for purposes of this subchapter with respect to any month if throughout such month he is an inmate of a public institution."
4
Section 1611(e)(1)(B), as amended, modifying § 1611(e)(1)(A), as amended, states:
"(B) In any case where an eligible individual or his eligible spouse (if any) is, throughout any month, in a hospital, extended care facility, nursing home, or intermediate care facility receiving payments (with respect to such individual or spouse) under a State plan approved under title XIX, the benefit under this title for such individual for such month shall be payable—
"(i) at a rate not in excess of $300 per year (reduced by the amount of any income not excluded pursuant to section 1612(b)) in the case of an individual who does not have an eligible spouse;
"(ii) in the case of an individual who has an eligible spouse, if only one of them is in such a hospital, home or facility throughout such month, at a rate not in excess of the sum of—
"(I) the rate of $300 per year (reduced by the amount of any income, not excluded pursuant to section 1612(b), of the one who is in such hospital, home, or facility), and
"(II) the applicable rate specified in subsection (b)(1) (reduced by the amount of any income, not excluded pursuant to section 1612(b), of the other); and
"(iii) at a rate not in excess of $600 per year (reduced by the amount of any income not excluded pursuant to section 1612(b)) in the case of an individual who has an eligible spouse, if both of them are in such a hospital, home, or facility throughout such month."
Subsection (C) of § 1611(e)(1), not implicated in this case, further modifies § 1611(e)(1)(A), as amended, by providing:
"(C) As used in subparagraph (A), the term 'public institution' does not include a publicly operated community residence which serves no more than 16 residents."
Added in 1976 by Pub.L. 94-566, § 505(a), 90 Stat. 2686, this subsection met objections that § 1611(e) impeded reform efforts to de-institutionalize certain groups of handicapped individuals, such as the mentally retarded. Congress determined to encourage the establishment of state-run group homes for such people by making residents in these institutions eligible for SSI benefits. See S.Rep. No. 94-1265, p. 29 (1976); H.R.Conf.Rep. No. 94-1745, pp. 27-28 (1976), U.S.Code Cong. & Admin.News 1976, pp. 5997, 6032.
5
Federal funds are available under the Medicaid program to pay for the following "residential" services: "inpatient hospital services (other than services in an institution for tuberculosis or mental diseases)," § 1905(a)(1), 42 U.S.C. § 1396d(a)(1); "skilled nursing facility services (other than services in an institution for tuberculosis or mental diseases) for individuals 21 years of age or older," § 1905(a)(4)(A); "inpatient hospital services, skilled nursing facility services, and intermediate care facility services for individuals 65 years of age or over in an institution for tuberculosis or mental diseases," § 1905(a)(14); "intermediate care facility services (other than such services in an institution for tuberculosis or mental diseases) for individuals . . . in need of such care," § 1905(a)(15); certain "inpatient psychiatric hospital services for individuals under age 21," §§ 1905(a)(16) and (h). Subsection (17)(B) of § 1905(a), which provides for funding of any other medical or remedial care recognized under state law, specifically excludes "payments with respect to care or services for any individual who has not attained 65 years of age and who is a patient in an institution for tuberculosis or mental diseases."
In 1950, when it first enacted federal grants for medical assistance, Congress excluded "any individual . . . who is a patient in an institution for . . . mental diseases" from eligibility. 64 Stat. 558. This exclusion was incorporated into the Medicaid statute in 1965, 79 Stat. 352, but exceptions were made for the needy aged in mental institutions, and for the care of mentally ill persons in general medical facilities. Ibid. In 1972, in the bill enacting the SSI program, Congress further broadened Medicaid benefits for the mentally ill to include most children in mental institutions. 86 Stat. 1461. A Senate proposal for demonstration projects to investigate the possibility of extending Medicaid benefits to the mentally ill between the ages of 21 through 64 in mental hospitals was defeated at the time. See S.Rep. No. 92-1230, p. 281 (1972); H.R.Conf.Rep. No. 92-1605, p. 65 (1972), U.S.Code Cong. & Admin.News 1972, pp. 4989, 5370.
6
This Court repeatedly has held that the Fifth Amendment imposes on the Federal Government the same standard required of state legislation by the Equal Protection Clause of the Fourteenth Amendment. See, e. g. Weinberger v. Salfi, 422 U.S. 749, 768-770, 95 S.Ct. 2457, 2468-69, 45 L.Ed.2d 522 (1975); Richardson v. Belcher, 404 U.S. 78, 81, 92 S.Ct. 254, 257, 30 L.Ed.2d 231 (1971).
7
The three-judge court also found that the state statute classified on the basis of age, not mental health, and that it was rational and constitutional. The Court of Appeals declined to review that constitutional holding on the ground that review from the three-judge court could be had only in this Court. Wilson v. Edelman, 542 F.2d, at 1276-1282.
8
The Court of Appeals also held that only two of the named plaintiffs, Maudie Simmons and John Kiernan Turney, had satisfied the minimum, nonwaivable requirement of 42 U.S.C. § 405(g) that a party may seek review only of a "final decision of the Secretary" denying, terminating, or suspending benefits under the SSI program. The other named plaintiffs, including Charles Wilson, were eligible for, or had sought and been denied, benefits only under the prior cooperative state-federal programs, and therefore they were dismissed as parties. We have retained Wilson as a named party in the caption of this case, however, as did the District Court on remand, for the sake of uniformity.
9
The class was defined as "all persons residing in HEW Region V who have been terminated from benefits under Title XVI, or who have applied for Supplemental Security Income benefits under Title XVI and have been denied such benefits, on or after January 1, 1974, solely because they are between the ages of 21 and 65 and hospitalized in a public mental institution." App. to Juris. Statement 21a.
10
The District Court denied, however, the claim of the pretrial detainees to the monthly stipend, applying a "rational relation" standard and finding the exclusion rational because "[t]he detainee status is necessarily temporary in nature, and the [Secretary] could legitimately wish to withhold these extra-subsistence payments while the detainee is housed in a public institution and until his future status is determined." 478 F.Supp., at 1055.
11
The District Court noted that a person's mental health problem, especially one that has led to institutionalization, is likely to " 'bear [a] relation to ability to perform or contribute to society.' " Id., at 1051-1052, quoting Frontiero v. Richardson, 411 U.S. 677, 686, 93 S.Ct. 1764, 1770, 36 L.Ed.2d 583 (1973). The court also acknowledged that "[i]t is debatable whether and to what extent the mental illness is an 'immutable characteristic determined solely by the accident of birth.' " 478 F.Supp., at 1052, again quoting Frontiero, 411 U.S., at 686, 93 S.Ct., at 1770.
12
The Secretary argued that the statutory exclusion has three purposes: "1) the conservation of federal resources; 2) the concern that federal funds be received on behalf of residents of qualified institutions; and 3) the fact that plaintiffs are not 'similarly situated' with Medicaid patients in terms of federal interest and control." 478 F.Supp., at 1053.
13
We therefore intimate no view as to what standard of review applies to legislation expressly classifying the mentally ill as a discrete group.
14
Social Security Administration statistics show that 30.7% of all blind and disabled adult persons awarded SSI benefits in 1975 (109,509 persons) were deemed disabled by mental disorders, and the Administration has concluded that "[m]ental illness was the most common cause of disability in 1975." Kochhar, Blind and Disabled Persons Awarded Federally Administered SSI Payments, 1975, Social Security Bulletin 13, 15 (June 1979). Half of this number suffered from mental illness rather than mental retardation, and these statistics did not include any persons with prior entitlement to benefits. Ibid.
Further, as a recent study also indicates, a substantial number of mentally ill people in institutions actually receive SSI benefits. Social Security Administration, Representative Payments under the SSI Program, August, 1977, Research and Statistics Note No. 9 (Sept. 16, 1980). This study established that 15% of the total population receiving SSI benefits (for all reasons, including age, blindness, and disability) had "representative payees" (a person "appointed to manage the benefits of an adult beneficiary" because of "the adult beneficiary's inability to manage his own funds"). Id., at 1. Out of a total of 184,133 institutionalized persons who were receiving SSI benefits in August 1977 through such "representative payees," 76,494, or approximately 41%, were institutionalized because of mental disorders. Id., at 7 (Table 6) and 2 (Table 1). Thus, even on this incomplete data, a sizable number of SSI recipients were persons institutionalized for mental illness.
15
Appellees appear to concede the rationality of Congress' general exclusion of publicly institutionalized persons from full SSI benefits.
16
An otherwise eligible person does not receive SSI benefits if he is receiving long-term treatment in a medical facility that is not certified under Medicaid standards as a provider. See § 1861 of the Act, 42 U.S.C. § 1395x. These strict standards exclude many facilities but work to the ultimate benefit of those receiving Medicaid. Cf. O'Bannon v. Town Court Nursing Center, 447 U.S. 773, 100 S.Ct. 2467, 65 L.Ed.2d 506 (1980).
17
The average inpatient stay in public mental hospitals is short. Recently collected data for 1975 reveal a median stay in state and county mental hospitals of only 25.5 days. Witkin, Characteristics of Admissions to Selected Mental Health Facilities, 1975: An Annotated Book of Charts and Tables, National Institute of Mental Health 93, DHHS Publication No. (ADM) 80-1005 (1981). This study also showed that young and elderly patients had longer periods of stay than patients in the middle-age group. Id., at 95. The rapidity with which inpatients are released from public institutions has increased since the 1950's. In 1971 75% of all patients admitted to state mental hospitals were released within the first three months, while 87% were released within the first six months. Ozarin, Redick & Taube, A Quarter Century of Psychiatric Care, 1950-1974: A Statistical Review, 27 Hospital & Community Psychiatry 515, 516 (1976). Data from the National Institute of Mental Health show that the proportion of "patient care episodes" (admissions during a year plus residents at the beginning of the year) attributable to inpatient treatment at state and county hospitals declined from 49% in 1955 to 9% in 1977. This dramatic decrease in the percentage of persons admitted to these hospitals was paralleled by a growth in treatment through outpatient and community mental health facilities; that percentage grew from 23% in 1955 to 76% in 1977. Witkin, Trends in Patient Care Episodes in Mental Health Facilities, 1955-1977, National Institute of Mental Health, Mental Health Statistical Note No. 154, p. 3 (Sept. 1980). At the same time, the total number of "patient care episodes" increased fourfold, from approximately 1.7 million in 1955 to 6.9 million in 1977. Id., at 1.
18
To be eligible for Medicaid reimbursement for inpatient services, mentally ill persons under the age of 21 being treated in mental institutions must be receiving "active treatment" that meets standards prescribed by the Secretary and that "can reasonably be expected to improve the condition, by reason of which such services are necessary, to the extent that eventually such services will no longer be necessary." § 1905(h)(1)(B) of the Act, 42 U.S.C. § 1396d(h)(1)(B).
19
The Medicaid limitation was based on Congress' assumption that the care of persons in public mental institutions was properly a responsibility of the States. See H.R.Rep. No. 1300, 81st Cong., 1st Sess., 42 (1949) (enacting federal funding for services to the needy aged, blind, and disabled provided in public medical institutions, but excluding assistance to those in "public or private institutions for mental illness and tuberculosis, since the States have generally provided for medical care of such cases"); S.Rep. No. 404, 89th Cong., 1st Sess., pt. 1, pp. 144-147 (1965), U.S.Code Cong. & Admin.News 1965, p. 1943 (enactment of Medicaid providing coverage only to the aged needy in mental or tuberculosis institutions; noting that "[t]he reason for this exclusion was that long-term care in such hospitals had traditionally been accepted as a responsibility of the States," id., at 144, U.S.Code Cong. & Admin.News 1965, p. 2084. This exclusion was upheld in Legion v. Richardson, 354 F.Supp. 456 (SDNY), summarily aff'd sub nom. Legion v. Weinberger, 414 U.S. 1058, 94 S.Ct. 564, 38 L.Ed.2d 465 (1973), and Kantrowitz v. Weinberger, 388 F.Supp. 1127 (DC 1974), aff'd, 174 U.S.App.D.C. 182, 530 F.2d 1034, cert. denied, 429 U.S. 819, 97 S.Ct. 64, 50 L.Ed.2d 79 (1976), and appellees disavow any intention to dispute that holding. Brief for Appellees 26-27; Tr. of Oral Arg. 19.
20
Whether a State chooses to elect or not to elect to provide an equivalent monthly stipend to institutionalized mental patients does not alter the rationality of Congress' decision.
21
The Secretary has interpreted § 1611(e)(1)(B) to require that at least 50% of the cost of services be reimbursed by Medicaid before the reduction of benefits becomes effective. 20 CFR § 416.231(b)(5) (1980).
22
Congress continues to investigate other more general solutions and to propose alterations in § 1611(e). See H.R.Rep. No. 96-451, pt. 1, p. 153 (1979); 125 Cong.Rec. 31349-31350, 31354-31355, 31356 (1979) (remarks of Rep. Corman, Rep. Pepper, and Rep. Bingham) (proposing amendment to § 1611(e) to forestall reduction of benefits until after eligible individual has been institutionalized in a Medicaid institution for three months); Staff of the Senate Committee on Finance, The Supplemental Security Income Program, 95th Cong., 1st Sess., 109-115 (Comm. Print 1977) (advocating legislative amendments standardizing the monthly stipend to institutionalized persons).
23
"When a legal distinction is determined, as no one doubts that it may be, between night and day, childhood and maturity, or any other extremes, a point has to be fixed or a line has to be drawn, or gradually picked out by successive decisions, to mark where the change takes place. Looked at by itself without regard to the necessity behind it the line or point seems arbitrary. It might as well or nearly as well be a little more to one side or the other. But when it is seen that a line or point there must be, and that there is no mathematical or logical way of fixing it precisely, the decision of the legislature must be accepted unless we can say that it is very wide of any reasonable mark." Louisville Gas Co. v. Coleman, 277 U.S. 32, 41, 48 S.Ct. 423, 426, 72 L.Ed. 770 (1928) (Holmes, J., dissenting).
24
The amount of money, and the number of people potentially involved, are not inconsiderable. Although the appellees do not agree, the Secretary estimates that the annual cost of implementing the District Court's order nationwide would approximate $30 million. Reply Memorandum for Appellant 3. In 1979, a total of almost 2.2 million people were receiving SSI benefits for disabilities, an increase of over 900,000 from January 1974. See Social Security Bulletin 49 (Table M-24) (June 1979). Further, of all the disabled adults who applied for benefits between January 1974 and July 1975, 1.1% were denied eligibility by reason of their residence in a public institution. See S.Rep. No. 95-1312, p. 7 (table) (1978).
1
Other classes of institutionalized people denied the reduced SSI allowance include patients in tubercular institutions and prison inmates.
2
The Court too quickly dispatches the argument that § 1611(e) classifies on the basis of mental illness. While it is true that not all mentally ill people are denied the benefit, and that some people denied the benefit are not mentally ill, it is inescapable that appellees are denied the benefit because they are patients in mental institutions. Only the mentally ill are treated in mental institutions. While I would agree that there is no indication that Congress intended to punish or slight the mentally ill, the history of Medicaid demonstrates Congress' disinclination to involve the Federal Government in state treatment of mental illness in public institutions. See, infra, this page and 242. Because I find the classification irrational, I do not reach the question whether classifications drawn in part on the basis of mental health require heightened scrutiny as appellees suggest.
3
The only indication of congressional intent states: "No assistance benefits will be paid to an individual in a penal institution." H.R.Rep. No. 92-231, p. 150 (1971), U.S.Code Cong. & Admin.News 1972, p. 5136. A mental hospital is not a penal institution. Neither the Secretary nor the Court argues that the exclusion of appellees from the comfort allowance rationally furthers this purpose.
4
The Court has employed numerous formulations for the "rational basis" test. U. S. Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 176-177, n. 10, 101 S.Ct. 453, 460, n. 10 (1980). Members of the Court continue to hold divergent views on the clarity with which a legislative purpose must appear, see id., at 180-181, 101 S.Ct., at 461-462 (STEVENS, J., concurring in judgment); id., at 187-188, 101 S.Ct., at 465-466 (BRENNAN, J., dissenting), and about the degree of deference afforded the legislature in suiting means to ends, compare Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78-79, 31 S.Ct. 337, 340, 55 L.Ed. 369 (1911), with F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989 (1920).
5
Congress' failure to make policy judgments can distort our system of separation of powers by encouraging other branches to make essentially legislative decisions. See Cannon v. University of Chicago, 441 U.S. 677, 743, 99 S.Ct. 1946, 1981, 60 L.Ed.2d 560 (1979) (POWELL, J., dissenting).
6
Some of our cases suggest that the actual purpose of a statute is irrelevant, Flemming v. Nestor, 363 U.S. 603, 612, 80 S.Ct. 1367, 1373, 4 L.Ed.2d 1435 (1960), and that the statute must be upheld "if any state of facts reasonably may be conceived to justify" its discrimination, McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961). Although these cases preserve an important caution, they do not describe the importance of actual legislative purpose in our analysis. We recognize that a legislative body rarely acts with a single mind and that compromises blur purpose. Therefore, it is appropriate to accord some deference to the executive's view of legislative intent, as similarly we accord deference to the consistent construction of a statute by the administrative agency charged with its enforcement. E. g., Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965). Ascertainment of actual purpose to the extent feasible, however, remains an essential step in equal protection.
7
This concession makes it difficult to accept the Court's conclusion that Congress rationally could have decided that "Medicaid recipients in public institutions . . . are the most needy and the most deserving of the small monthly supplement." Ante, at 239.
| 12
|
450 U.S. 261
101 S.Ct. 1097
67 L.Ed.2d 220
Raymond WOOD et al., Petitioners,v.State of GEORGIA.
No. 79-6027.
Argued Nov. 4, 1980.
Decided March 4, 1981.
Syllabus
Petitioners, former employees of an "adult" movie theatre and bookstore, were convicted of distributing obscene materials in violation of a Georgia statute and received fines and jail sentences but were placed on probation on the condition that they make monthly installment payments toward the satisfaction of their fines. When petitioners failed to make the payments, a probation revocation hearing was held. Petitioners, who had by that time left their jobs in the "adult" establishments, offered evidence of their inability to make the payments and stated that they had expected their former employer to pay the fines for them. When petitioners were unable to make up their arrearages, the Georgia trial court denied their motion to modify the probation conditions and ordered petitioners to serve the remaining portions of their jail sentences. After the Georgia Court of Appeals affirmed, this Court granted a writ of certiorari to decide whether it is constitutional under the Equal Protection Clause to imprison a probationer solely because of his inability to make installment payments on fines.
Held : This is an inappropriate case in which to decide the equal protection question. Since the record suggests that petitioners may be in their present predicament because of their counsel's divided loyalties, a possible due process violation is apparent, and the case is remanded for further findings concerning such possible violation. Pp. 264-274.
(a) The transcript of the revocation hearing shows that petitioners understood that their former employer would provide legal assistance if they should face legal trouble as a result of their employment, would pay any fines, and would post any necessary bonds. Petitioners have been represented since the time of their arrest by a single lawyer, who was paid by the employer and who posted bonds in this case and paid other fines when each of the petitioners was arrested a second time. If petitioners' counsel was serving the employer's interest in obtaining an equal protection ruling that offenders cannot be jailed for failure to pay fines that are beyond their means, which could only occur if petitioners received fines beyond their own means and then risked jail by failing to pay, this conflict in goals may have influenced the trial court's decisions to impose large fines and to revoke the probations rather than modify the conditions thereof. Pp. 264-268.
(b) If counsel was influenced in his basic strategic decisions by the employer's interest, petitioners' due process right to representation free from conflicts of interest was not respected at the revocation hearing, or at earlier stages of the proceedings. The possibility of a conflict of interest was sufficiently apparent at the time of the revocation hearing to impose upon the court a duty to inquire further. If on remand the court finds that an actual conflict of interest existed at the time of the probation revocation or earlier, and that there was no valid waiver of the right to independent counsel, it must hold a new revocation hearing untainted by a legal representative serving conflicting interests. Pp. 268-274.
150 Ga.App. 582, 258 S.E.2d 171, vacated and remanded.
Glenn Zell, Atlanta, Ga., for petitioners.
John W. Dunsmore, Jr., Atlanta, Ga., for respondent.
Justice POWELL delivered the opinion of the Court.
1
Petitioners in this case are three persons who were convicted of distributing obscene materials and sentenced to periods of probation on the condition that they make regular installment payments toward the satisfaction of substantial fines. Because they failed to make these payments, their probations were revoked by the Georgia court, and they are now claiming that these revocations discriminated against them on the basis of wealth in violation of the Equal Protection Clause of the Fourteenth Amendment. Since the record in this case suggests that petitioners may be in their present predicament because of the divided loyalties of their counsel, we have concluded that it is inappropriate to reach the merits of this difficult equal protection issue. Instead, we remand this case for further findings concerning a possible due process violation.
2
* Petitioners Tante and Allen were working, respectively, as the projectionist and ticket taker at the Plaza Theatre in Atlanta when they were arrested and charged with two counts of distributing obscene materials in violation of Ga.Code § 26-2101 (1978). About four months later, petitioner Wood was arrested and charged with two violations of the same provision after he sold two magazines to a policeman while working at the Plaza Adult Bookstore. There is no evidence that any of these employees owned an interest in the businesses they served or had any managerial responsibilities.
3
Tante and Allen were tried together and found guilty on both counts by a jury. A separate jury convicted Wood on both counts. All three were then sentenced by the same judge. Tante and Allen each received a fine of $5,000 and two concurrent jail sentences of 12 months, but they were allowed immediate probation. Wood received two $5,000 fines and two consecutive jail sentences of 12 months; he also was placed on probation immediately.
4
After these convictions were affirmed on appeal,1 the trial court issued orders specifying the terms of probation. These required all three petitioners to make installment payments on their fines of $500 per month during the course of their periods of probation. After three months had elapsed, none of the petitioners had made any of the required payments, and the county probation officers therefore moved for revocation of their probations. At a hearing on January 26, 1979, petitioners admitted that they had failed to make the installment payments, but offered convincing evidence of their inability to make these payments out of their own earnings.2 They also stated that they had expected their employer3 to pay the fines for them. Faced with petitioners' complete failure to satisfy a condition of their probations, the court decided to revoke these probations unless petitioners made up their arrearages within five days. Unable to do so, petitioners moved for a modification of the conditions of their probations. This motion was denied, and the court ordered petitioners to serve the remaining portions of their jail sentences.
II
5
After this revocation decision was affirmed by the Georgia Court of Appeals,4 we granted a writ of certiorari to decide a question presented by the facts just summarized: whether it is constitutional under the Equal Protection Clause to imprison a probationer solely because of his inability to make installment payments on fines. 446 U.S. 951, 100 S.Ct. 2916, 64 L.Ed.2d 807. On closer inspection, however, the record reveals other facts that make this an inappropriate case in which to decide the constitutional question. Where, as here, a possible due process violation is apparent on the particular facts of a case, we are empowered to consider the due process issue.5 Moreover, for prudential reasons, it is preferable for us to remand for consideration of this issue, rather than decide a novel constitutional question that may be avoided. Cf. Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 154, 89 L.Ed. 101 (1944) (broad constitutional questions should be avoided where a case may be decided on narrower, statutory grounds on remand).
6
Petitioners have been represented since the time of their arrests by a single lawyer. The testimony of each petitioner at the probation revocation hearing makes it clear that none of them ever paid—or was expected to pay—the lawyer for his services.6 They understood that this legal assistance was provided to them by their employer.7 In fact, the transcript of this hearing reveals that legal representation was only one aspect of the assistance that was promised to petitioners if they should face legal trouble as a result of their employment. They were told that their employer also would pay any fines and post any necessary bonds,8 and these promises were kept for the most part. In this case itself, as petitioners' lawyer stated at oral argument, bonds were posted with funds he provided.9 In addition, when each of the petitioners was arrested a second time, he paid the resulting fines.10 All aspects of this arrangement were revealed to the court at the revocation hearing.
7
For some reason, however, the employer declined to provide money to pay the fines in the cases presently under review.11 Since it was this decision by the employer that placed petitioners in their present predicament, and since their counsel has acted as the agent of the employer and has been paid by the employer, the risk of conflict of interest in this situation is evident. The fact that the employer chose to refuse payment of these fines, even as it12 paid other fines and paid the sums necessary to keep petitioners free on bond in this case, suggests the possibility that it was seeking—in its own interest—a resolution of the equal protection claim raised here. If offenders cannot be jailed for failure to pay fines that are beyond their own means, then this operator of "adult" establishments may escape the burden of paying the fines imposed on its employees when they arrested for conducting its business. To obtain such a ruling, however, it was necessary for petitioners to receive fines that were beyond their own means and then risk jail by failing to pay.
8
Although we cannot be sure that the employer and petitioners' attorney were seeking to create a test case, there is a clear possibility of conflict of interests on these facts. Indications of this apparent conflict of interest may be found at various stages of the proceedings below. It was conceded at oral argument here that petitioners raised no protest about the size of the fines imposed at the time of sentencing. During the three months leading up to the probation revocation hearing they failed to pay even small amounts toward their fines to indicate their good faith. In fact, throughout this period, petitioners apparently remained under the impression that—as promised—the fines would be paid by the employer. Even at the revocation hearing itself, petitioners attempted to prove their inability to make the required payments but failed to make a motion for a modification of those requirements. That motion was not made until one day before petitioners were due to be incarcerated.13 A review of these facts demonstrates that, if petitioners' counsel was serving the employer's interest in setting a precedent, this conflict in goals may well have influenced the decision of the trial court to impose such large fines, as well as the decisions to revoke petitioners' probations rather than to modify the conditions.14
III
9
Courts and commentators have recognized the inherent dangers that arise when a criminal defendant is represented by a lawyer hired and paid by a third party, particularly when the third party is the operator of the alleged criminal enterprise.15 One risk is that the lawyer will prevent his client from obtaining leniency by preventing the client from offering testimony against his former employer or from taking other actions contrary to the employer's interest.16 Another kind of risk is present where, as here, the party paying the fees may have had a long-range interest in establishing a legal precedent and could do so only if the interests of the defendants themselves were sacrificed.17 As suggested above, the factual setting of this case requires the Court to take note of the potential unfairness resulting from this particular third-party fee arrangement. Petitioners were mere employees, performing the most routine duties, yet they received heavy fines on the apparent assumption that their employer would pay them. They now face prison terms solely because of the employer's failure to pay the fines, having been represented throughout by a lawyer hired by that employer. The potential for injustice in this situation is sufficiently serious to require us to consider whether petitioners have been deprived of federal rights under the Due Process Clause of the Fourteenth Amendment.
10
We have held that due process protections apply to parole and probation revocations. 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). In Scarpelli we adopted a standard for deciding when due process requires appointment of counsel for indigent offenders during revocation hearings. Recognizing that the "need for counsel at revocation hearings derives, not from the invariable attributes of those hearings, but rather from the peculiarities of particular cases," 411 U.S., at 789, 93 S.Ct., at 1763, we left it to the state tribunals to identify, on a case-by-case basis, the situations in which fundamental fairness requires appointed counsel.
11
In the present case, petitioners appeared at the hearing with retained counsel, as was their right under Ga.Code § 27-2713 (1978). But, significantly, petitioners would have had a right to appointed counsel if they had made the showing of indigence on which they now rely. Scarpelli established a presumption in favor of appointment of counsel in cases where the probation or parole violation is a matter of record but "there are substantial reasons which justified or mitigated the violation and make revocation inappropriate, and . . . the reasons are complex or otherwise difficult to develop or present." 411 U.S., at 790, 93 S.Ct., at 1763. This case, where there were assurances that the fines would be paid by an unnamed employer, falls into that category.
12
Where a constitutional right to counsel exists, our Sixth Amendment cases hold that there is a correlative right to representation that is free from conflicts of interest. E.g., Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); Holloway v. Arkansas, 435 U.S. 475, 481, 98 S.Ct. 1173, 1177, 55 L.Ed.2d 426 (1978). Here, petitioners were represented by their employer's lawyer, who may not have pursued their interests single-mindedly. It was his duty originally at sentencing and later at the revocation hearing, to seek to convince the court to be lenient. On the record before us, we cannot be sure whether counsel was influenced in his basic strategic decisions by the interests of the employer who hired him. If this was the case, the due process rights of petitioners were not respected at the revocation hearing, or at earlier stages of the proceedings below.
13
It is, however, difficult for this Court to determine whether an actual conflict of interest was present, especially without the benefit of briefing and argument on this issue. Nevertheless, the record does demonstrate that the possibility of a conflict of interest was sufficiently apparent at the time of the revocation hearing to impose upon the court a duty to inquire further.18 The facts outlined above were all made known at that time. The court must have known that it had imposed disproportionately large fines penalties that almost certainly were increased because of an assumption that the employer would pay the fines.19 The court did know that petitioners' counsel had been provided by that employer and was pressing a constitutional attack rather than making the arguments for leniency that might well have resulted in substantial reductions in, or deferrals of, the fines. These facts demonstrate convincingly the duty of the court to recognize the possibility of a disqualifying conflict of interest. Any doubt as to whether the court should have been aware of the problem is dispelled by the fact that the State raised the conflict problem explicitly and requested that the court look into it.20
14
For these reasons, we base our decision in this case on due process grounds. The judgment below is vacated and the case remanded with instructions that it be returned to the State Court of Fulton County. That court should hold a hearing to determine whether the conflict of interest that this record strongly suggests actually existed at the time of the probation revocation or earlier. If the court finds that an actual conflict of interest existed at that time, and that there was no valid waiver of the right to independent counsel, it must hold a new revocation hearing that is untainted by a legal representative serving conflicting interests.21
15
Vacated and remanded.
16
Justice STEVENS, concurring.
17
Although I join the Court's opinion, my view that the potential conflict of interest disclosed by the record requires that the judgment be vacated does not rest on the hypothesis that the petitioners' employer may have contrived a test case. See ante, at 267-268, 269-270. It rests instead on the likelihood that the state trial court would have imposed a significantly different sentence if it had not been led to believe that the employer would pay the fines.
18
Independent counsel for these individuals surely would not have permitted the trial judge to impose fines that were manifestly beyond their ability to pay without obtaining an enforceable commitment from the employer. But a lawyer faithfully representing the interest of the employer surely would not make any such commitment gratuitously. The net result of the conflicting interests represented by one lawyer is a manifestly unfair prison sentence imposed on employees of the person who is probably the principal wrongdoer.
19
Justice BRENNAN, with whom Justice MARSHALL joins, concurring in part and dissenting in part.
20
While I agree with the Court that "there is a clear possibility of conflict of interest" shown on this record, ante, at 267, and that the Court has the option to remand on this issue, I would nevertheless finally dispose of this case. That can be done, as Justice WHITE concludes, by reversing the judgment of the Georgia Court of Appeals, for the reason that Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971), compels that conclusion. I would, however, reverse the conviction for distributing obscene materials in violation of Ga.Code § 26-2101 (1978) under the view I have frequently expressed, and to which I adhere, that such an obscenity statute is facially unconstitutional. See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 73, 113, 93 S.Ct. 2628, 2642, 2662, 37 L.Ed.2d 446 (1973) (BRENNAN, J., dissenting); McKinney v. Alabama, 424 U.S. 669, 678, 96 S.Ct. 1189, 1195, 47 L.Ed.2d 387 (1976) (separate opinion of BRENNAN, J.).
21
Justice STEWART, concurring in part and dissenting in part.
22
In my view the Court is correct in remanding because of the "clear possibility of conflict of interest" shown on the record in this case. I would, however, go further and reverse the convictions themselves, which were for violations of an obscenity statute. I believe that that statute, Ga.Code § 26-2101 (1978), is facially unconstitutional.
23
Justice WHITE, dissenting.
24
The Court's disposition of this case is twice flawed: first, there is no jurisdiction to vacate the judgment on the federal constitutional ground upon which the Court rests; second, the record does not sustain the factual inferences required to support the Court's judgment.
25
* The petition for certiorari presented a single federal question: Does the Equal Protection Clause of the Fourteenth Amendment permit a State to revoke an indigent's probation because he has failed to make regular payments toward the satisfaction of a fine? This issue was properly presented to and ruled upon by the Georgia courts. No other federal constitutional issue was presented there or brought here. The Court, however, disposes of this case on another ground, but a ground that also involves a constitutional issue: the possibly divided loyalties of petitioners' counsel may have deprived petitioners of due process and their constitutional right to counsel. Thus, we are to avoid one constitutional issue in favor of another, which was not raised by petitioners either here or below. I do not believe that this Court has jurisdiction even to reach this question, nor do I see why we should prefer one constitutional issue to another, even if we had the jurisdiction.
26
The Court, ante, at 273, n. 20 suggests that the conflict-of-interest issue was presented here by respondent, the State of Georgia. But the State merely argued that petitioners' attorney was also the attorney for petitioners' employer who had agreed to pay the fine and who was now seeking to avoid payment by arguing petitioners' indigency. Neither here nor in the trial court has the State ever suggested that petitioners were deprived of due process or raised any other federal constitutional issue. The State has surely not confessed error or given any other indication that it is seeking anything but an affirmance of the decision below—hardly an appropriate disposition if the State is suggesting that petitioners were denied their constitutional right to counsel. Moreover, nowhere in the passage of the response cited by the Court are the terms "conflict of interest" used, nor is there even a clear suggestion made that counsel was acting other than in the interests of petitioners in arguing that an indigent's probation cannot be revoked for failure to pay a fine.
27
However the State's argument here is to be characterized, this case comes to us on writ of certiorari to a state court. Our jurisdiction, therefore, arises under 28 U.S.C. § 1257(3) and is limited here to federal rights and privileges that have been "specially set up or claimed," and upon which there has been a final decision by the highest state court in which a decision could be had. The right-to-counsel claim was never raised in the state court, nor did the state court ever render a decision on the issue: There is, thus, a jurisdictional bar to our reaching the issue. Moore v. Illinois, 408 U.S. 786, 799, 92 S.Ct. 2562, 2570, 33 L.Ed.2d 706 (1972); Hill v. California, 401 U.S. 797, 805, 91 S.Ct. 1106, 1111, 28 L.Ed.2d 484 (1971); Cardinale v. Louisiana, 394 U.S. 437, 89 S.Ct. 1161, 22 L.Ed.2d 398 (1969), and cases cited there.
28
It is as clear as could be that no federal constitutional claim of any kind was made in the state courts with respect to a conflict of interest and the adequacy of petitioners' counsel. At the revocation hearing, petitioners testified that they were without funds to pay the fines, and their counsel urged that to incarcerate them would violate the Equal Protection Clause of the Fourteenth Amendment. On cross-examination, petitioners indicated that they had been assured by their employer that the employer would pay employee fines if they were convicted in cases such as this. The State's attorney then asserted several times that there was a conflict of interest because petitioners' counsel also represented petitioners' corporate employer and was being paid by that concern to represent petitioners.1 But far from suggesting that the alleged conflict was a ground of relief for petitioners, the State suggested that petitioners and their counsel had misled the court into thinking that the employer would pay the fines, and that the employer's undertaking should be enforced by sending petitioners "out to the jail for a while."2 rather than permit the employer to renege and free petitioners on equal protection grounds. This would convince the employer to pay because it would not want other employees to know that they would not be taken care of in the event trouble arose.3 In the course of these arguments, the State never mentioned the Federal Constitution.
29
Petitioners' attorney in turn responded that although there had been an advance arrangement between petitioners and their employer that fines would be paid by the latter, the employer had not paid, and the only issue was whether petitioners should go to jail when they were without funds themselves to pay the fines. He urged that jailing them would violate the Equal Protection Clause.4 He also suggested that if the asserted conflict of interest raised an ethical problem in the mind of the State's attorney, a complaint should be filed with the State Bar.5
30
The judge, apparently rejecting the equal protection claim, revoked petitioners' probation, although petitioners have remained free on bond pending appeal. The sole issue in the Georgia Court of Appeals was whether petitioners had been denied the equal protection of the laws. That claim was rejected, the judgment of revocation was affirmed, and the Georgia Supreme Court denied further review. The equal protection issue, as I have said, is the only federal constitutional issue that has been presented here.
31
The Court asserts that "it is appropriate to treat the due process issue as one 'raised' below, and proceed to consider it here." Ante, at 265, n. 5. However, the Court fails to cite any passage from the record in which the alleged conflict of interest was presented to the state courts as a problem of constitutional dimension. The Court relies on 28 U.S.C. § 2106, but that section does not purport to expand the statutory limits on the Court's jurisdiction; rather, it relates only to the disposition of the case once jurisdiction exists. What Justice REHNQUIST wrote in Vachon v. New Hampshire, 414 U.S. 478, 482, 94 S.Ct. 664, 666, 38 L.Ed.2d 666 (1974) (dissenting opinion), is equally applicable here:
32
"A litigant seeking to preserve a constitutional claim for review in this Court must not only make clear to the lower courts the nature of his claim, but he must also make it clear that the claim is constitutionally grounded. Bailey v. Anderson, 326 U.S. 203, 66 S.Ct. 66, 90 L.Ed. 3 (1945)."
33
Petitioners have done neither; nor has respondent done it for them.
34
The Court apparently believes that under Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), the possibility of a conflict of interest of constitutional dimensions should have prompted further inquiry by the trial judge. But Cuyler v. Sullivan did not purport to give this Court jurisdiction over a claim otherwise beyond its reach. Cuyler held only that if a trial court "reasonably should know that a particular conflict exists," id., at 347, 100 S.Ct., at 1717, then a failure to initiate an inquiry may constitute a Sixth Amendment violation. If this is the case here, then petitioners remain free to seek collateral relief in the lower courts.6
35
A majority of the Court, however, proceeds on the basis that it has jurisdiction to address the due process/adequacy-of-counsel issue. Accordingly, I proceed on that assumption.
II
36
As I see it, the Court's disposition of the case rests upon critical factual assumptions that are not supported by the record. Certainly the mere fact that petitioners' counsel was paid by their employer does not in itself constitute a conflict of interest of constitutional dimension.7 Indeed, one would expect that in the normal course of things the interests of petitioners and of their employer would have corresponded throughout the proceedings. It would have been just as much in the employer's as in the employees' interest to have had the employees adjudged innocent. Similarly, assuming that the employer had promised to pay whatever fines might be levied against the employees, it was in the employer's interest, just as it was in their interest, to have these fines set at the lowest possible amount. The conflict of interests, therefore, only emerges by assuming that the employer, the owner of an adult bookstore and a movie theater, set out to construct a constitutional test case and the petitioners' counsel represented the employer in this regard. Not even a decision to pursue a test case, however, would in itself create a conflict of interest. One must assume further that it was for the sake of this interest that the employer decided not to pay the fines and for the sake of this interest of the employer that petitioners' attorney did not object to the size of the fines or move in timely fashion for a modification of the conditions of probation.
37
I recognize that the Court's conclusion relies only upon the "possibility" of this scenario, but I find these assumptions implausible and would require a much stronger showing than this record reveals before I would speculate on the likelihood of such a motive of the employer and the knowing cooperation of counsel to this end, let alone dispose of the case on that basis.8 First, since the only submission of petitioners was that they should not go to jail for failure to pay their fines, even if the court sustained their position, their liability on the fine would remain as would that of the employer if it had an enforceable obligation to pay. It is, therefore, difficult to find any interest that the employer might have in litigating a test case on this issue through the Georgia courts and to this Court. Second, the record suggests two much more plausible explanations of the employer's failure to pay the fines, neither of which implies a conflict of interest: The employer may have reneged on its promise to pay fines because petitioners were no longer working for the employer, or it may have reneged because ownership of the establishments changed hands.9 The fact that the employer may have continued to meet some of the expenses, but did not pay the substantial fines, does not indicate to me that the employer manipulated the situation to create a test case; more likely, the employer reneged on his promise because, given the change in circumstances of both the employer and the petitioners, the expense was simply greater than that which the employer was willing to bear at this point.
38
If the employer was simply unwilling to pay the fines, then the arguments advanced by the attorney may very well have been the best and only arguments available to petitioners.10 Indeed, the employer having failed to pay, counsel would have been derelict not to press the equal protection claim on behalf of his indigent clients. Obviously, success on this ground would have advantaged petitioners; and I fail to see, as apparently the trial court failed to see, Tr. 15, 28, how petitioners will be constitutionally deprived by assertion of the equal protection claim. The fact that petitioners did move, although belatedly, for a modification of the conditions of parole11 further indicates that the employer was more interested in cutting his costs than creating a test case.12 On this record, therefore, I believe it necessary to reach the substantive question that we granted certiorari to resolve.
III
39
Although I think that there are circumstances in which a State may impose a suitable jail term in lieu of a fine when the defendant cannot or will not pay the fine, there are constitutional limits on those circumstances, and the State of Georgia has exceeded the limits in this case.
40
In Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970), Williams, convicted of petty theft, received the maximum sentence of one year's imprisonment and a $500 fine (plus $5 in court costs). As permitted by Illinois statute, the judgment provided that if, when the one-year sentence expired, Williams did not immediately pay the fine and court costs, he was to remain in jail a length of time sufficient to satisfy the total debt, calculated at the rate of $5 per day. We held that "the Equal Protection Clause of the Fourteenth Amendment requires that the statutory ceiling placed on imprisonment for any substantive offense be the same for all defendants irrespective of their economic status." Id., at 244, 90 S.Ct., at 2023. Therefore, the Illinois statute as applied to Williams, who was too poor to pay the fine, violated the Equal Protection Clause.
41
Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971), involved an indigent defendant incarcerated for nonpayment of fines imposed for violating traffic ordinances. Under Texas law, traffic offenses were punishable only by fines, not imprisonment. When Tate could not pay $425 in fines imposed for nine traffic convictions, he was jailed pursuant to the provisions of another Texas statute and a municipal ordinance that required him to remain in jail a sufficient time to satisfy the fines, again calculated at the rate of $5 per day. We reversed on the authority of Williams v. Illinois, saying: "Since Texas has legislated a 'fines only' policy for traffic offenses, that statutory ceiling cannot, consistently with the Equal Protection Clause, limit the punishment to payment of the fine if one is able to pay it, yet convert the fine into a prison term for an indigent defendant without the means to pay his fine." 401 U.S., at 399, 91 S.Ct., at 671. The Court, however, was careful to repeat what it had said in Williams : " 'The state is not powerless to enforce judgments against those financially unable to pay a fine' " and is free to choose other means to effectuate this end. 401 U.S., at 399, 91 S.Ct., at 671.
42
In Williams v. Illinois, supra, at 243, 90 S.Ct., at 2023, the Court emphasized that its holding "does not deal with a judgment of confinement for nonpayment of a fine in the familiar pattern of alternative sentence of $30 or 30 days." In neither Williams nor Tate did it appear that "jail [was] a rational and necessary trade-off to punish the individual who possesses no accumulated assets . . . since the substitute sentence provision, phrased in terms of a judgment collection statute, [did] not impose a discretionary jail term as an alternative sentence, but rather equate[d] days in jail with a fixed sum." Williams v. Illinois, supra, at 265, 90 S.Ct., at 2034. (Harlan, J., concurring in result). As both the Court and Justice Harlan implied, if the Court had confronted a legislative scheme that imposed alternative sentences, the analysis would have been different.
43
Indigency does not insulate those who have violated the criminal law from any punishment whatsoever. As I see it, if an indigent cannot pay a fine, even in installments, the Equal Protection Clause does not bar the State from specifying other punishment, even a jail term, in lieu of the fine.13 To comply with the Equal Protection Clause, however, the State must make clear that the specified jail term in such circumstances is essentially a substitute for the fine and serves the same purpose of enforcing the particular statute that the defendant violated. In both Williams and Tate the State violated this principle by speaking inconsistently: In each case, the legislature declared its interest in penalizing a particular offense to be satisfied by a specified jail term (in Tate, no jail term at all) and at the same time subjected the indigent offender to a greater term of punishment.
44
The incarceration of the petitioners in this case cannot be distinguished from that which we found to be unconstitutional in Williams and Tate. Here, the State imposed probated prison terms and fines, but made installment payment of the fines a condition of probation: Had the fines been paid in full and other conditions of probation satisfied, there would have been no time in jail at all. Thus, the ends of the State's criminal justice system did not call for any loss of liberty except that incident to probation.
45
Under these circumstances, the State's only interest in incarcerating these petitioners for not paying their fines was to impose a loss of liberty that would be efficacious as the fines in satisfying the State's interests in enforcing the criminal law involved. However, no calculation like that was made here. Upon nonpayment, probation was automatically revoked and petitioners were sentenced to their full prison terms.14 There was no attempt to provide, in addition to the jail terms for which they were given probation, a term of imprisonment that would be a proper substitute for the fines. In fact, even at the conclusion of their prison terms, petitioners will apparently be liable for the unpaid fines. This is little more than imprisonment for failure to pay a fine, without regard to the goals of the criminal justice system. As in Williams, and Tate, the State is speaking inconsistently concerning the necessity of imprisonment to meet its penal objectives; imprisonment of an indigent under these circumstances is constitutionally impermissible.
46
This case falls well within the limits of what we meant to prohibit when we announced in Tate v. Short, supra, at 398, 91 S.Ct., at 671, quoting Morris v. Schoonfield, 399 U.S. 508, 509, 90 S.Ct. 2232, 2233, 26 L.Ed.2d 773 (1970), that the " 'Constitution prohibits the State from imposing a fine as a sentence and then automatically converting it into a jail term solely because the defendant is indigent.' "
47
Accordingly, I would reverse the judgment.
1
Allen v. State, 144 Ga.App. 233, 240 S.E.2d 754 (1977), cert. denied, 439 U.S. 899, 99 S.Ct. 264, 58 L.Ed.2d 247 (1978); Wood v. State, 144 Ga.App. 236, 240 S.E.2d 743 (1977), cert. denied, 439 U.S. 899, 99 S.Ct. 265, 58 L.Ed.2d 247 (1978).
2
According to their testimony, all of the petitioners had by that time left their jobs in the "adult" establishments. Allen testified that her only income was $250 per month from unemployment insurance. See Transcript of Revocation Hearing, State Court of Fulton County, Criminal Division (Jan. 26, 1979) (hereinafter Tr.), at 7. Tante testified that his income as a correction officer was $540 per month. Id., at 35. He had been unemployed for eight months before obtaining that job. Id., at 39-40. Wood testified that he was trying to support a family and earning $120 per week working at a truck and trailer rental yard. Id., at 53-54.
3
The record suggests that the Plaza Theatre, which employed Tante and Allen, and the Plaza Adult Bookstore, which employed Wood, were under common ownership.
4
150 Ga.App. 582, 258 S.E.2d 171 (1979).
5
Justice WHITE's dissenting opinion argues that this Court lacks jurisdiction to remand this case on due process grounds because, in his view, the conflict-of-interest issue has not been properly presented. To be sure, it was not raised on appeal below or included as a question in the petition for certiorari. These facts merely emphasize, however, why it is appropriate for us to consider the issue. The party who argued the appeal and prepared the petition for certiorari was the lawyer on whom the conflict-of-interest charge focused. It is unlikely that he would concede that he had continued improperly to act as counsel. And certainly the State's Solicitor, whose duty it was to support the judgment below, could not be expected to do more than call the problem to the attention of the courts, as he did. Petitioners were low-level employees, and now appear to be indigent. See n. 2, supra. We cannot assume that they, on their own initiative, were capable of protecting their interests.
As indicated, post, at 277-278, n. 1; see also n. 20, infra, it is abundantly clear that the possibility of a conflict of interest was pointed out to the trial court at the revocation hearing. The State's Solicitor raised the issue repeatedly. The State's Brief in Opposition 4, n. 2, again identified the apparent conflict. See n. 20, infra. Accordingly, counsel for petitioners cannot be heard to complain of any lack of notice.
In this context, it is appropriate to treat the due process issue as one "raised" below, and proceed to consider it here. See Boynton v. Virginia, 364 U.S. 454, 457, 81 S.Ct. 182, 184, 5 L.Ed.2d 206 (1960) (deciding a case on a statutory issue raised below but not raised in this Court). Even if one considers that the conflict-of-interest question was not technically raised below, there is ample support for a remand required in the interests of justice. See 28 U.S.C. § 2106 (authorizing this Court to "require such further proceedings to be had as may be just under the circumstances"); R. Stern & E. Gressman, Supreme Court Practice § 6.27, p. 460 (5th ed. 1978) (in review of state cases, "the Court doubtless limits its power to notice plain error to those situations where it feels the error is so serious as to constitute a fundamental unfairness in the proceedings"). See also Vachon v. New Hampshire, 414 U.S. 478, 94 S.Ct. 664, 38 L.Ed.2d 666 (1974).
6
See Tr. 26 (Allen); id., at 43 (Tante); id., at 63 (Wood).
7
E.g., id., at 42-43 (Tante).
8
As petitioners' lawyer himself put it: "I want to bring this before the Solicitor and the Court that I believe Mrs. Allen told me and she told the Probation Officer that she—they were told, given information that their fine would be paid. The bond would be paid and a lawyer would be representing them." Id., at 14. See also id., at 62-63 (Wood). During oral argument in this Court, the lawyer conceded that he had been paid by the employer during petitioners' trials. Tr. of Oral Arg. 15-16. He indicated that these payments stopped when petitioners went on probation and left their jobs with this employer, but he has never dispelled the implication that he has an ongoing employment arrangement with the employer.
9
Id., at 8. The fact that the employer provided appeal bonds for petitioners after the probation revocation hearing suggests that his involvement with the case did not end when petitioners quit work in these "adult" establishments.
10
Tr. 12, 41, 56-57. These payments took place while the instant cases were still on direct appeal.
11
Counsel suggested at oral argument that the reason for this decision not to pay the fines was a change of ownership. It might also be explained by the fact that petitioners were no longer working for the "adult" establishments. Neither of these facts suggest, however, that the employer had lost interest in the case, since appeal bonds were provided for petitioners. Indeed, the providing of these appeal bonds suggests that the decision not to pay the fines themselves was a conscious one. And the fact that petitioners had left their jobs may have allowed the employer to pursue his goals without any concern about losing petitioners' services in the event of a probation revocation.
12
The record does not make clear whether the employer was an individual or a corporation, or indeed even identify the employer.
13
Petitioners' counsel states that he did attempt to alert the court to the problem of petitioners' inability to pay by letter, soon after their probations began. But no motion was made.
14
There is also a danger that petitioners' lawyer was influenced in his strategic decisions by other improper considerations. Rather than relying solely on the equal protection claims, he could have sought leniency at the probation hearing by arguing that the stiff sentences imposed on petitioners should be modified in light of the employer's unanticipated refusal to pay the fines. But this would have required him to dwell on the apparent bad faith of his own employer, and to emphasize the possibly improper arrangement by which he came to represent petitioners. Thus it is not correct, as Justice WHITE argues, post, at 281, that the "conflict of interests . . . only emerges by assuming that the employer . . . set out to construct a constitutional test case." Even if the employer's motives were unrelated to its interest in establishing a precedent, its refusal to pay the fines put the attorney in a position of conflicting obligations.
15
As one court has stated:
"A conflict of interest inheres in every such situation. . . . It is inherently wrong to represent both the employer and the employee if the employee's interest may, and the public interest will, be advanced by the employee's disclosure of his employer's criminal conduct. For the same reasons, it is also inherently wrong for an attorney who represents only the employee to accept a promise to pay from one whose criminal liability may turn on the employee's testimony." In re Abrams, 56 N.J. 271, 276, 266 A.2d 275, 278 (1970).
See also In re Investigation Before April 1975 Grand Jury, 174 U.S.App.D.C. 268, 274, n. 11, 531 F.2d 600, 606, n. 11 (1976); Pirillo v. Takiff, 462 Pa. 511, 341 A.2d 896 (1975), appeal dism'd and cert. denied, 423 U.S. 1083, 96 S.Ct. 873, 47 L.Ed.2d 94 (1976); ABA Model Code of Professional Responsibility DR 5-107(A), (B) (1980); ABA Standards for Criminal Justice 4-3.5(c) (2d ed. 1980); Lowenthal, Joint Representation in Criminal Cases: A Critical Appraisal, 64 Va.L.Rev. 939, 960-961 (1978).
16
There are indications in the transcript of the revocation hearing that the State had been unable to learn the name of petitioners' employer, and that petitioners were concealing its identity. At one point, the Solicitor stated: "Mrs. Allen, is it not true each time you were arrested that we sought to get your cooperation to find out who is operating these places?" Transcript 28. Later, during the Solicitor's cross-examination of Tante, the following colloquy took place:
"Q Mr. Tante, who did you call when you said you called and told them to get someone else out there?
"A I called the secretary of the union first.
"Q And what about the company? Did you call them?
"A And the company, I gave notice to—whatever his name was. Mister—what was his name?
"MR. ZELL [petitioners' attorney] I'm sorry, I wasn't listening.
"A The manager of the theatre, Mister—I think it was you I told first. I said, 'I want to get out of the theatre as soon as possible. In fact, I'd like to leave now.' And I said, 'As far as I'm concerned, I'm out, and that's it.'
"Q You called Mr. Zell to tell him to get someone else out there to operate the theatre?
"A No, sir. I called my business secretary at the union, told them I wanted out; to find me another job. If they wanted to put a man in there sent them out. And they informed me to get on out of there that they would not send another union man out there.
"Q But you also talked to someone with the company, you said?
"A At the time, I did not, sir. I told Mister—Mrs. Allen, I said—
"MR. ZELL Hold it. Hold it, Mr. Tante. It's now ten-thirty, Your Honor. We're getting into areas that—the only question here is violation or failure to pay as directed." Id., at 45-46.
17
The ABA Model Code of Professional Responsibility EC 5-23 (1980) states:
"A person or organization that pays or furnishes lawyers to represent other possesses a potential power to exert strong pressures against the independent judgment of those lawyers. Some employers may be interested in furthering their own economic, political, or social goals without regard to the professional responsibility of the lawyer to his individual client. Others may be far more concerned with establishment or extension of legal principles than in the immediate protection of the rights of the lawyer's individual client. . . . Since a lawyer must always be free to exercise his professional judgment without regard to the interests or motives of a third person, the lawyer who is employed by one to represent another must constantly guard against erosion of his professional freedom." (Emphasis added.)
18
Justice WHITE's dissent states that we have gone beyond the recent decision in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1709, 64 L.Ed.2d 333 (1980). Yet nothing in that case rules out the raising of a conflict-of-interest problem that is apparent in the record. Moreover, Sullivan mandates a reversal when the trial court has failed to make an inquiry even though it "knows or reasonably should know that a particular conflict exists." Id., at 347, 100 S.Ct., at 1717.
19
Both counsel agreed that, in light of the size of the fines imposed on petitioners—relatively minor and impecunious participants in the criminal enterprises—the judge must have assumed that the employer would pay. Tr. of Oral Arg. 13, 40.
20
At one point during the discussion of Allen's case, the Solicitor, Mr. Rhodes, put it this way:
"MR. RHODES: What I'm trying to show is, Your Honor, that she in fact—that Mr. Zell [the attorney] was hired by someone else. She did not make the choice. That they sent Mr. Zell down here to represent her. And she may have acquiesced in it, but that she did not employ Mr. Zell to represent her.
"THE COURT: All right. How is that relevant to this issue?
"MR. RHODES: To what I say, there's a conflict of interest in this case.
"Mr. Zell is representing her employer, and there's two different interests there.
"They had promised this woman that they would pay her fine and they would take care of all these expenses. There's a conflict.
"Mr. Zell's, as I said, his first duty is to the persons that pay him. And that's what he's doing. He's trying to take care of them." Tr. 26-27 (emphasis added).
See also id., at 14-15.
As noted in n. 5, supra, the State raised this problem here as an argument against a grant of certiorari. The State's Brief in Opposition 4, n. 2, stated:
"During the probation revocation hearing there were several discussions between the Court, the Petitioner's [sic ] lawyer and the Solicitor concerning the fact that the Petitioner's [sic ] lawyer also represents the Plaza Theater, the theater in which Petitioners Allen and Tante were employed. The argument of the Solicitor was that the employer had agreed to pay the fines, and now was attempting to get out of paying the fines by arguing that there was no agreement, and that Petitioners were now indigents. . . ."
21
Because we are presented here only with the question of petitioners' probation revocations, we do not order more sweeping relief, such as vacating petitioners' sentences or reversing their convictions. Such actions do, however, remain within the discretion of the trial court upon appropriate motion.
There also is the possibility that this relief may be available in habeas corpus proceedings, if petitioners can show an actual conflict of interest during the trials or at the time of sentencing.
1
The following colloquy, similar to others, took place at one point in the revocation hearing:
"MR. RHODES: Your Honor, I submit that actually what we have here is a conflict of interest on Mr. Zell's part. He's representing the company and he's trying to get out of paying this money that these people expect that company to pay that money. Mr. Zell is here purporting to represent her while he legally represents a company that has promised to pay all these expenses and fines for these people. And I would ask the Court to look into that and make a determination of that, and if necessary, see that these people have Counsel to enforce that agreement between that company and these people.
"THE COURT: State that again now.
"MR. RHODES: Mr. Zell is here representing Mrs. Allen. Now, Mrs. Allen contends that that company promised to pay all this so that she wouldn't have to go through all of this.
"Now they have not done it.
"And I submit that Mr. Zell represents that company. That he is, his first allegiance is to that company, and not to Mrs. Allen.
"And that there's a conflict of interest, and that this ought to be looked into by this Court.
"THE COURT: You wish to respond?
"MR. ZELL: I don't think it makes any sense what he's saying but I will if the Court wants me to. I don't think I'm required to.
"THE COURT: I don't know whether there's anything the Court could look into. What specifically do you want the Court to look into?
"MR. RHODES: Mr. Zell is here supposedly representing Mrs. Allen. He at the same time represents the people who promised to take care of these things and to pay these fines.
"Now those people are not doing it. And they apparently have reneged on it at this point. I think if you sent these people out to the jail for a while I think they would pay it because they don't want the other employees to know that they are not taking care of these things when they come up." Transcript of Revocation Hearing (Tr.) 14-15. The transcript is an appendix to the response of respondent.
Other discussions appear in id., at 25-28.
2
Id., at 15.
3
The State's position in this regard is clear from its response to the petition for certiorari:
"In fact, Respondent believes that the Petitioners have no intention whatsoever in paying these fines, as their testimony indicates that they are of the opinion that their employers should have paid these fines. The Petitioners are thus holding the enforcement of fines as a recognized sentencing tool a hostage because of their beliefs that others should pay their fines for them. By arguing at this time that they are indigent they are using this as a shield to hide behind their responsibility to pay a fine, which they earlier agreed to pay by virtue of their silence which led the sentencing court to conclude that they were able to pay these fines." Brief in Opposition 10.
Elsewhere, the State suggested "that they be put out there in jail and start serving . . . that's the only way really I know, to enforce this sentence at this point." Tr. 74.
4
Id., at 16-20.
5
Id., at 27: "I would suggest Mr. Rhodes report this to the State Bar of Georgia and be glad at a hearing to testify if there is any impropriety and submit to any questions before the State Bar."
6
This Court's Rule 34.1(a), the plain-error rule, does not purport to authorize the Court to vacate state-court judgments on the ground of a "possible" due process or other constitutional violation which the Court, sua sponte, has discovered in the record but which was neither raised nor decided in the state courts. Where an issue has been properly raised and decided in state litigation but not raised here, Rule 34.1(a) would permit us to reach that issue though not presented by the parties. Cf. Boynton v. Virginia, 364 U.S. 454, 457, 81 S.Ct. 182, 184, 5 L.Ed.2d 206 (1960).
In Vachon v. New Hampshire, 414 U.S. 478, 94 S.Ct. 664, 38 L.Ed.2d 666 (1974), the Court relied on our "plain error" rule to reach an issue not presented in the jurisdictional statement. However, appellant there had unsuccessfully argued the issue sufficiency of the evidence—below and the issue had been addressed by the State Supreme Court. The dissent in Vachon did not contend that appellant had failed to raise the issue below; rather, it argued that although raised, the issue had not been presented to the state courts as a "federal constitutional claim." The majority, evidently, thought that it had.
7
Although petitioners' counsel admitted at oral argument that he had been paid by petitioners' employer at the time of trial, he indicated that the payments from the employer ended at the time petitioners were put on probation. Tr. 13-16.
8
Petitioners' attorney also said: "I want the court to know, and Mr. Rhodes to know that I've attempted at least was asked, to get the fines paid. And of course, you can see the result of it.
"I told the three defendants I would represent them to the best of my ability, and I've explained this to the defendants, and I would like to make an explanation to the court." Id., at 68.
Interesting also is the following exchange from the cross-examination of one of the petitioners:
"Q Did you select Mr. Zell as your attorney?
"A Yes, sir. I've known him a long time and I trust him. And he's the only lawyer I've ever had to have in my life, and yes, sir, I selected him." Id., at 42.
As far as this record reveals, none of the petitioners to this date has complained about the legal representation.
9
There is no indication in the record that the employer owned other adult establishments. If, as counsel suggested at oral argument, ownership has in fact changed hands, then it seems unlikely that the ex-employer would continue to be interested in creating and litigating a test case in a matter with which he is no longer concerned.
10
I note that petitioners argue in their response that the trial court was fully aware of their financial situation. Response for Petitioners 2. This is amply supported by the record. The Court, therefore, creates an artificial issue when it argues that counsel's conflicting loyalties may have prevented him from arguing for leniency in light of the employer's failure to pay the fines. The point was made repeatedly that these petitioners were indigent and could not themselves pay. Petitioners' attorney conceded that a defendant who has been fined and who himself could pay the fine could not hide behind the promise of another that the latter would pay. Tr. 69.
11
The fact that this motion was made and rejected indicates that a remand to the trial court to reconsider this issue is not likely to lead to a different result. It also suggests that the inadequacy of counsel suggested by the Court amounts to nothing more than his late filing of this motion, not a failure to ask for leniency.
12
Even this statement asserts more than the evidence of record supports: other than the assertions of the State's attorney in a colloquy with the judge at the revocation hearing, there is no suggestion in this record that the employer directed this litigation in any way. The fact that counsel was paid for some period by the employer does not support an inference that counsel was representing the interests of the employer rather than those of petitioners. See ABA Model Code of Professional Responsibility, DR 5-107(B) (1980).
13
In imposing an alternative sentence the State focuses on the penalty appropriate for the particular offense and structures two punishments, each tailored to meet the State's ends in responding to the offense committed. Such tailoring may consider the financial situation of the defendant, Williams v. New York, 337 U.S. 241, 246-250, 69 S.Ct. 1079, 1082-1085, 93 L.Ed. 1337 (1949), but it does so only in the context of structuring a penalty appropriate to the offense committed.
14
As the majority opinion makes clear, the fines were quite heavy, perhaps in anticipation of payment by the employer. There was no expectation that these defendants, if they performed well on probation, would serve any time in jail, let alone a long term.
| 12
|
450 U.S. 382
101 S.Ct. 1495
67 L.Ed.2d 312
John DOE and Jane Roe, appellants,v.State of DELAWARE
No. 79-5932
Supreme Court of the United States
March 9, 1981
Rehearing Denied April 27, 1981.
See 451 U.S. 964, 101 S.Ct. 2036.
PER CURIAM.
1
The appeal is dismissed for want of a properly presented federal question.
2
Justice BRENNAN, with whom Justice WHITE joins, dissenting.
3
Appellants, a half brother and sister, are the natural parents of five children who were in the custody of the Division of Social Services of the Delaware Department of Health and Social Services at the beginning of this litigation.1 After determining that the children should be put up for adoption,2 the Division filed suit pursuant to Delaware law to obtain termination of appellants' parental rights over their children. The Superior Court of Delaware ordered termination, and the Supreme Court of Delaware affirmed.3 Appellants appealed to this Court, arguing that the termination order and the Delaware statute authorizing it were unconstitutional. We noted probable jurisdiction. 445 U.S. 942, 100 S.Ct. 1336, 63 L.Ed.2d 775 (1980).
4
The Court today dismisses this appeal for want of a properly presented federal question, thereby permitting the termination order to remain in effect despite the existence of a substantial federal constitutional challenge to the Delaware statutory scheme under which the order was entered.4 Because I believe that the federal question was properly presented within the definition of that requirement in our cases, I dissent from this dismissal. Instead, I would vacate the judgment below, and remand for reconsideration in light of supervening changes in the factual circumstances and the applicable state law.
5
* Appellants challenge the constitutionality of certain portions of the former Del. Code Ann., Tit. 13, §§ 1101-1112 (1975), in effect while this litigation was pending in the state courts. These provisions established a "procedure for termination of parental rights for the purpose of adoption or, if a suitable adoption plan cannot be effected, for the purpose of providing for the care of the child by some other plan which may or may not contemplate the continued possibility of eventual adoption." § 1103. Petitions for termination of parental rights could be filed by certain specified categories of persons, including the Division. § 1104(8). Upon a finding by the Superior Court that the parents were "not fitted to continue to exercise parental rights," § 1103(4), and that termination of existing parental rights would be "in the best interests of the child," the court was required to issue an order of termination, and to transfer parental rights to another person, organization, or agency. § 1108(a). The effect of the termination order was "that all of the rights, duties, privileges and obligations recognized by law between the [parents] and the child shall forever thereafter cease to exist as fully and to all intents and purposes as if the child and the [parents] were and always had been strangers." § 1112. Either an order of termination or the consent of the natural parents was required before children in the custody of the State could be placed for adoption. §§ 907-908.
6
Appellants argue here, as they did at each stage of the litigation in the state courts, that this statutory scheme for termination of parental rights was invalid under the United States Constitution. Specifically, they contend: (1) that Del. Code Ann., Tit. 13, § 1103(4) (1975), which provides for such termination where the parent is "not fitted," is unconstitutionally vague and indefinite; (2) that a higher standard than the mere "preponderance of the evidence" is required to terminate parental rights; and (3) that substantive due process forbids termination of parental rights in the absence of a demonstration of a compelling state interest, in the form of specific findings of existing or threatened injury to the child.5 There is no doubt that appellants raised their federal constitutional claim in a timely manner in both the Superior Court6 and the Supreme Court7 of Delaware, nor that the Delaware Supreme Court explicitly considered and rejected the federal constitutional challenge.8
7
Dismissal of this appeal for want of a properly presented federal question is, therefore, unwarranted. The practice in this Court has been to dismiss an appeal taken under 28 U.S.C. § 1257(2) for want of a properly presented federal question only when the federal question was not raised at the proper juncture in the state-court proceedings or in accordance with reasonable state rules. Jones v. Florida, 419 U.S. 1081, 1083, 95 S.Ct. 671, 672, 42 L.Ed.2d 676 (1974) (BRENNAN, J., dissenting); Godchaux Co. v. Estopinal, 251 U.S. 179, 181, 40 S.Ct. 116, 117, 64 L.Ed. 213 (1919); R. Stern & E. Gressman, Supreme Court Practice 380-381 (5th ed.1978).9 See, e. g., Street v. New York, 394 U.S. 576, 581-585, 89 S.Ct. 1354, 1360-1362, 22 L.Ed.2d 572 (1969); Safeway Stores, Inc. v. Oklahoma Retail Grocers Assn., 360 U.S. 334, 342, n. 7, 79 S.Ct. 1196, 1202, 3 L.Ed.2d 1280 (1959); Raley v. Ohio, 360 U.S. 423, 434-435, 79 S.Ct. 1257, 1264-1265, 3 L.Ed.2d 1344 (1959); Bailey v. Anderson, 326 U.S. 203, 206-207, 66 S.Ct. 66, 68, 90 L.Ed. 3 (1945); Asbury Hospital v. Cass County, 326 U.S. 207, 213-214, 66 S.Ct. 61, 64-65, 90 L.Ed. 6 (1945); Charleston Federal Savings & Loan Assn. v. Alderson, 324 U.S. 182, 185-187, 65 S.Ct. 624, 627-628, 89 L.Ed. 857 (1945); Hunter Co. v. McHugh, 320 U.S. 222, 226-227, 64 S.Ct. 19, 20-21, 88 L.Ed. 5 (1943); Pennsylvania R. Co. v. Illinois Brick Co., 297 U.S. 447, 462-463, 56 S.Ct. 556, 561-562, 80 L.Ed. 796 (1936); Whitney v. California, 274 U.S. 357, 360-361, 47 S.Ct. 641, 642-643, 71 L.Ed. 1095 (1927); Live Oak Water Users' Assn. v. Railroad Comm'n, 269 U.S. 354, 357-359, 46 S.Ct. 149, 150-151, 70 L.Ed. 305 (1926); Rooker v. Fidelity Trust Co., 261 U.S. 114, 116-117, 43 S.Ct. 288, 289, 67 L.Ed. 556 (1923); Zadig v. Baldwin, 166 U.S. 485, 488, 17 S.Ct. 639, 640, 41 L.Ed. 1087 (1897); Crowell v. Randell, 10 Pet. 368, 391-392, 398, 9 L.Ed. 458 (1836); cf. Cardinale v. Louisiana, 394 U.S. 437, 438-439, 89 S.Ct. 1161, 1162-1163, 22 L.Ed.2d 398 (1969) (dismissal of writ of certiorari); Beck v. Washington, 369 U.S. 541, 549-554, 82 S.Ct. 955, 959-962, 8 L.Ed.2d 98 (1962) (same).10 If the record shows that a federal constitutional challenge to a state statute was brought to the attention of the state court "with fair precision and in due time," then "the claim is . . . regarded as having been adequately presented." New York ex rel. Bryant v. Zimmerman, 278 U.S. 63, 67, 49 S.Ct. 61, 63, 73 L.Ed. 184 (1928). Indeed, if the highest state court reaches the federal constitutional question and decides it on the merits, this Court will consider the case despite any possible failure of the litigants to raise the federal question in compliance with state procedural requirements. Charleston Federal Savings & Loan Assn. v. Alderson, supra, at 185-186, 65 S.Ct., at 627; Louisville & Nashville R. Co. v. Higdon, 234 U.S. 592, 598, 34 S.Ct. 948, 950, 58 L.Ed. 1484 (1914); see Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 476, 95 S.Ct. 1029, 1036, 43 L.Ed.2d 328 (1975).
8
Since appellants challenged the constitutionality of the Delaware statutory scheme at each stage of the state-court litigation, and the Delaware Supreme Court expressly addressed the issue, ruling that the termination-of-parental-rights procedure was constitutional, this Court's dismissal of the appeal for want of a properly presented federal question is unprecedented and inexplicable.11
II
9
The living situation of appellants and their children has changed dramatically since the trial court proceedings in this case. Doe and Roe have ceased to live together, thus ending the incestuous relationship that formed the predicate for the Superior Court's original judgment of unfitness. See App. to Juris. Statement 5b. According to their attorney, Doe now resides in another State, while Roe has married and now lives with her husband and his child in Delaware. Tr. of Oral Arg. 4. Doe and Roe have not seen their five children since 1975.12 The children, who ranged in age from 11 months to 4 years old when the Superior Court issued its first order of termination in 1975, are now about 6 to 9 years old. The children have never lived together as a family, and are now in four separate placements. Appellants' attorney stated at oral argument that "the eventual goal of the mother" is to obtain custody of her children, and that she would permit the father to visit them. Id., at 3. There is no evidence on any of these matters in the record because it has been closed since December 1976. Id., at 39.
10
Moreover, Del. Code Ann., Tit. 13, § 1103 (1975), was amended, effective July 11, 1980, to alter the standard for termination of parental rights. Instead of requiring a finding of "unfitness" as a predicate for termination, the new statute provides for termination if the parents "are not able, or have failed, to plan adequately for the child's physical needs or his mental and emotional health and development" and:
11
"a. In the case of a child in the care of an authorized agency:
12
"1. The child has been in the care of an authorized agency for 1 year, or there is a history of previous placement or placements of this child, or a history of neglect, abuse, or lack of care of other children by this parent; and
13
"2. The conditions which led to the child's placement still persist, and there appears to be little likelihood that those conditions will be remedied at an early date so that the child can be returned to the parent in the near future.
14
"b. In the case of a child in the home of the stepparent or blood relative:
15
"1. The child has resided in the home of the stepparent or blood relative for a period of at least 1 year; and
16
"2. The Court finds the noncustodial parent or parents incapable of exercising parental responsibilities, and that there appears to be little likelihood such parent or parents will be able to exercise such parental responsibilities in the foreseeable future." Del. Code Ann., Tit. 13, § 1103(5) (Supp.1980).13
17
As stated in Bell v. Maryland, 378 U.S. 226, 237, 84 S.Ct. 1814, 1820, 12 L.Ed.2d 822 (1964), this Court has "long followed a uniform practice where a supervening event raises a question of state law pertaining to a case pending on review here. That practice is to vacate and reverse the judgment and remand the case to the state court, so that it may reconsider it in the light of the supervening change in state law." In the exercise of our jurisdiction under 28 U.S.C. § 1257, this Court has the power "not only to correct error in the judgment under review but to make such disposition of the case as justice requires." Patterson v. Alabama, 294 U.S. 600, 607, 55 S.Ct. 575, 578, 79 L.Ed. 1082 (1935). And, as Chief Justice Hughes further observed in Patterson : "[I]n determining what justice does require, the Court is bound to consider any change, either in fact or in law, which has supervened since the judgment was entered. We may recognize such a change, which may affect the result, by setting aside the judgment and remanding the case so that the state court may be free to act." Ibid. See Giles v. Maryland, 386 U.S. 66, 80, 87 S.Ct. 793, 800, 17 L.Ed.2d 737 (1967) (plurality opinion); Thorpe v. Housing Authority, 386 U.S. 670, 673-674, 87 S.Ct. 1244, 1246, 18 L.Ed.2d 394 (1967); Trunkline Gas Co. v. Hardin County, 375 U.S. 8, 84 S.Ct. 49, 11 L.Ed.2d 38 (1963); Wolfe v. North Carolina, 364 U.S. 177, 195, n. 13, 80 S.Ct. 1482, 1492, 4 L.Ed.2d 1650 (1960); Williams v. Georgia, 349 U.S. 375, 389-391, 75 S.Ct. 814, 822-824, 99 L.Ed. 1161 (1955); State Farm Mutual Automobile Ins. Co. v. Duel, 324 U.S. 154, 161, 65 S.Ct. 573, 577, 89 L.Ed. 812 (1945); Ashcraft v. Tennessee, 322 U.S. 143, 155-156, 64 S.Ct. 921, 927, 88 L.Ed. 1192 (1944); Walling v. James V. Reuter, Inc., 321 U.S. 671, 676-677, 64 S.Ct. 826, 828-829, 88 L.Ed. 1001 (1944); New York ex rel. Whitman v. Wilson, 318 U.S. 688, 690-691, 63 S.Ct. 840, 841, 87 L.Ed. 1083 (1943); Vandenbark v. Owens-Illinois Glass Co., 311 U.S. 538, 542, 61 S.Ct. 347, 349, 85 L.Ed. 327 (1941); State Tax Comm'n v. Van Cott, 306 U.S. 511, 515-516, 59 S.Ct. 605, 607, 83 L.Ed. 950 (1939); Honeyman v. Hanan, 300 U.S. 14, 25-26, 57 S.Ct. 350, 355, 81 L.Ed. 476 (1937); Villa v. Van Schaick, 299 U.S. 152, 155, 57 S.Ct. 128, 129, 81 L.Ed. 91 (1936); Pagel v. MacLean, 283 U.S. 266, 268-269, 51 S.Ct. 416, 417-418, 75 L.Ed. 1023 (1931); Missouri ex rel. Wabash R. Co. v. Public Service Comm'n, 273 U.S. 126, 130-131, 47 S.Ct. 311, 313, 71 L.Ed. 575 (1927); Dorchy v. Kansas, 264 U.S. 286, 289, 291, 44 S.Ct. 323, 324, 325, 68 L.Ed. 686 (1924); Gulf, C. & S. F. R. Co. v. Dennis, 224 U.S. 503, 505-507, 509, 32 S.Ct. 542, 543, 544, 56 L.Ed. 860 (1912); see also Piccirillo v. New York, 400 U.S. 548, 556, n. 2, 91 S.Ct. 520, 524, 27 L.Ed.2d 596 (1971) (BRENNAN, J., dissenting from dismissal of writ of certiorari).14
18
The instant case falls squarely within the principle of Bell and Patterson. The change in the factual circumstances and in the applicable state statute might well produce a different result under Delaware law. This Court should not decide what effect these changes might have under state law,15 or how the Supreme Court of Delaware might decide this case under the new circumstances and amended statute.16 See Bell v. Maryland, 378 U.S., at 237, 84 S.Ct., at 1820. Nor, however, should we "ignore the supervening change in state law and proceed to decide the federal constitutional questions presented by this case. To do so would be to decide questions which, because of the possibility that the state court would now reverse the [order of termination], are not necessarily presented for decision." Ibid.; see id., at 241, 84 S.Ct., at 1823; Missouri ex rel. Wabash R. Co. v. Public Service Comm'n, supra, at 131, 47 S.Ct., at 313; Gulf, C. & S. F. R. Co. v. Dennis, supra, at 507, 32 S.Ct., at 543.
III
19
To argue that the proper disposition of this case is to vacate and remand rather than to dismiss for want of a properly presented federal question is not merely to quibble over words. Appellants in this case are parents who have been irrevocably separated from their children by process of a state law they contend is unconstitutional. To vacate and remand is to recognize that supervening events have made further state-court proceedings necessary before this Court can reach the constitutional questions; to dismiss is to end the litigation, leaving Doe and Roe without any means to vindicate their parental rights.17 See Pagel v. MacLean, 283 U.S., at 269, 51 S.Ct., at 418; Gulf, C. & S. F. R. Co. v. Dennis, 224 U.S., at 509, 32 S.Ct., at 544.
20
The appellate jurisdiction of this Court is not discretionary. Hicks v. Miranda, 422 U.S. 332, 344, 95 S.Ct. 2281, 2289, 45 L.Ed.2d 223 (1975). Having raised a federal constitutional challenge to the former Del. Code Ann., Tit. 13, § 1103(4) (1975), under which their parental rights were terminated, and having received a final judgment from the highest court of the State upholding the statute and affirming the termination order, appellants have a right to appellate review. I can discern no basis for dismissing this appeal for want of a properly presented federal question, and therefore respectfully dissent.
21
Justice STEVENS, dissenting.
22
The wisdom of the Court's policy of avoiding the premature or unnecessary adjudication of constitutional questions is well established. See Rescue Army v. Municipal Court of Los Angeles, 331 U.S. 549, 568-575, 67 S.Ct. 1409, 1419-1423, 91 L.Ed. 1666. That policy provides some support for the Court's otherwise inexplicable conclusion that the three federal questions raised by this appeal are somehow not "properly presented."1 That policy also would provide some support for Justice BRENNAN'S view that this case should be remanded to the Delaware courts for further proceedings before this Court addresses any of the federal issues. In my opinion, however, both the Court's disposition and Justice BRENNAN'S proposed disposition are inadequately supported by that policy because adjudication of one of the federal questions presented in this case would be neither premature nor unnecessary.
23
To explain my position, I shall focus on the question whether the Due Process Clause of the Fourteenth Amendment requires that the termination of parental rights be supported by a higher standard of proof than a mere preponderance of the evidence.2 For the reasons stated by the Court in in Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323, that question is undeniably substantial. For the reasons stated by Justice BRENNAN, ante, at 384-387, there is no procedural defect in the record that provides a legitimate basis for the Court's conclusion that the question is not "properly presented" in this case. In my opinion, the Court has the duty to decide that question now because there is no reason to believe that delay will effect either the character of the question or the necessity of deciding it in this case. Unlike Justice BRENNAN, I believe that neither the change in the status of the appellants nor the change in the Delaware statute justifies a remand for further state-court proceedings without first deciding whether the Federal Constitution requires that an order terminating parental rights be supported by clear and convincing evidence.
24
Neither in the Supreme Court of Delaware nor in this Court have appellants argued that the change in their living situation subsequent to the entry of the termination order is a sufficient basis for setting aside that order.3 Of course, if there is an independent basis for vacating the order—or if the state court decided to rely on postjudgment events to set aside its own decision—a new proceeding to determine the welfare of appellants' children undoubtedly should consider recent, as well as ancient, history. I do not believe, however, that such recent events—which are unrelated to the federal questions that support our appellate jurisdiction—provide an appropriate basis for this Court to exercise its power to vacate the judgment of the Delaware Supreme Court.
25
Nor, in my opinion, does the enactment of the new Delaware statute make it appropriate for us to vacate the judgment of the Delaware Supreme Court. This is not a case like Bell v. Maryland, 378 U.S. 226, 84 S.Ct. 1814, 12 L.Ed.2d 822, in which the State has made lawful the conduct that formed the basis of a criminal conviction pending on appeal,4 or otherwise has taken action that significantly changed the federal question presented by an appeal to this Court. None of the parties and none of the many amici curiae suggest that the new Delaware statute has changed the standard of proof required by Delaware law.5 If it was unconstitutional to apply the preponderance-of-the-evidence standard at the 1972 termination proceeding, it would be equally unconstitutional to apply that standard at a new proceeding held under the revised statute. Because the constitutionality of applying that standard in a case of this kind is now squarely at issue, I believe we have the power and the obligation to resolve this federal question before any further proceedings are conducted.
26
As the Court stated in Patterson v. Alabama, 294 U.S. 600, 607, 55 S.Ct. 575, 578, 79 L.Ed. 1082, we have the power "not only to correct error in the judgment under review but to make such disposition of the case as justice requires." See BRENNAN, J., dissenting, ante, at 389. In my judgment, justice requires that we promptly resolve the critical federal question properly presented in this case, because this litigation involves the family status of growing children6 and because this federal question is certain to reappear before us in the same form at a later date. Accordingly, I would decide the standard-of-proof question and thereafter either remand to the Delaware Supreme Court for consideration of the two remaining questions in light of the new statute or remand for a new trial under the correct standard of proof, depending upon how that question is resolved by a majority of the Members of this Court.
27
I respectfully dissent.
1
This Court granted appellants' motion to seal the record, 445 U.S. 949, 100 S.Ct. 1595, 63 L.Ed.2d 783 (1980), and the pseudonyms John Doe and Jane Roe have been substituted for appellants' real names.
2
See Tr. of Oral Arg. 35. The Division has apparently not made any formal arrangements for adoptive homes for the children. See Del.Code Ann., Tit. 13, §§ 907-908 (1975) (making termination of the parental rights of the natural parents a prerequisite to adoption in the absence of the consent of the natural parents).
3
The order of termination issued orally by the Superior Court on September 12, 1975, App. to Juris. Statement 5b, was initially reversed by the Delaware Supreme Court for failure to decide whether termination of parental rights was in the best interests of the children, as required by Del.Code Ann., Tit. 13, § 1108 (1975). App. to Juris. Statement 1c. On remand, the Superior Court concluded that Doe and Roe "are incapable of providing proper care for their children," and that "it is in the best interests of the children that their parental rights of the children be terminated." Id., at 3d. The Delaware Supreme Court affirmed. In re Five Minor Children, 407 A.2d 198 (1979).
4
The Court apparently does not question the substantiality of the federal question presented by this appeal, since it is dismissing the appeal "for want of a properly presented federal question" rather than "for want of [a] substantial federal question," e. g., Black v. Payne, 438 U.S. 909, 98 S.Ct. 3132, 57 L.Ed.2d 1153 (1978), or "for want of a properly presented substantial federal question," e. g., Greenwald v. Maryland, 363 U.S. 721, 80 S.Ct. 1599, 4 L.Ed.2d 1521 (1960).
5
Appellants' first argument "draw[s] in question the validity of a statute of [a] state on the ground of its being repugnant to the Constitution . . . of the United States," and is therefore within this Court's appellate jurisdiction. 28 U.S.C. § 1257(2). We may therefore assume jurisdiction to decide the second and third issues in the case as well. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 487, n. 14, 95 S.Ct. 1029, 1042, 43 L.Ed.2d 328 (1975); Prudential Ins. Co. v. Cheek, 259 U.S. 530, 547, 42 S.Ct. 516, 523, 66 L.Ed. 1044 (1922).
6
App. to Juris. Statement 2i-6i, 8i.
7
Opening Brief for Appellants in No. 259 (Del.Sup.Ct.) 2, 8-36; Reply Brief for Appellants in No. 259 (Del.Sup.Ct.) 1-21.
8
407 A.2d, at 199-200.
9
In Pearson v. Dodd, 429 U.S. 396, 97 S.Ct. 581, 50 L.Ed.2d 574 (1977), an appeal from the Supreme Court of Appeals of West Virginia was dismissed "for want of a properly presented federal question." Id., at 398, 97 S.Ct., at 582. A reading of the per curiam opinion in Pearson reveals, however, that the dismissal should have been styled "for want of a substantial federal question," for the Court determined that the appellant had "no constitutionally protected property or entitlement interest" upon which to base her claim. Ibid.
10
Dismissal for want of a properly presented federal question is distinguishable from dismissal because of the inadequacy of the record for deciding the question presented, e. g., Cowgill v. California, 396 U.S. 371, 372, 90 S.Ct. 613, 614, 24 L.Ed.2d 590 (1970) (Harlan, J., concurring); Mitchell v. Oregon Frozen Foods Co., 361 U.S. 231, 80 S.Ct. 365, 4 L.Ed.2d 267 (1960) (dismissal of writ of certiorari); but cf. Villa v. Van Schaick, 299 U.S. 152, 155-156, 57 S.Ct. 128, 129, 81 L.Ed. 91 (1936) (judgment on appeal vacated and remanded because of the inadequacy of the record), and from dismissal because problems of construction and interpretation of state law preclude addressing the constitutional issues "in clean-cut and concrete form," e. g., Rescue Army v. Municipal Court, 331 U.S. 549, 584, 67 S.Ct. 1409, 91 L.Ed. 1666 (1947). In the instant case, since appellants' challenge to the Delaware termination-of-parental-rights statutes does not depend on the specific facts of the case, and since the Supreme Court of Delaware has resolved the questions of statutory interpretation relevant to this appeal, dismissal on the latter grounds would not be appropriate.
11
Naim v. Naim, 350 U.S. 985, 76 S.Ct. 472, 100 L.Ed. 852 (1956), is not to the contrary. In Naim, we dismissed the appeal for want of a properly presented federal question. In an earlier appeal in the same case, 350 U.S. 891, 76 S.Ct. 151, 100 L.Ed. 784 (1955), we vacated the judgment of the Supreme Court of Appeals of Virginia, and remanded for further proceedings. Our order explained:
"The inadequacy of the record as to the relationship of the parties to the Commonwealth of Virginia at the time of the marriage in North Carolina and upon their return to Virginia, and the failure of the parties to bring here all questions relevant to the disposition of the case, prevents the constitutional issue of the validity of the Virginia statute on miscegenation tendered here being considered 'in clean-cut and concrete form, unclouded' by such problems. Rescue Army v. Municipal Court, 331 U.S. 549, 584 [67 S.Ct. 1409, 1427, 91 L.Ed. 1666]." Ibid.
On remand, the Supreme Court of Appeals of Virginia adhered to its decision, and noted that the record reflected the relation of the parties to the Commonwealth both before and after the marriage. Naim v. Naim, 197 Va. 734, 735, 90 S.E.2d 849, 850 (1956). This Court's subsequent dismissal of the appeal from that decision for want of a properly presented federal question is best understood, therefore, as attributable to "the failure of the parties to bring here all questions relevant to the disposition of the case." 350 U.S., at 891, 76 S.Ct., at 151. In the instant case, there is no such failure.
12
Appellants state that the reason they have not seen their children since 1975 is that the Division did not permit them to visit. Brief for Appellants 10, n. 17. The record does not reflect, however, when or how often appellants attempted to see their children.
13
In order to require termination of parental rights, the Court must also make a "best interests of the child" determination as required by Del.Code Ann., Tit. 13, § 1108 (1975), which was not affected by the 1980 amendments.
14
In Sanks v. Georgia, 401 U.S. 144, 91 S.Ct. 593, 27 L.Ed.2d 741 (1971), this Court dismissed an appeal from the Supreme Court of Georgia after both the factual circumstances of the case and the applicable state law had so changed that the "focus of [the] lawsuit [had] been completely blurred, if not altogether obliterated, and our judgment on the important issues involved [had become] potentially immaterial." Id., at 152, 91 S.Ct., at 598. The effect of dismissing in Sanks, however, was identical to vacating and remanding, because the appeal was from an interlocutory order, and the appellants were able to raise both state and federal claims, based on the altered circumstances and law, on remand. Id., at 148-150, 91 S.Ct., at 596-597. Moreover, it was doubtful that the federal constitutional question in Sanks continued to present a justiciable controversy sufficient to support Supreme Court jurisdiction in light of the changed circumstances. Dismissal was therefore an appropriate disposition. To similar effect is United States v. Fruehauf, 365 U.S. 146, 81 S.Ct. 547, 5 L.Ed.2d 476 (1961).
15
That this Court has the power to decide for itself what effect the changes would have on the outcome of this case is not doubted. See Missouri ex rel. Wabash R. Co. v. Public Service Comm'n, 273 U.S. 126, 131, 47 S.Ct. 311, 313, 71 L.Ed. 575 (1927); Steamship Co. v. Joliffe, 2 Wall. 450, 455-459, 17 L.Ed. 805 (1865). We have recognized, however, that the exercise of this power is at times "inconsistent with our tradition of deference to state courts on questions of state law." Bell v. Maryland, 378 U.S. 226, 237, 84 S.Ct. 1814, 1820, 12 L.Ed.2d 822 (1964). To avoid this "pitfal[l]," we have adopted a policy of vacating and remanding the judgment where the effect of supervening events presents a question of state law. Ibid.
16
Appellants did not seek a remand in state court based on the changed factual circumstances. Tr. of Oral Arg. 12-14.
17
I express no opinion on whether appellants would be eligible for relief under Rule 60 of the Rules of Civil Procedure for the Superior Court of Delaware, which permits the Superior Court to "relieve a party . . . from a final judgment, order, or proceeding for . . . any . . . reason justifying relief from the operation of the judgment."
Nor do I mean to imply that the State, as custodian of the children, is without countervailing interest in obtaining a prompt resolution of this controversy. Until the order of termination is made final, the children may not be placed for adoption. Del.Code Ann., Tit. 13, §§ 907, 908 (1975). As this Court recognized in Smith v. Organization of Foster Families, 431 U.S. 816, 833-838, 97 S.Ct. 2094, 2103-2106, 53 L.Ed.2d 14 (1977), the "limbo" in which children remain between leaving the care of their natural parents and entering the care of permanent adoptive parents may have deleterious consequences for them.
1
Appellants raise three constitutional objections to the termination order entered against them. See BRENNAN, J., dissenting, ante, at 384-385. In their brief on the merits, appellants argue the following questions:
"1. Is the Delaware statute, which provides for the permanent termination of the parent-child relationship where the parent is 'not fitted,' unconstitutionally vague and indefinite in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution?
"2. In light of the protected nature of the family relationship under decisions of this Court, does the Due Process Clause and this Court's decision in Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979), preclude the termination of the parent-child relationship based upon a mere 'preponderance of the evidence'?
"3. Under the Due Process Clause, must the state demonstrate a compelling state interest, by making specific findings of existing or threatened harm to the child, before terminating the parent-child relationship?" Brief for Appellants 3.
See also Juris. Statement 2-3.
2
If the standard-of-proof issue were not presented, I would agree with Justice BRENNAN's proposed disposition. Because the substance of the unfitness standard has been revised in the new statute, see ante, at 388-389, the other two questions raised by appellants should be remanded to the Delaware Supreme Court for consideration in light of the new statute, after a decision by this Court on the merits of the standard-of-proof question. The new statutory language would clearly be relevant to these questions if, as a matter of state law, the new statute is applicable in this termination proceeding.
3
Appellants did not seek a remand in the Delaware Supreme Court based upon the change in their status. See BRENNAN, J., dissenting, ante, at 391, n. 16. That court was informed of the changed circumstances, see App. to Juris. Statement 5a; Tr. of Oral Arg. 11-14, 29-30, but it apparently concluded that the new circumstances did not warrant a remand to the trial court in the absence of a request by one of the parties. In their opening brief in this Court, appellants do not even mention that the factual circumstances have changed, and in their reply brief they allude to their present status only in the vaguest of terms. It was only at oral argument that appellants' counsel squarely addressed the details of their present living situation.
4
As the Court noted in Bell :
"Petitioners' convictions were affirmed by the Maryland Court of Appeals on January 9, 1962. Since that date, Maryland has enacted laws that abolish the crime of which petitioners were convicted." 378 U.S., at 228, 84 S.Ct., at 1816.
In addition, it is not at all clear that the Delaware courts would regard the enactment of the new statute as a reason to modify or vacate the termination order entered against appellants. In Bell, the Court emphasized the fact that under Maryland law the supervening change in the governing criminal statute probably would result in reversal of the petitioners' convictions by the state courts. See id., at 230-237, 84 S.Ct., at 1817-1821. In this case, we do not know what effect, if any, the new statute is likely to have on termination proceedings initiated and substantially completed prior to its enactment. The State of Delaware, in its brief in this Court, has not suggested that the new statute has any bearing, as a matter of state law, on this litigation.
5
Both the original and the revised statutes are silent with respect to the standard of proof applicable in termination proceedings. The Delaware Supreme Court, in its consideration of the standard-of-proof issue in this case, did not rely upon any specific language of the termination statute, but rather based its conclusion primarily upon the civil, nonpenal nature of termination proceedings in Delaware. See App. to Juris. Statement 9a-11a; In re Five Minor Children, 407 A.2d 198, 200 (Del.1979). Nothing on the face of the new statute suggests that it will be interpreted to change the civil nature of Delaware termination proceedings. Thus, even if the new statute would be applicable in this case as a matter of state law, the federal constitutional question would remain the same.
6
The initial termination order was entered in 1975. Appellants have not seen their five children, now ranging in age from 6 to 9 years old, since that time. The children are presently in four separate foster homes, and apparently have never lived together as a family. Because of the pendency of this proceeding, the children have been separated from each other and from their natural parents, and also have been ineligible for adoption because of the statutory requirement that the rights of the natural parents be finally terminated before adoption can take place without their consent. See Del.Code Ann., Tit. 13, §§ 907-908 (1975). Further delay in a proceeding of this nature may well frustrate whatever hope remains that these children will ever be able to enjoy the benefits of a secure and permanent family environment.
| 89
|
450 U.S. 333
101 S.Ct. 1137
67 L.Ed.2d 275
Thomas J. ALBERNAZ and Edward Rodriguez, Petitioners,v.UNITED STATES.
No. 79-1709.
Argued Jan. 19, 1981.
Decided March 9, 1981.
Syllabus
Petitioners, who were involved in an agreement to import marihuana and then to distribute it domestically, were convicted on separate counts of conspiracy to import marihuana, in violation of 21 U.S.C. § 963, and conspiracy to distribute marihuana, in violation of 21 U.S.C. § 846. These statutes are parts of different subchapters of the Comprehensive Drug Abuse Prevention and Control Act of 1970. Petitioners received consecutive sentences on each count, the length of each of their combined sentences exceeding the maximum which could have been imposed either for a conviction of conspiracy to import or for a conviction of conspiracy to distribute. The Court of Appeals affirmed the convictions and sentences.
Held:
1. Congress intended to permit the imposition of consecutive sentences for violations of §§ 846 and 963 even though such violations arose from a single agreement or conspiracy having dual objectives. Pp. 336-343.
(a) In determining whether Congress intended to authorize cumulative punishments, the applicable rule, announced in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, is that "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." The statutory provisions involved here specify different ends as the proscribed object of the conspiracy "distribution" and "importation"—and clearly satisfy the Blockburger test. Each provision requires proof of a fact that the other does not, and thus §§ 846 and 963 proscribe separate statutory offenses the violations of which can result in the imposition of consecutive sentences. Braverman v. United States, 317 U.S. 49, 63 S.Ct. 99, 87 L.Ed. 23 distinguished. Pp. 337-340.
(b) While the Blockburger test is not controlling where there is a clear indication of contrary legislative intent, if anything is to be assumed from the legislative history's silence on the question whether consecutive sentences can be imposed for a conspiracy to import and distribute drugs, it is that Congress was aware of the Blockburger rule and legislated with it in mind. And the rule of lenity has no application in this case, since there is no statutory ambiguity. Pp. 340-343.
2. The imposition of consecutive sentences for petitioners' violations of §§ 846 and 963 does not violate the Double Jeopardy Clause of the Fifth Amendment. In determining whether punishments imposed after a conviction are unconstitutionally multiple, the dispositive question is whether Congress intended to authorize separate punishments for the crimes. Where Congress intended, as it did here, to impose multiple punishments, imposition of such sentences does not violate the Constitution. Pp. 343-344.
5th Cir., 612 F.2d 906, affirmed.
Judith H. Mizner, Boston, Mass., for petitioners.
Mark I. Levy, Washington, D. C., for respondent.
Justice REHNQUIST delivered the opinion of the Court.
1
Petitioners were convicted of conspiracy to import marihuana (Count I), in violation of 21 U.S.C. § 963, and conspiracy to distribute marihuana (Count II), in violation of 21 U.S.C. § 846. Petitioners received consecutive sentences on each count. The United States Court of Appeals for the Fifth Circuit, sitting en banc, affirmed petitioners' convictions and sentences. United States v. Rodriguez, 612 F.2d 906 (1980). We granted certiorari to consider whether Congress intended consecutive sentences to be imposed for the violation of these two conspiracy statutes and, if so, whether such cumulative punishment violates the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution. 449 U.S. 818, 101 S.Ct. 69, 66 L.Ed.2d 20 (1980).
2
The facts forming the basis of petitioners' convictions are set forth in the panel opinion of the Court of Appeals, United States v. Rodriguez, 585 F.2d 1234, (5th Cir., 1978), and need not be repeated in detail here. For our purposes, we need only relate that the petitioners were involved in an agreement, the objectives of which were to import marihuana and then to distribute it domestically. Petitioners were charged and convicted under two separate statutory provisions and received consecutive sentences. The length of each of their combined sentences exceeded the maximum 5-year sentence which could have been imposed either for a conviction of conspiracy to import or for a conviction of conspiracy to distribute.
3
The statutes involved in this case are part of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 84 Stat. 1236, 21 U.S.C. § 801 et seq. Section 846 is in Subchapter I of the Act and provides:
4
"Any person who attempts or conspires to commit any offense defined in this subchapter is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy."
5
This provision proscribes conspiracy to commit any offense defined in Subchapter I, including conspiracy to distribute marihuana which is specifically prohibited in 21 U.S.C. § 841(a)(1). Section 846 authorizes imposition of a sentence of imprisonment or a fine that does not exceed the penalty specified for the object offense.
6
Section 963, which is part of Subchapter II of the Act, contains a provision identical to § 846 and proscribes conspiracy to commit any offense defined in Subchapter II, including conspiracy to import marihuana which is specifically prohibited by 21 U.S.C. § 960(a)(1). As in § 846, § 963 authorizes a sentence of imprisonment or a fine that does not exceed the penalties specified for the object offense. Thus, a conspiratorial agreement which envisages both the importation and distribution of marihuana violates both statutory provisions, each of which authorizes a separate punishment.
7
Petitioners do not dispute that their conspiracy to import and distribute marihuana violated both § 846 and § 963. Rather, petitioners contend it is not clear whether Congress intended to authorize multiple punishment for violation of these two statutes in a case involving only a single agreement or conspiracy, even though that isolated agreement had dual objectives. Petitioners argue that because Congress has not spoken with the clarity required for this Court to find an "unambiguous intent to impose multiple punishment," we should invoke the rule of lenity and hold that the statutory ambiguity on this issue prevents the imposition of multiple punishment. Petitioners further contend that even if cumulative punishment was authorized by Congress, such punishment is barred by the Double Jeopardy Clause of the Fifth Amendment.
8
In resolving petitioners' initial contention that Congress did not intend to authorize multiple punishment for violations of §§ 846 and 963, our starting point must be the language of the statutes. Absent a "clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive." Consumers Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980). Here, we confront separate offenses with separate penalty provisions that are contained in distinct Subchapters of the Act. The provisions are unambiguous on their face and each authorizes punishment for a violation of its terms. Petitioners contend, however, that the question presented is not whether the statutes are facially ambiguous, but whether consecutive sentences may be imposed when convictions under those statutes arise from participation in a single conspiracy with multiple objectives—a question raised, rather than resolved, by the existence of both provisions.
9
The answer to petitioners' contention is found, we believe, in application of the rule announced by this Court in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), and most recently applied last Term in Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980). In Whalen, the Court explained that the "rule of statutory construction" stated in Blockburger is to be used "to determine whether Congress has in a given situation provided that two statutory offenses may be punished cumulatively." 445 U.S., at 691, 100 S.Ct., at 1437. The Court then referenced the following test set forth in Blockburger:
10
"The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Blockburger v. United States, supra, 284 U.S., at 304, 52 S.Ct., at 182.
11
Our decision in Whalen was not the first time this Court has looked to the Blockburger rule to determine whether Congress intended that two statutory offenses be punished cumulatively. We previously stated in Brown v. Ohio, 432 U.S. 161, 166, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977), although our analysis there was of necessity based on a claim of double jeopardy since the case came to us from a state court, that "[t]he established test for determining whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment was stated in Blockburger v. United States. . . ." Similarly, in Iannelli v. United States, 420 U.S. 770, 785, n. 17, 95 S.Ct. 1284, 1293, n. 17, 43 L.Ed.2d 616 (1975), we explained:
12
"The test articulated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), serves a generally similar function of identifying congressional intent to impose separate sanctions for multiple offenses arising in the course of a single act or transaction. In determining whether separate punishment might be imposed, Blockburger requires that courts examine the offenses to ascertain 'whether each provision requires proof of a fact which the other does not.' Id., at 304, 52 S.Ct., at 182. As Blockburger and other decisions applying its principle reveal . . . the Court's application of the test focuses on the statutory elements of the offense. If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes."
13
In Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958), the Court rejected the opportunity to abandon Blockburger as the test to apply in determining whether Congress intended to impose multiple punishment for a single act which violates several statutory provisions. In reaffirming Blockburger, the Court explained:
14
"The fact that an offender violates by a single transaction several regulatory controls devised by Congress as means for dealing with a social evil as deleterious as it is difficult to combat does not make the several different regulatory controls single and identic." 357 U.S., at 389, 78 S.Ct., at 1282.
15
Finally, in American Tobacco Co. v. United States, 328 U.S. 781, 66 S.Ct. 1125, 90 L.Ed. 1575 (1946), defendants who had been convicted of conspiracy in restraint of trade in violation of § 1 of the Sherman Act (15 U.S.C. § 1), and conspiracy to monopolize in violation of § 2 (15 U.S.C. § 2), sought review of their convictions contending that separate sentences for these offenses were impermissible because there was "but one conspiracy, namely, a conspiracy to fix prices." 328 U.S., at 788, 66 S.Ct., at 1128. In rejecting this claim, the Court noted the presence of separate statutory offenses and then, relying on Blockburger, upheld the sentences on the ground that "§§ 1 and 2 of the Sherman Act require proof of conspiracies which are reciprocally distinguishable from and independent of each other although the objects of the conspiracies may partially overlap." 328 U.S., at 788, 66 S.Ct., at 1129.
16
The statutory provisions at issue here clearly satisfy the rule announced in Blockburger and petitioners do not seriously contend otherwise. Sections 846 and 963 specify different ends as the proscribed object of the conspiracy—distribution as opposed to importation—and it is beyond peradventure that "each provision requires proof of a fact [that] the other does not." Thus, application of the Blockburger rule to determine whether Congress has provided that these two statutory offenses be punished cumulatively results in the unequivocal determination that §§ 846 and 963, like §§ 1 and 2 of the Sherman Act which were at issue in American Tobacco, proscribe separate statutory offenses the violations of which can result in the imposition of consecutive sentences.
17
Our conclusion in this regard is not inconsistent with our earlier decision in Braverman v. United States, 317 U.S. 49, 63 S.Ct. 99, 87 L.Ed. 23 (1942), on which petitioners rely so heavily. Petitioners argue that Blockburger cannot be used for divining legislative intent when the statutes at issue are conspiracy statutes. Quoting Braverman, they argue that whether the objective of a single agreement is to commit one or many crimes, it is in either case the agreement which constitutes the conspiracy which the statute punishes. "The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one." 317 U.S., at 53, 63 S.Ct., at 101. Braverman, however, does not support petitioners' position. Unlike the instant case or this Court's later decision in American Tobacco, the conspiratorial agreement in Braverman, although it had many objectives, violated but a single statute. The Braverman Court specifically noted:
18
"Since the single continuing agreement, which is the conspiracy here, thus embraces its criminal objects, it differs from successive acts which violate a single penal statute and from a single act which violates two statutes. See Blockburger v. United States, 284 U.S. 299, 301-[30]4, 52 S.Ct. 180, 181-182, 76 L.Ed. 306; Albrecht v. United States, 273 U.S. 1, 11-12, 47 S.Ct. 250, 253-254, 71 L.Ed. 505. The single agreement is the prohibited conspiracy, and however diverse its objects it violates but a single statute, § 37 of the Criminal Code. For such a violation, only the single penalty prescribed by the statute can be imposed." 317 U.S., at 54, 63 S.Ct., at 102. (emphasis added).
19
Later in American Tobacco, the Court distinguished Braverman:
20
"In contrast to the single conspiracy described in [Braverman ] in separate counts, all charged under the general conspiracy statute, . . . we have here separate statutory offenses, one a conspiracy in restraint of trade that may stop short of monopoly, and the other a conspiracy to monopolize that may not be content with restraint short of monopoly. One is made criminal by § 1 and the other by § 2 of the Sherman Act." 328 U.S., at 788, 66 S.Ct., at 1128.
21
See also Pinkerton v. United States, 328 U.S. 640, 642-643, 66 S.Ct. 1180, 1181, 90 L.Ed. 1489 (1946).
22
The Blockburger test is a "rule of statutory construction," and because it serves as a means of discerning congressional purpose the rule should not be controlling where, for example, there is a clear indication of contrary legislative intent. Nothing, however, in the legislative history which has been brought to our attention discloses an intent contrary to the presumption which should be accorded to these statutes after application of the Blockburger test. In fact, the legislative history is silent on the question of whether consecutive sentences can be imposed for conspiracy to import and distribute drugs. Petitioners read this silence as an "ambiguity" over whether Congress intended to authorize multiple punishment.1 Petitioners, however, read much into nothing. Congress cannot be expected to specifically address each issue of statutory construction which may arise. But, as we have previously noted, Congress is "predominantly a lawyer's body," Callanan v. United States, 364 U.S. 587, 594, 81 S.Ct. 321, 325, 5 L.Ed.2d 312 (1961), and it is appropriate for us "to assume that our elected representatives . . . know the law." Cannon v. University of Chicago, 441 U.S. 677, 696-697, 99 S.Ct. 1946, 1957-1958, 60 L.Ed.2d 560 (1979). As a result, if anything is to be assumed from the congressional silence on this point, it is that Congress was aware of the Blockburger rule and legislated with it in mind. It is not a function of this Court to presume that "Congress was unaware of what it accomplished. . . ." Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 179, 101 S.Ct. 453, 461, 66 L.Ed.2d 368 (1980).2
23
Finally, petitioners contend that because the legislative history is "ambiguous" on the question of multiple punishment, we should apply the rule of lenity so as not to allow consecutive sentences in this situation. Last Term in Bifulco v. United States, 447 U.S. 381, 100 S.Ct. 2247, 65 L.Ed.2d 205 (1980), we recognized that the rule of lenity is a principle of statutory construction which applies not only to interpretations of the substantive ambit of criminal prohibitions, but also to the penalties they impose. Quoting Ladner v. United States, 358 U.S. 169, 178, 79 S.Ct. 209, 214, 3 L.Ed.2d 199 (1958), we stated: " 'This policy of lenity means that the Court will not interpret a federal criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what Congress intended.' " 447 U.S., at 387, 100 S.Ct., at 2252. We emphasized that the "touchstone" of the rule of lenity "is statutory ambiguity." And we stated: "Where Congress has manifested its intention, we may not manufacture ambiguity in order to defeat that intent." Ibid. Lenity thus serves only as an aid for resolving an ambiguity; it is not to be used to beget one. The rule comes into operation "at the end of the process of construing what Congress has expressed, not at the beginning as an overriding consideration of being lenient to wrongdoers." Callanan v. United States, supra, at 596, 81 S.Ct., at 326.
24
In light of these principles, the rule of lenity simply has no application in this case; we are not confronted with any statutory ambiguity. To the contrary, we are presented with statutory provisions which are unambiguous on their face and a legislative history which gives us no reason to pause over the manner in which these provisions should be interpreted.
25
The conclusion we reach today regarding the intent of Congress is reinforced by the fact that the two conspiracy statutes are directed to separate evils presented by drug trafficking. "Importation" and "distribution" of marihuana impose diverse societal harms, and, as the Court of Appeals observed, Congress has in effect determined that a conspiracy to import drugs and to distribute them is twice as serious as a conspiracy to do either object singly. 612 F.2d, at 918. This result is not surprising for, as we observed many years ago, the history of the narcotics legislation in this country "reveals the determination of Congress to turn the screw of the criminal machinery—detection, prosecution and punishment—tighter and tighter." Gore v. United States, 357 U.S., at 390, 78 S.Ct., at 1283.
26
Having found that Congress intended to permit the imposition of consecutive sentences for violations of § 846 and § 963, we are brought to petitioners' argument that notwithstanding this fact, the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution precludes the imposition of such punishment. While the Clause itself simply states that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb," the decisional law in the area is a veritable Sargasso Sea which could not fail to challenge the most intrepid judicial navigator. We have previously stated that the Double Jeopardy Clause "protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the offense after conviction. And it protects against multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969) (footnotes omitted).
27
Last Term in Whalen v. United States, this Court stated that "the question whether punishments imposed by a court after a defendant's conviction upon criminal charges are unconstitutionally multiple cannot be resolved without determining what punishments the Legislative Branch has authorized." 445 U.S., at 688, 100 S.Ct., at 1436, id., at 696, 100 S.Ct., at 1440 (WHITE, J., concurring in part and concurring in judgment); ibid. (BLACKMUN, J., concurring in judgment). In determining the permissibility of the imposition of cumulative punishment for the crime of rape and the crime of unintentional killing in the course of rape, the Court recognized that the "dispositive question" was whether Congress intended to authorize separate punishments for the two crimes. Id., at 689, 100 S.Ct., at 1436. This is so because the "power to define criminal offenses and to prescribe punishments to be imposed upon those found guilty of them, resides wholly with the Congress." Ibid. As we previously noted in Brown v. Ohio, "[w]here consecutive sentences are imposed at a single criminal trial, the role of the constitutional guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense." 432 U.S., at 165, 97 S.Ct., at 2225. Thus, the question of what punishments are constitutionally permissible is not different from the question of what punishments the Legislative Branch intended to be imposed. Where Congress intended, as it did here, to impose multiple punishments, imposition of such sentences does not violate the Constitution.3
28
The judgment of the Court of Appeals is accordingly
29
Affirmed.
30
Justice STEWART, with whom Justice MARSHALL and Justice STEVENS join, concurring in the judgment.
31
In Whalen v. United States, 445 U.S. 684, 688, 100 S.Ct. 1432, 1436, 63 L.Ed.2d 715, the Court said that "the question whether punishments imposed by a court after a defendant's conviction upon criminal charges are unconstitutionally multiple cannot be resolved without determining what punishments the Legislative Branch has authorized."
32
But that is a far cry from what the Court says today: "[T]he question of what punishments are constitutionally permissible is not different from the question of what punishments the Legislative Branch intended to be imposed. Where Congress intended, as it did here, to impose multiple punishments, imposition of such sentences does not violate the Constitution." Ante, at 344. These statements are supported by neither precedent nor reasoning and are unnecessary to reach the Court's conclusion.
33
No matter how clearly it spoke, Congress could not constitutionally provide for cumulative punishments unless each statutory offense required proof of a fact that the other did not, under the criterion of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306.
34
Since Congress has created two offenses here, and since each requires proof of a fact that the other does not, I concur in the judgment.
1
Both petitioners and the Government concede that the legislative history is silent with regard to whether Congress intended to impose multiple punishment for a single conspiracy which violates both § 846 and § 963. See Brief for Petitioners 18-19 and Brief for United States 25. In support of their argument that this silence equals "ambiguity," petitioners set forth an alternative explanation for the existence of the two separate conspiracy statutes. Petitioners contend that these different statutes were enacted because two different Committees in the House of Representatives had jurisdiction over the different Subchapters of the Act. The legislation was initially referred to the House Committee on Ways and Means and, following hearings, that Committee decided to consider only the provisions relating to imports and exports of narcotic drugs, transferring the remaining provisions—relating to domestic regulation and control—to the Interstate and Foreign Commerce Committee. Petitioners argue that this background supports a conclusion that the dual structure of the Act was a result of congressional concern with committee jurisdiction and not an intent by Congress to authorize multiple punishment. The Government persuasively responds to this speculation by noting that Congress was unquestionably aware of the existence of the separate conspiracy provisions inasmuch as the enacted legislation evidences a great deal of coordination between the two House Committees. For example, Subchapter II of the Act incorporates the basic standards of Subchapter I and makes numerous express references to the provisions of that Subchapter. The Subchapters also have parallel penalty structures imposing similar penalties on similar crimes, and these penalties represent a change from both the administration's proposal and prior law. Moreover, Congressman Boggs, the sponsor of the bill, stated when introducing a floor amendment to Title III (Subchapter II of the Act) that "section 1013 [now 21 U.S.C. § 963]—relating to attempts and conspiracies—. . . will take effect at the same time as the comparable provisions of title II [Subchapter I of the Act encompassing, inter alia, § 846]." 116 Cong.Rec. 33665 (1970).
2
The petitioners also argue that in numerous instances the Government has charged a single conspiracy to import and distribute marihuana in one count. The inconsistency in the Government's behavior supports a finding of an absence of clear congressional intent with regard to the appropriateness of multiple punishment. The Government responds to this argument by noting that in 1977 the Justice Department advised all United States Attorneys that conspiracy to import and distribute should be charged as separate counts. We find that neither argument sheds light on the intent of Congress in this regard.
3
Petitioners' contention that a single conspiracy which violates both § 846 and § 963 constitutes the "same offense" for double jeopardy purposes is wrong. We noted in Brown v. Ohio, that the established test for determining whether two offenses are the "same offense" is the rule set forth in Blockburger —the same rule on which we relied in determining congressional intent. As has been previously discussed, conspiracy to import marihuana in violation of § 963 and conspiracy to distribute marihuana in violation of § 846 clearly meet the Blockburger standard. It is well settled that a single transaction can give rise to distinct offenses under separate statutes without violating the Double Jeopardy Clause. See, e. g., Harris v. United States, 359 U.S. 19, 79 S.Ct. 560, 3 L.Ed.2d 597 (1959); Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958). This is true even though the "single transaction" is an agreement or conspiracy. American Tobacco Co. v. United States, 328 U.S. 781, 66 S.Ct. 1125, 90 L.Ed. 1575 (1946).
| 01
|
450 U.S. 381
101 S.Ct. 1495
67 L.Ed.2d 311
Sidney A. DIAMOND, Commissioner of Patents and Trademarks, petitioner,v.John J. BRADLEY and Benjamin S. Franklin
No. 79-855
Supreme Court of the United States
March 9, 1981
On writ of certiorari to the United States Court of Customs and Patent Appeals.
PER CURIAM.
1
The judgment is affirmed by an equally divided Court.
2
THE CHIEF JUSTICE took no part in the consideration or decision of this case.
| 78
|
450 U.S. 346
101 S.Ct. 1146
67 L.Ed.2d 287
DELTA AIR LINES, INC., Petitioner,v.Rosemary AUGUST.
No. 79-814.
Argued Nov. 12, 1980.
Decided March 9, 1981.
Syllabus
Held: Federal Rule of Civil Procedure 68—which provides that if a plaintiff rejects a defendant's formal settlement offer "to allow judgment to be taken against him," and if "the judgment finally obtained by the offeree is not more favorable than the offer," the plaintiff "must pay the costs incurred after the making of the offer"—does not apply to a case in which judgment is entered against the plaintiff-offeree and in favor of the defendant-offeror. Pp. 350-361.
(a) This interpretation is dictated by Rule 68's plain language—"judgment finally obtained by the offeree . . . not more favorable than the offer"—which confines the Rule's effect to a case in which the plaintiff has obtained a judgment for an amount less favorable than the defendant's settlement offer. Moreover, because the Rule contemplates that a "judgment taken" against a defendant is one favorable to the plaintiff, it follows that a judgment "obtained" by the plaintiff is also a favorable one. Pp. 350-352.
(b) Such interpretation of Rule 68 is also consistent with the Rule's purpose to encourage the settlement of litigation, since the Rule provides an inducement to settle those cases in which there is a strong probability that the plaintiff will obtain a judgment but the amount of recovery is uncertain. It could not have been reasonably intended on the one hand affirmatively to grant the district judge discretion to deny costs to the prevailing party under Rule 54(d)—which provides that costs shall be allowed to the prevailing party unless the trial court otherwise directs—and then on the other hand to give defendants and only defendants—the power to take away that discretion by performing a token act of making a nominal settlement offer. In both of the situations in which Rule 68 does not apply—judgments in the defendant's favor or in the plaintiff's favor for an amount greater than the settlement offer—the trial judge retains his Rule 54(d) discretion. Rule 68's plain language makes it unnecessary to read a requirement into the Rule that only a reasonable settlement offer triggers the rule. A literal interpretation avoids the problem of sham offers, because such an offer will serve no purpose, and a defendant will be encouraged to make only realistic settlement offers. Pp. 352-356.
(c) The above interpretation of Rule 68 is further compelled by its history—the state rules upon which the Rule was modeled, the cases interpreting those rules, and the view of the commentators, including the members of the Advisory Committee. Pp. 356-361.
7 Cir., 600 F.2d 699, affirmed.
E. Allan Kovar, Chicago, Ill., for petitioner.
Susan M. Vance, Chicago, Ill., for respondent.
Elinor H. Stillman, Washington, D. C., for the United States, as amicus curiae, by special leave of Court.
Justice STEVENS delivered the opinion of the Court.
1
Pursuant to Rule 68 of the Federal Rules of Civil Procedure, if a plaintiff rejects a defendant's formal settlement offer, and if "the judgment finally obtained by the offeree is not more favorable than the offer," the plaintiff "must pay the costs incurred after the making of the offer."1 The narrow question presented by this case is whether the words "judgment finally obtained by the offeree" as used in that Rule should be construed to encompass a judgment against the offeree as well as a judgment in favor of the offeree.
2
Respondent Rosemary August (plaintiff) filed a complaint against petitioner Delta Air Lines, Inc. (defendant), alleging that she had been discharged from her position as a flight attendant solely because of her race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. She sought reinstatement, approximately $20,000 in backpay, attorney's fees, and costs. A few months after the complaint was filed, defendant made a formal offer of judgment to plaintiff in the amount of $450.2 The offer was refused, the case was tried, and plaintiff lost. The District Court entered judgment in favor of defendant and directed that each party bear its own costs. Defendant then moved for modification of the judgment, contending that under Rule 68 the plaintiff should be required to pay the costs incurred by defendant after the offer of judgment had been refused. The District Court denied the motion on the ground that the $450 offer had not been made in a good-faith attempt to settle the case and therefore did not trigger the cost-shifting provisions of Rule 68.3 The Court of Appeals affirmed on the same ground. 600 F.2d 699 (CA7 1979), holding that Rule 68 applied only if the defendant's settlement offer was sufficient "to justify serious consideration by the plaintiff."4
3
In finding a reasonableness requirement in the Rule, the Court of Appeals did not confront the threshold question whether Rule 68 has any application to a case in which judgment is entered against the plaintiff-offeree and in favor of the defendant-offeror. Our resolution of the case, however, turns on that threshold question. The answer is dictated by the plain language, the purpose, and the history of Rule 68.
4
* Rule 68 prescribes certain consequences for formal settlement offers made by "a party defending against a claim."5 The Rule has no application to offers made by the plaintiff. The Rule applies to settlement offers made by the defendant in two situations: (a) before trial, and (b) in a bifurcated proceeding, after the liability of the defendant has been determined "by verdict or order or judgment." In either situation, if the plaintiff accepts the defendant's offer, "either party may then file the offer . . . and thereupon the clerk shall enter judgment." If, however, the offer is not accepted, it is deemed withdrawn "and evidence thereof is not admissible except in a proceeding to determine costs." The plaintiff's rejection of the defendant's offer becomes significant in such a proceeding to determine costs.6
5
Under Rule 54(d) of the Federal Rules of Civil Procedure, the party prevailing after judgment recovers costs unless the trial court otherwise directs.7 Rule 68 could conceivably alter the Rule 54(d) presumption in favor of the prevailing party after three different kinds of judgments are entered: (1) a judgment in favor of the defendant; (2) a judgment in favor of the plaintiff but for an amount less than the defendant's settlement offer; or (3) a judgment for the plaintiff for an amount greater than the settlement offer. The question presented by this case is which of these three situations is described by the words "judgment finally obtained by the offeree . . . not more favorable than the offer."
6
Obviously those words do not encompass the third situation—a judgment in favor of the offeree that is more favorable than the offer. Those words just as clearly do encompass the second, for there can be no doubt that a judgment in favor of the plaintiff has been "obtained by the offeree." But inasmuch as the words "judgment . . . obtained by the offeree"—rather than words like "any judgment"—would not normally be read by a lawyer to describe a judgment in favor of the other party, the plain language of Rule 68 confines its effect to the second type of case—one in which the plaintiff has obtained a judgment for an amount less favorable than the defendant's settlement offer.
7
This reading of the plain language of the Rule is supported by other language contained in the Rule. The Rule applies when the defendant offers to have "judgment . . . taken against him." Because the Rule obviously contemplates that a "judgment taken" against a defendant is one favorable to the plaintiff, it follows that a judgment "obtained" by the plaintiff is also a favorable one.
8
In sum, if we limit our analysis to the text of the Rule itself, it is clear that it applies only to offers made by the defendant and only to judgments obtained by the plaintiff. It therefore is simply inapplicable to this case because it was the defendant that obtained the judgment.
II
9
Our interpretation of the Rule is consistent with its purpose. The purpose of Rule 68 is to encourage the settlement of litigation.8 In all litigation, the adverse consequences of potential defeat provide both parties with an incentive to settle in advance of trial. Rule 68 provides an additional inducement to settle in those cases in which there is a strong probability that the plaintiff will obtain a judgment but the amount of recovery is uncertain. Because prevailing plaintiffs presumptively will obtain costs under Rule 54(d), Rule 68 imposes a special burden on the plaintiff to whom a formal settlement offer is made. If a plaintiff rejects a Rule 68 settlement offer, he will lose some of the benefits of victory if his recovery is less than the offer.9 Because costs are usually assessed against the losing party, liability for costs is a normal incident of defeat. Therefore, a nonsettling plaintiff does not run the risk of suffering additional burdens that do not ordinarily attend a defeat, and Rule 68 would provide little, if any, additional incentive if it were applied when the plaintiff loses.
10
Defendant argues that Rule 68 does provide such an incentive, because it operates to deprive the district judge of the discretion vested in him by Rule 54(d). According to this reasoning, Rule 68 is mandatory, and a district judge must assess costs against a plaintiff who rejects a settlement offer and then either fails to obtain a judgment or recovers less than the offer. Therefore, nonsettling plaintiffs could not reject settlement offers in the expectation that the judge might exercise his discretion to deny the defendant costs if the defendant wins.10
11
If we were to accept this reasoning, it would require us to disregard the specific intent expressed in Rule 54(d) and thereby to attribute a schizophrenic intent to the drafters. If, as defendant argues, Rule 68 applies to defeated plaintiffs, any settlement offer, no matter how small, would apparently trigger the operation of the Rule.11 Thus any defendant, by performing the meaningless act of making a nominal settlement offer, could eliminate the trial judge's discretion under Rule 54(d). We cannot reasonably conclude that the drafters of the Federal Rules intended on the one hand affirmatively to grant the district judge discretion to deny costs to the prevailing party under Rule 54(d) and then on the other hand to give defendants—and only defendants the power to take away that discretion by performing a token act.12
12
Moreover, if the Rule operated as defendant argues, we cannot conceive of a reason why the drafters would have given only defendants, and not plaintiffs, the power to divest the judge of his Rule 54(d) discretion. See Simonds v. Guaranty Bank & Trust Co., 480 F.Supp. 1257, 1261 (D.C.Mass.1979). When Rule 68 is read literally, however, it is evenhanded in its operation. As we have already noted, it does not apply to judgments in favor of the defendant or to judgments in favor of the plaintiff for an amount greater than the settlement offer. In both of those extreme situations the trial judge retains his Rule 54(d) discretion. In the former his discretion survives because the Rule applies only to judgments "obtained by the offeree"; in the latter, it survives because the Rule does not apply to a judgment "more favorable than the offer."13 Thus unless we assume that the Federal Rules were intended to be biased in favor of defendants, we can conceive of no reason why defendants—and not plaintiffs— should be given an entirely risk-free method of denying trial judges the discretion that Rule 54(d) confers regardless of the outcome of the litigation.14
13
The Court of Appeals, perceiving the anomaly of allowing defendants to control the discretion of district judges by making sham offers, resolved the problem by holding that only reasonable offers trigger the operation of Rule 68. But the plain language of the Rule makes it unnecessary to read a reasonableness requirement into the Rule. A literal interpretation totally avoids the problem of sham offers, because such an offer will serve no purpose, and a defendant will be encouraged to make only realistic settlement offers.15 The Federal Rules are to be construed to "secure the just, speedy, and inexpensive determination of every action." Fed.Rule Civ.Proc. 1. If a plaintiff chooses to reject a reasonable offer, then it is fair that he not be allowed to shift the cost of continuing the litigation to the defendant in the event that his gamble produces an award that is less than or equal to the amount offered. But it is hardly fair or evenhanded to make the plaintiff's rejection of an utterly frivolous settlement offer a watershed event that transforms a prevailing defendant's right to costs in the discretion of the trial judge into an absolute right to recover the costs incurred after the offer was made.16
III
14
This interpretation of the language of the Rule and its clear purpose is further compelled by the history of Rule 68. Rule 68 is an outgrowth of the equitable practice of denying costs to a plaintiff "when he sues vexatiously after refusing an offer of settlement."17 The 1938 Advisory Committee Notes to the original version of the Rule merely cited three state statutes as illustrations of the operation of the Rule.18 These three statutes, from Minnesota, Montana, and New York, mandated the imposition of costs on a plaintiff who rejected settlement offers and failed to obtain a judgment more favorable than the offer.19 All three States had other provisions, similar to Rule 54(d), providing for the recovery of costs by a prevailing party.20 Therefore the only purpose served by these state offer-of-judgment rules was to penalize prevailing plaintiffs who had rejected reasonable settlement offers without good cause.21 As defendant notes, other States have or had similar rules.22 But with one exception all of the cases cited by plaintiff, defendant, and the EEOC as amicus involving state cost-shifting rules were cases in which the plaintiff prevailed.23
15
The commentators, including the members of the Advisory Committee, have agreed with our interpretation of the Rule.24 At a symposium held shortly after the Rules were issued in 1938, one of the members of the Advisory Committee presented the Rule as "a means for stopping the running of costs where the defendant admits that part of the claim is good but proposes to contest the balance."25 The Advisory Committee Notes to the 1946 Amendment to the Rule indicate that the Rule was designed to "save" a defendant from having to reimburse the plaintiff for costs incurred after the offer was made and not to make mandatory the court's discretionary power to tax costs against the plaintiff in the event the defendant prevails.26 The fact that the defense bar did not develop a practice of seeking costs under Rule 68 by making nominal settlement offers is persuasive evidence that trial lawyers have interpreted the Rule in accordance with its plain language.27 Thus the state rules upon which Rule 68 was modeled, the cases interpreting those rules, and the commentators' view of the Rule are all consistent with, and in fact compel, our reading of its plain language.
16
Although defendant's petition for certiorari presented the question of the District Judge's abuse of discretion in denying defendants costs under Rule 54(d), that question was not raised in the Court of Appeals and is not properly before us. We therefore affirm the judgment of the Court of Appeals.
17
It is so ordered.
18
Justice POWELL, concurring in the result.
19
I agree with most of the views expressed in the dissenting opinion of Justice REHNQUIST, and do not agree with the Court's reading of Rule 68. It is anomalous indeed that, under the Court's view, a defendant may obtain costs under Rule 68 against a plaintiff who prevails in part but not against a plaintiff who loses entirely.
20
I nevertheless concur in the result reached by the Court because I do not think that the terms of the offer made in this case constituted a proper offer of judgment within the scope of Rule 68.
21
* Rule 68 provides, in pertinent part:
22
"At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against him for the money or property or to the effect specified in his offer, with costs then accrued " (emphasis added).
23
In Title VII cases, the scope of "costs" is defined in the statute itself. Except in unusual circumstances, Title VII requires that a prevailing plaintiff receive "a reasonable attorney's fee as part of the costs." 42 U.S.C. § 2000e-5(k); see Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 416-417, 98 S.Ct. 694, 697-698, 54 L.Ed.2d 648 (1978); Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 401-402, 88 S.Ct. 964, 965-966, 19 L.Ed.2d 1263 (1968). We held last Term in Maher v. Gagne, 448 U.S. 122, 129, 100 S.Ct. 2570, 2575, 65 L.Ed.2d 653 (1980), that a claim to an attorney's fee is not weakened if the plaintiff prevails by "settlement rather than through litigation."
24
A Rule 68 offer of judgment is a proposal of settlement that, by definition, stipulates that the plaintiff shall be treated as the prevailing party. It follows, therefore, that the "costs" component of a Rule 68 offer of judgment in a Title VII case must include reasonable attorney's fees accrued to the date of the offer. Scheriff v. Beck, 452 F.Supp. 1254, 1260 (Colo.1978) (offer of $2,200 together with costs, not including attorney's fees, was "fatally defective because it excludes attorney's fees then accrued").
25
The purposes of Title VII and Rule 68 each would be served by this plain-language construction of the relationship between the statute and the Rule. To be sure, Title VII's fee provision was designed to enable plaintiffs to vindicate their rights through litigation. Piggie Park, supra, at 401-402, 88 S.Ct., at 965-966. On the other hand, parties to litigation and the public as a whole have an interest—often an overriding one—in settlement rather than exhaustion of protracted court proceedings. Rule 68 makes available to defendants a mechanism to encourage plaintiffs to settle burdensome lawsuits. The Rule particularly facilitates the early resolution of marginal suits in which the defendant perceives the claim to be without merit, and the plaintiff recognizes its speculative nature.1
26
An offer to allow judgment that does not cover accrued costs and attorney's fees is unlikely to lead to settlement. Many plaintiffs simply could not afford to accept such an offer. It may be, also, that the plaintiff's lawyer instituted the suit with no hope of compensation beyond recovery of a fee from the defendant. Such a lawyer might have a conflict of interest that would inhibit encouraging his client to accept an otherwise fair offer. It therefore seems clear that the relevant interests—of both parties and the public—will be served by construing Title VII and Rule 68 in accordance with their plain language.2
II
27
Delta's offer in this case did not comply with the terms of Rule 68.
28
When a plaintiff prevails in a litigated Title VII suit, the court awards a reasonable attorney's fee. The primary factors relevant to setting the fee usually are the time expended and a reasonable hourly rate for that time.3 Thus, a court is not bound by the prevailing attorney's proposed hourly rate or by the bill submitted. The fee itself must be reasonable.
29
The same practice should be followed in Title VII cases in which the prevailing party is established by a Rule 68 offer of judgment. Cf. Maher v. Gagne, supra. In such a case, the offer of judgment consists of two components: (i) the substantive relief proposed, which may be a sum of money or specific relief such as reinstatement or promotion, and (ii) costs, including a reasonable attorney's fee. The offer should specify the first component with exactitude. But the amount of the fee is within the discretion of the court if the offer is accepted.4
30
Assessed by these standards, Delta's putative offer of judgment simply did not comply with the terms of Rule 68. In pertinent part, the offer provided:
31
"Pursuant to Rule 68 of the Federal Rules of Civil Procedure, defendant hereby offers to allow judgment to be taken against it in this action, in the amount of $450, which shall include attorney's fees, together with costs accrued to date" (emphasis added).
32
Delta's offer would have complied with Rule 68—and the company now would be entitled to the costs it seeks5—if the offer had specified some amount of substantive relief, plus costs and attorney's fees to be awarded by the trial court. But the offer did not so specify.
33
Accordingly, I concur in the result.
34
Justice REHNQUIST, with whom THE CHIEF JUSTICE and Justice STEWART join, dissenting.
35
Of the several remarkable aspects of the Court's opinion in this case, not the least is that, save for the docket number and the name of the case, it bears virtually no resemblance to the judgment and opinion of the Court of Appeals for the Seventh Circuit which we granted certiorari to review. The question presented by the petition for certiorari, albeit in somewhat laborious form, is best captured in the first of the three questions:
36
"Whether the [C]ourt of [A]ppeals erred in nullifying the clear and unambiguous mandatory imposition of costs under Rule 68?" Pet. for Cert. 2
37
The Court states that "[t]he narrow question presented by this case is whether the words 'judgment obtained by the offeree' as used in that Rule should be construed to encompass a judgment against the offeree as well as a judgment in favor of the offeree." Ante, at 348. After reciting the procedural history of the case in the lower courts, the Court criticizes the Court of Appeals for its failure to confront "the threshold question whether Rule 68 has any application to a case in which judgment is entered against the plaintiff-offeree and in favor of the defendant-offeror." Ante, at 350. The Court's resolution of the case turns on that threshold question and it finds that the answer "is dictated by the plain language, the purpose, and the history of Rule 68." Ibid.
38
Though the ultimate result reached by the Court is the same as that of the Court of Appeals, the difference in approach of the two opinions could not be more striking. The Court of Appeals began its opinion by stating that "[t]he issue presented in this appeal is whether the awarding of costs under Rule 68 of the Federal Rules of Civil Procedure is mandatory or discretionary if the final judgment obtained by plaintiff is not more favorable than the defendant's offer." 600 F.2d 699, 699-700 (1979) (emphasis supplied). The Court of Appeals relied primarily on the ground that this was a private action under Title VII of the Civil Rights Act of 1964, and it was not willing "to permit a technical interpretation of a procedural rule to chill the pursuit of that high objective." Id., at 701. The court explained that a $450 offer in a case such as this made the semantically mandatory language of Rule 68 discretionary and permitted, but did not require, the District Court to award costs when, "viewed as of the time of the offer along with consideration of the final outcome of the case, the offer can be seen to have been made in good faith and to have had some reasonable relationship in amount to the issues, litigation risks, and expenses anticipated and involved in the case." Id., at 702. The Court of Appeals reasoned that this "liberal" not "technical" reading of Rule 68 is justified, at least in a Title VII case, and that it did not need to decide whether the same approach should be taken in other types of cases. Ibid. To the Court of Appeals, the mandatory language of Rule 68, at least in a Title VII case, is only discretionary where the offer is not "reasonable" and in "good faith" (neither of which qualifications are found in Rule 68). But to this Court, the Court of Appeals was entirely in error in even reaching that question because Rule 68 has no applicability to a case in which a judgment is entered against the plaintiff-offeree and in favor of the defendant-offeror. Totally ignoring the common-sense maxim that the greater includes the lesser, the Court concludes that its answer is "dictated by the plain language, the purpose, and the history of Rule 68."
39
Two of the three reasons advanced by the Court of Appeals in support of its opinion permitting the District Court not to impose costs on respondent in this case are squarely negated by the reasoning of the Court's opinion. The "plain language" of the Rule refers neither to an exception for Title VII cases nor to a requirement that an offer be "reasonable" or made "in good faith."
40
Although Title VII provides for elaborate conciliation machinery before suit, the plaintiff who receives a "right to sue" letter from the EEOC is simply authorized to sue the employer in the appropriate United States district court. There is no intimation in the Federal Rules of Civil Procedure or Title VII that such lawsuit will not be conducted in accordance with the Federal Rules of Civil Procedure. In fact, Rule 1 of the Federal Rules specifically provides that "[t]hese rules govern the procedure in the United States district courts in all suits of a civil nature whether cognizable as cases at law or in equity, or in admiralty, with the exceptions stated in Rule 81." Rule 81 sets forth a list of exceptions including bankruptcy proceedings and proceedings in copyright brought under Title 17 of the United States Code, but proceedings brought under Title VII are not included. Presumably, the "plain language" of the Federal Rules and in particular Rule 68, as well as the "plain language" of the applicable provisions of Title VII, would bring the Court to reject any special treatment with respect to costs for a Title VII lawsuit.
41
In my view, there is also no basis for reading into Rule 68 any additional conditions for bringing the Rule into play other than those which are specifically contained in the provisions of the Rule itself. I assume that the Court would agree with this approach in view of its fondness for the "plain meaning" canon of statutory construction. Therefore, the best and shortest response to the Court of Appeals' suggestion that a Rule 68 offer must be "reasonable" and made in "good faith" is that Rule 68 simply does not incorporate any such requirement; it deprives a district court of its traditional discretion under Rule 54 to disallow costs to the prevailing party in the strongest verb of its type known to the English language—"must":
42
"If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer. . . ." Fed.Rule Civ.Proc. 68. (Emphasis added.)
43
Over a half century ago the Court of Appeals for the Sixth Circuit said "the word 'must' is so imperative in its meaning that no case has been called to our attention where that word has been read 'may.' " Berg v. Merchant, 15 F.2d 990 (1926), cert. denied, 274 U.S. 738, 47 S.Ct. 575, 71 L.Ed. 1317 (1927). To import into the mandatory language of Rule 68 a requirement that the tender of judgment must be "reasonable" or made in "good faith" not only rewrites Rule 68, but also puts a district court in the impossible position of having to evaluate such uncertain and nebulous concepts in the context of an "offer of judgment" that in many cases may have been made years past.
44
Since the Court relies on the "plain meaning" of Rule 68, it may be well to set that Rule out verbatim before analyzing its argument. Rule 68 provides in pertinent part:
45
"At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against him for the money or property or to the effect specified in his offer, with costs then accrued. If within 10 days after the service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the clerk shall enter judgment. . . . If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer." (Emphasis added.)
46
The Court asserts that the result reached by, if not the reasoning of, the Court of Appeals is correct because Rule 68, by its "plain language," applies only in cases in which a "judgment [is] finally obtained by the offeree." The Rule, therefore, does not apply in a case such as this where the defendant prevailed—i. e., because no judgment was "obtained by the offeree." If Rule 68 does not apply, the determination regarding costs is governed by Federal Rule of Civil Procedure 54(d), which grants a district court the discretion to award the defendant costs as the "prevailing party," but does not require it to do so. The Court argues that the "plain language" of Rule 68, its "history," and "policy" reasons support this interpretation of the Rule.
47
I read both the "plain language" of the Rule and its history quite differently than does the Court. According to it, a plaintiff—"offeree" under the terms of Rule 68—must win in the trial court in order to "obtain" a "judgment" within the meaning of that Rule. But we may call upon the various canons of statutory construction to pass before us in review as many times as we choose without being reduced to this anomalous conclusion.
48
The term "judgment" is defined in Rule 54(a) of the Federal Rules of Civil Procedure to mean a "decree and any order from which an appeal lies." Unquestionably, respondent "obtained" an "order from which an appeal lies" when the District Court entered its judgment in this case. Certainly, respondent did not subscribe to the Court's reasoning because she immediately sought review in the Court of Appeals of the "judgment" which had been entered against her. Rule 68, when construed to include a traditional "take nothing" judgment, see, Appendix to Fed.Rules Civ.Proc., Forms 31 and 32, 28 U.S.C.App., p. 530, as well as a judgment in favor of the plaintiff but less than the amount of the offer, thus fits with the remaining parts of the Federal Rules of Civil Procedure pertaining to judgments and orders in a manner in which the drafters of the Rule surely must have intended. To circumscribe Rule 68 in the manner in which the Court does is to virtually cut it adrift from the remaining related portions of the Federal Rules of Civil Procedure, a construction which could be justified only by the strongest considerations of history and policy. Our cases do not support the proposition that such a construction will never be given to a rule or statute, but they do indicate that only the strongest support in the legislative history warrants such a result. Chemehuevi Tribe of Indians v. FPC, 420 U.S. 395, 95 S.Ct. 1066, 43 L.Ed.2d 279 (1975).
49
I think my reading of this part of Rule 68 is entirely consistent with the Rule's history. When the Federal Rules of Civil Procedure were adopted in 1938, the pertinent part of Rule 68 read:
50
"If the offer is not so accepted it shall be deemed withdrawn and evidence thereof is not admissible. If the adverse party fails to obtain a judgment more favorable than that offered, he shall not recover costs in the district court from the time of the offer but shall pay costs from that time." (Emphasis supplied.)
51
Obviously, the event that "triggered" the operation of the original Rule 68 was the failure of the plaintiff to obtain a judgment more favorable than that offered. Just as obviously, the plaintiff in this case did not meet her burden of obtaining a judgment more favorable than the $450 she was offered. The operation of Rule 68 was not intended to change when this part of the Rule was amended in 1948 to its present form. The Advisory Committee Notes to the 1948 amendment explain the reasons for the amendment—none of which give any indication that Congress decided to take away the benefits of the Rule to a defendant who made a Rule 68 offer but later prevailed on the merits.1
52
As noted by the Court, the 1938 Advisory Committee Notes to the original version of the Rule cite to three state statutes as illustrations of the operation of the Rule. These three statutes, like the text of the original Rule 68, all mandated imposition of costs on a plaintiff who rejected an offer of judgment and then later failed to recover a judgment more favorable than the offer.2 This is the identical situation which the plaintiff here finds herself in. Moreover, in each of these three States, the general statutes providing for recovery of costs by prevailing defendants was, unlike Rule 54(d), mandatory. See, e. g., 4 Mont.Rev.Codes Ann. §§ 9787, 9788 (1935); 2 Minn.Stat. § 9471 (Mason 1927); and N.Y.Civ.Prac.Law §§ 1470-1475 (Thompson 1939). As a result, the state cases cited by the Court do not address the situation in which a defendant has prevailed on the merits because in that situation the shifting of costs was mandatory under state law. It is, therefore, difficult for me to understand how it can be argued that Congress, seeking to pattern Rule 68 after the procedure used in these three States, could have possibly intended to immunize plaintiffs from the operation of the Rule and the concomitant costs it imposes simply because they lost their cases on the merits. It is also noteworthy that the lower court cases that have confronted the situation of a prevailing defendant seeking to recover its costs under Rule 68 have all concluded that such recovery is permissible. See Dual v. Cleland, 79 F.R.D. 696 (DC 1978); Mr. Hanger, Inc. v. Cut Rate Hangers, Inc., 63 F.R.D. 607 (EDNY 1974); Gay v. Waiters' & Dairy Lunchmen's Union, Local No. 30, 86 F.R.D. 500 (ND Cal.1980).3
53
Contrary to the view of the Court, I think that Rule 68 and Rule 54(d) are entirely consistent with one another when read in a manner faithful to their actual language; indeed, the language of these Rules must be twisted virtually beyond recognition, and that of Rule 68 parsed virtually out of existence, to say that the latter Rule does not apply in a situation such as this simply because the petitioner prevailed. Rule 54(d) itself contemplates the removal from the trial judge of the discretion of awarding costs when by its express terms it excepts situations where "express provision therefor is made . . . in these rules." It cannot be doubted that the mandatory language of Rule 68 is as clear a case of "express provision" as could be imagined.
54
While I do not think it necessary to address the "policy" considerations relied upon by the Court when the intent of the drafters of the Rule is as plain as it is here, I do think it appropriate to note that no policy argument will convince me that a plaintiff who has refused an offer under Rule 68 and then has a "take nothing" judgment entered against her should be in a better position than a similar plaintiff who has refused an offer under Rule 68 but obtained a judgment in her favor, although in a lesser amount than that which was offered pursuant to Rule 68. The construction of Rule 68 urged by the Court would place in a better position a defendant who tendered $10,000 to a plaintiff under Rule 68 in a case where the plaintiff was awarded $5,000 than where the same tender was made and the plaintiff was awarded nothing.
55
One final argument that has been pressed as a reason for affirmance of the Court of Appeals merits response. Rule 68 requires a party defendant against a claim to serve upon the adverse party "an offer to allow judgment to be taken against him for the money or property or to the effect specified in his offer, with costs then accrued." A literal reading of the Rule appears to entitle a plaintiff to all costs accrued at the time of the offer. If the offer is accepted, the defendant must pay whatever costs the court determines were taxable at the time of the offer. Thus, a valid Rule 68 offer cannot be made if it limits or excludes any of the costs accrued on the date of the offer.
56
It is argued that because "costs" are nowhere defined in the Federal Rules of Civil Procedure it is necessary to look elsewhere to determine the types of costs which are assessable under Rule 68. Title VII does not contain a general definition of the term "costs," but it does specify that a court, in its discretion, shall allow the "prevailing party" a "reasonable attorney's fee as part of the costs. . . ." 42 U.S.C. § 2000e-5(k). This Court has interpreted this provision to mean that a prevailing plaintiff shall receive her costs "except in unusual circumstances," and we held last Term that a claim to an attorney's fee is not defeated if the plaintiff prevails by "settlement rather than through litigation." Maher v. Gagne, 448 U.S. 122, 129, 100 S.Ct. 2570, 2575, 65 L.Ed.2d 653 (1980). Because a Rule 68 offer of judgment is a proposal which by definition stipulates that the plaintiff shall be treated as the prevailing party, as the argument runs, the cost component of Rule 68 in a Title VII case must include a component for plaintiff's reasonable attorney's fees accrued as of the date of the offer. Petitioner's offer in this case under this theory did not technically comply with Rule 68 because it limited the amount of attorney's fees to be recovered by the respondent and thus did not provide for the recovery of all costs accrued at the date of the offer.4
57
This argument, although superficially appealing, does not survive careful scrutiny. Our analysis must focus on the meaning of the word "costs" contained in Rule 68 and we are aided in this analysis by our decision only last Term in Roadway Express, Inc. v. Piper, 447 U.S. 752, 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980). There we were confronted with the question of whether the word "costs" contained in 28 U.S.C. § 1927 included attorney's fees in the context of a civil rights lawsuit. Section 1927 provides that lawyers who multiply court proceedings vexatiously may be assessed the excess "costs" they create. However, § 1927, like Rule 68, did not define the critical word—"costs." A District Court had concluded that because the civil rights statutes allow a prevailing party to recover attorney's fees as part of the costs of litigation, it was authorized to award attorney's fees as part of the sanction it imposed under § 1927. We rejected this conclusion and in so doing we stated that in construing the term "costs" it was appropriate to look to the contemporaneous understanding of the term when the statute was enacted. We then assumed that Congress followed the recognized "American rule" that attorney's fees were not included within the definition of "costs" when it enacted § 1927. 447 U.S., at 759, 100 S.Ct., at 2460. Without any evidence that Congress wished to alter or amend the definition of "costs" by the passage of the civil rights fee-shifting statutes, 42 U.S.C. §§ 1988 and 2000e-5(k), we were unwilling to expand its historical definition.
58
A conclusion similar to that reached in Roadway Express is equally sound here when determining whether "costs" as used in Rule 68 include attorney's fees in the context of a civil rights suit. Certainly, the "contemporaneous understanding" of "costs" when the Federal Rules of Civil Procedure were promulgated in 1938 did not include attorney's fees any more than it did in 1813 when the predecessor to § 1927 was enacted. The legislative history of Rule 68 indicates no intent to deviate from the common meaning of costs and this conclusion is bolstered by the fact that when the authors of the Rules intended that attorney's fees be recovered, such fees were specifically mentioned. See, e. g., Fed.Rule Civ.Proc. 37, which allows "reasonable expenses . . . including attorney's fees," as a sanction for discovery abuses.
59
There is likewise no evidence of any congressional intent to alter the meaning of the word "costs" in Rule 68 by the passage of the civil rights statutes. Nothing in the fee-shifting provisions of these statutes or their legislative history has come to my attention which would suggest that Congress intended to amend Rule 68 by adding attorney's fees to otherwise taxable "costs" under that Rule.
60
It is also worth noting that the logic that would include attorney's fees as recoverable costs under Rule 68 would also allow a similar recovery of attorney's fees in other litigation under statutes which permit the award of attorney's fees. In 1975, this Court noted in Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141, that 29 statutes allow federal courts to award attorney's fees in certain suits. Id., at 260-261, n. 33, 95 S.Ct. at 1623, n. 33. Some of these statutes define attorney's fees as an element of costs while others separate fees from other taxable costs. To construe Rule 68 to allow attorney's fees to be recoverable as costs would create a two-tier system of cost-shifting under Rule 68. Plaintiffs in cases brought under those statutes which award attorney's fees as costs and who are later confronted with a Rule 68 offer would find themselves in a much different and more difficult position than those plaintiffs who bring actions under statutes which do not have attorney's fees provisions. No persuasive justification exists for subjecting these plaintiffs to differing penalties for failure to accept a Rule 68 offer and no persuasive justification can be offered as to how such a reading of Rule 68 would in any way further the intent of the Rule which is to encourage settlement.
61
Finally, if the term "costs" in Rule 68 includes attorney's fees, then Title VII plaintiffs who reject Rule 68 offers may find themselves in the unenviable position of having to absorb a defendant's attorney's fees if they fail to recover a judgment as favorable as the defendant's offer. This could seriously undermine the purposes behind the attorney's fees provisions of the Civil Rights Act, and yet there is no principled way to allow attorney's fees to be recovered as costs under Rule 68 in some Title VII situations while prohibiting such recovery in others. As we noted in Roadway Express in a similar context, to select on an ad hoc basis those features of § 1988 and § 2000e-5(k) that should be read into Rule 68 would not only fundamentally alter the nature of Rule 68 but would also constitute standardless judicial law-making. Accordingly, in my view the offer made by the petitioner in this case fully complied with the terms of Rule 68 even though it attempted to place a limit on the ultimate amount of attorney's fees to be recovered. Because the "costs" provision in Rule 68 does not encompass attorney's fees, those fees are just as susceptible to compromise and settlement as are other inchoate consequences of liability such as compensatory damages or backpay.5
62
In sum, I would reject the "plain meaning" basis of the Court's opinion interpreting Rule 68 because, in my view, the Rule must be read not only contrary to its "plain meaning" but also woodenly and perversely in order to reach the conclusion that a prevailing defendant who had made an offer pursuant to Rule 68 should be placed in a worse position than one who has lost to the plaintiff and had a judgment entered against him accordingly, but for an amount less than the amount tendered under Rule 68. This is "plain meaning" with a vengeance; a vengeance which neither the Rules Committee, this Court, nor Congress in their various roles in the adoption of the Rules could have contemplated.
63
It may be said that to read the Rule according to its plain meaning as I see it will place barriers in the way of plaintiffs' suing defendants. The short answer to this argument is that any provisions such as Rule 68 designed to promote settlement, rather than litigation, of claims is bound to make a plaintiff take a look at his "hole card." By the same token, the availability of such a procedure is bound to make the defendant take a look at his "hole card" in order to make certain that he is using every means available to both avoid costly protracted litigation and possible loss of the case if it goes to trial. The Rule interpreted in accordance with its "plain meaning" offers a defendant a method for preventing further accrual of taxable costs in the case of inflated or "nuisance" lawsuits; if the plaintiff is of the opinion that the offer is too low to be worth acceptance or even serious consideration, he need not even respond to it and the case will, unless settled in some other manner, go to trial. By following such a course, a plaintiff who obtains a judgment in excess of the defendant's Rule 68 offer loses absolutely nothing; a plaintiff against whom a "take nothing" judgment is entered loses only the possibility that a district court might exercise its discretion and not award costs to the prevailing defendant. Although the vast increase in the amount of litigation in this Nation today is not a valid reason for twisting rules or statutes in order to reduce such volume, if the plain meaning of a rule may have a tendency to encourage settlement rather than trial, this is surely not an unfortunate mishap in our system of administering justice.
1
Rule 68, as amended in 1966, provides:
"At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against him for the money or property or to the effect specified in his offer, with costs then accrued. If within 10 days after the service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the clerk shall enter judgment. An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer. The fact that an offer is made but not accepted does not preclude a subsequent offer. When the liability of one party to another has been determined by verdict or order or judgment, but the amount or extent of the liability remains to be determined by further proceedings, the party adjudged liable may make an offer of judgment, which shall have the same effect as an offer made before trial if it is served within a reasonable time not less than 10 days prior to the commencement of hearings to determine the amount or extent of liability."
2
The formal offer of judgment submitted by the defendant to the attorney for the plaintiff read as follows:
"Pursuant to Rule 68 of the Federal Rules of Civil Procedure, defendant hereby offers to allow judgment to be taken against it in this action, in the amount of $450 which shall include attorney's fees, together with costs accrued to date. This offer of judgment is made for the purposes specified in Rule 68, and is not to be construed either as an admission that the defendant is liable in this action, or that the plaintiff has suffered any damage." App. 34.
3
Senior District Judge Hoffman stated:
"While there is little authority on the point, this Court is satisfied that in order to be effective, a Rule 68 offer must be made in a good faith attempt to settle the parties' litigation and, thus, must be at least arguably reasonable.
* * * * *
"If the purpose of the rule is to encourage settlement, it is impossible for this Court to concede that this purpose can be furthered or aided by an offer that is not at least arguably reasonable.
* * * * *
"Finally, while the Court did ultimately find itself constrained to enter its judgment for the defendant, the Court certainly did not find the plaintiff's claim to be wholly specious. In the opinion of this Court and in the particular facts and circumstances of this case, an offer of only the sum of $450 could only have been effective were the plaintiff's claim totally lacking in merit or were there present additional factors which would mitigate in favor of the defendant." Id., at 11-12.
4
"Against that general background, the Rule 68 offer of judgment of less than $500 before trial is not of such significance in the context of this case to justify serious consideration by the plaintiff. At oral argument the defendant urged that even an offer of $10 would have met the requirements of Rule 68 and served the purpose of shifting cost liability. If that were so, a minimal Rule 68 offer made in bad faith could become a routine practice by defendants seeking cheap insurance against costs. The useful vitality of Rule 68 would be damaged. Unrealistic use of the rule would not encourage settlements, avoid protracted litigation or relieve courts of vexatious litigation." 600 F.2d, at 701. (Footnote omitted.)
5
In multiclaim litigation, such a party may, of course, be defending against a counterclaim or a cross-claim, but the effect of the Rule can most readily be explained by reference to cases involving a single claim by one plaintiff against one defendant. For that reason, as well as the fact that this case involves such a claim, we simply refer to the parties as "plaintiff" and "defendant."
6
No issue is presented in this case concerning the amount or the items of costs that defendant seeks to recover.
7
Rule 54(d) provides, in relevant part:
"(d) Costs.
"Except when express provision therefor is made either in a statute of the United States or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs . . . ."
8
Advisory Committee's Notes on Fed.Rule Civ.Proc. 68, 28 U.S.C.App., p. 499; 12 C. Wright & A. Miller, Federal Practice and Procedure § 3001, p. 56 (1973); 7 J. Moore & J. Lucas, Moore's Federal Practice ¶ 68.02, p. 68-4 (1979).
9
This incentive is most clearly demonstrated by the situation in which the defendant's liability has been established "by verdict or offer of judgment"—or perhaps by an admission—and the only substantial issue to be tried concerns the amount of the judgment. In that context, the opportunity to avoid the otherwise almost certain liability for costs should motivate realistic settlement offers by the defendant, and the risk of losing the right to recover costs provides the plaintiff with an additional reason for preferring settlement to further litigation.
10
Delta argues that this additional incentive provided by Rule 68 is taking on increased importance as more district judges, like the District Judge here, are exercising the discretion granted by Rule 54(d) to deny costs to prevailing defendants.
11
Defendant contended at oral argument that a settlement offer of one penny should trigger the cost-shifting provision of the Rule if the defendant prevails. Tr. of Oral Arg. 5.
12
Defendant argues that our construction of the Rule is anomalous because under Rule 68, a defendant who prevails is in a less favorable position than if he had lost the case but for an amount less than the offer. Reply Brief for Petitioner 10. The argument is applicable, however, only in a narrowly limited category of cases. First, because the prevailing defendant normally recovers costs, the argument is relevant only in the relatively few cases in which special circumstances may persuade the district judge to exercise his discretion to deny costs to the prevailing party. And second, even within that small category, the argument is only valid if the settlement offer is for an amount less than the recoverable costs. For if the plaintiff obtains a judgment for an amount less than the offer but greater than the cost bill, the net liability of the defendant will be greater than the burden of paying his own costs after a victory on the merits. The fact that a defendant may obtain no benefit from a settlement offer for an amount less than his probable taxable costs is surely not a sufficient reason to disregard the plain language of the Rule, or to question its efficacy in motivating realistic settlement proposals in cases in which the defendant recognizes a significant risk that the plaintiff will obtain a judgment.
In sum, the effect of a literal interpretation of Rule 68 is to attach no practical consequences to a sham or token offer by the defendant. Since there is no reason to encourage such token offers, the Rule quite sensibly leaves the parties in the same position after such an offer as they would have been in if no such offer had been made. See n. 21, infra.
13
Moreover, because Rule 68 has no application at all to offers made by the plaintiff, the plaintiff may not divest the district judge of his Rule 54(d) discretion by making a sham offer.
14
Defendant also argues that it should be permitted to use Rule 68 to recover costs in this manner because district judges have recently been exercising their discretion to deny prevailing defendants costs in too many cases. Reply Brief for Petitioner 8; Tr. of Oral Arg. 14. Since Rule 68 was promulgated prior to this alleged misapplication of Rule 54(d), it surely was not intended to remedy a problem that had not yet surfaced.
Of course, there really is no reason to assume that district judges are repeatedly abusing their Rule 54(d) discretion. If we make the more probable assumption that they are denying costs to the prevailing party only when there would be an element of injustice in a cost award, the burden of defendant's argument is not only that a special privilege should be granted to defendants but also that its primary effect will be to thwart the administration of justice.
15
See Note, Rule 68: A "New" Tool for Litigation, 1978 Duke L.J. 889, 895:
"An offer by a defendant of ten dollars at the beginning of a difficult and complex case, or of a case based on a novel legal theory, is not likely to produce an early settlement of the case, which is the purpose of the rule. Yet, if the rule is not limited to cases in which the plaintiff prevails, the ten dollar offer will have the effect of assuring that the defendant is awarded practically all of his costs if he prevails, even if there are good reasons why the defendant should not be awarded his costs. This is clearly not the result that the rulemakers envisioned. If interpreted to require that the plaintiff secure at least some relief, the rule would insure that token offers will not be made because nothing would be gained by them. In most cases, the defendant, as the prevailing party, will be entitled to costs under rule 54(d). When the defendant is not so entitled, he ought not be able to employ rule 68 to override the discretion that the court would otherwise have, in order to compel the awarding of costs."
16
Moreover, because the defendant's settlement offer is admissible at a proceeding to determine costs, a defendant could use a reasonable settlement offer as a means of influencing the judge's discretion to award costs under Rule 54(d).
17
12 C. Wright & A. Miller, Federal Practice and Procedure § 3001, p. 56 (1973).
18
One of the members of the Advisory Committee, Robert G. Dodge, indicated at a symposium on the new Rules that the Rule was based on "statutes which are widely prevalent in the states . . .." American Bar Association, Rules of Civil Procedure for the District Court of the United States with Notes as prepared under the direction of the Advisory Committee and Proceedings of the Institute on Federal Rules, Cleveland, Ohio 337 (1938) (hereinafter Institute on Federal Rules).
19
2 Minn.Stat. § 9323 (Mason 1927) provided:
"At least ten days before the term at which any civil action shall stand for trial the defendant may serve on the adverse party an offer to allow judgment to be taken against him for the sum, or property, or to the effect therein specified, with costs then accrued. If within ten days thereafter such party shall give notice that the offer is accepted, he may file the same, with proof of such notice, and thereupon the clerk shall enter judgment accordingly. Otherwise the offer shall be deemed withdrawn, and evidence thereof shall not be given; and if a more favorable judgment be not recovered no costs shall be allowed, but those of the defendant shall be taxed in his favor."
4 Mont.Rev.Codes Ann. § 9770 (1935) provided:
"The defendant may, at any time before the trial or judgment, serve upon the plaintiff an offer to allow judgment to be taken against him for the sum or property, or to the effect therein specified. If the plaintiff accept the offer, and give notice thereof within five days, he may file the offer, with proof of notice of acceptance, and the clerk must thereupon enter judgment accordingly. If the notice of acceptance be not given, the offer is to be deemed withdrawn, and cannot be given in evidence upon the trial; and if the plaintiff fail to obtain a more favorable judgment, he cannot recover costs, but he must pay the defendant's costs from the time of the offer."
N.Y.Civ.Prac.Law § 177 (Cahill 1937) provided:
"Before the trial, the defendant may serve upon the plaintiff's attorney a written offer to allow judgment to be taken against him for a sum, or property, or to the effect, therein specified, with costs. If there be two or more defendants, and the action can be severed, a like offer may be made by one or more defendants against whom a separate judgment may be taken. If the plaintiff, within ten days thereafter, serve upon the defendant's attorney a written notice that he accepts the offer, he may file the summons, complaint, and offer, with proof of acceptance, and thereupon the clerk must enter judgment accordingly. If notice of acceptance be not thus given, the offer cannot be given in evidence upon the trial; but, if the plaintiff fail to obtain a more favorable judgment, he cannot recover costs from the time of the offer, but must pay costs from that time."
20
See 2 Minn.Stat. §§ 9471-9473 (Mason 1927); 4 Mont.Rev.Codes Ann. §§ 9787, 9788 (1935); N.Y.Civ.Prac.Law §§ 1470-1475 (Cahill 1937).
21
In each of these States, the general statute providing for recovery of costs by prevailing defendants was, unlike Rule 54(d), mandatory. See, e. g., 4 Mont.Rev.Code Ann. §§ 9787-9788 (1935); 2 Minn.Stat. § 9471 (Mason 1927); N.Y.Civ.Prac.Law §§ 1470-1475 (Cahill 1937). Inasmuch as those statutes did not give trial judges discretion to deny costs to prevailing defendants, the state antecedents of Rule 68 did not perform any cost-shifting function in cases in which the defendant prevailed. In those States—as is true under Rule 68—a sham settlement offer had no practical consequences; it left the parties in the same situation as if no offer had been made. See n. 12, supra. Therefore the state offer-of-judgment statutes provide support for the view that Rule 68 applies only to prevailing plaintiffs.
22
See, e. g., Cal.Civ.Code Civ.Proc. Ann. § 998 (West 1980); Yeager v. Campion, 70 Colo. 183, 197 P. 898 (1921); Wordin v. Bemis, 33 Conn. 216 (1866); Prather v. Pritchard, 26 Ind. 65 (1866); West v. Springfield Fire & Marine Ins. Co., 105 Kan. 414, 185 P. 12 (1919); Wachsmuth v. Orient Ins. Co., 49 Neb. 590, 68 N.W. 935 (1896); Herring-Hall-Marvin Safe Co. v. Balliet, 44 Nev. 94, 190 P. 76 (1920); Hammond v. Northern Pacific R. Co., 23 Or. 157, 31 P. 299 (1892); Sioux Falls Adjustment Co. v. Penn. Soo Oil Co., 53 S.D. 77, 220 N.W. 146 (1928); Newton v. Allis, 16 Wis. 197 (1862).
23
See cases cited in n. 22, supra ; see also Miklautsch v. Dominick, 452 P.2d 438 (Alaska 1969); Brown v. Nolan, 98 Cal.App.3d 445, 159 Cal.Rptr. 469 (1979); Schnute Holtman Co. v. Sweeney, 136 Ky. 773, 125 S.W. 180 (1910); Watkins v. W. E. Neiler Co., 135 Minn. 343, 160 N.W. 864 (1917); Petrosky v. Flanagan, 38 Minn. 26, 35 N.W. 665 (1887); Woolsey v. O'Brien, 23 Minn. 71, 72 (1876); Morris-Turner Live Stock Co. v. Director General of Railroads, 266 F. 600 (Mont.1920); Margulis v. Solomon & Berck Co., 223 App.Div. 634, 229 N.Y.S. 157 (1928); Smith v. New York, O. & W. R. Co., 119 Misc. 506, 196 N.Y.S. 521 (1922); McNally v. Rowan, 101 App.Div. 342, 92 N.Y.S. 250, aff'd, 181 N.Y. 556, 74 N.E. 1120 (1905); Ranney v. Russell, 10 N.Y.Super. 689, 690 (1854); Benda v. Fana, 10 Ohio St.2d 259, 227 N.E.2d 197 (1967); but see Terry v. Burger, 6 Ohio App.2d 53, 216 N.E. 383 (1966).
24
Some commentators assume that the Rule, even when applicable, operates to deny costs to a prevailing plaintiff and not to impose liability for defendants' costs on that plaintiff. Wright and Miller's treatise indicates:
"Rule 68 is intended to encourage settlements and avoid protracted litigation. It permits a party defending against a claim to make an offer of judgment. If the offer is not accepted, and the ultimate judgment is not more favorable than what was offered, the party who made the offer is not liable for costs accruing after the date of the offer.
"This device was entirely new to the federal courts when the Federal Rules were adopted in 1938. But it was familiar in state practice. And the general principle, that a party may be denied costs when he sues vexatiously after refusing an offer of settlement, and recovers no more than he had been previously offered, has been held to be within the powers of an equity court regardless of the existence of a rule such as this one.
"Although the privilege of an offer of settlement is extended only to the party defending against a claim, it furnishes a just procedure to all parties concerned. It is fair to the claimant because it does the defending party no good to make an offer of judgment that is not what the claimant might reasonably be expected to recover ; he will not free himself of the costs if the judgment recovered is more than the offer. It is certainly fair to the defending party because it allows him to free himself of the court costs by offering to make a settlement. It is of great benefit to the court because it encourages settlements and discourages vexatious suits and thus diminishes the burden of litigation." (Footnotes omitted.) (Emphasis supplied.) 12 C. Wright & A. Miller, Federal Practice and Procedure § 3001, p. 56 (1973).
Moore uses similar language in his treatise, stating that an offer of judgment will "operate to save [the defendant] the costs from the time of that offer if the plaintiff ultimately obtains a judgment less than the sum offered." 7 J. Moore & J. Lucas, Moore's Federal Practice ¶ 68.06, p. 68-13 (1979) (emphasis supplied). See also Dobie, The Federal Rules of Civil Procedure, 25 Va.L.Rev. 261, 304, n. 195 (1939) ("[I]f the offer is not accepted, it, of course, relieves the offering defendant of the burden of future costs, thereby constituting an inducement to the making of such offers").
25
Mr. Dodge stated:
"This rule is based upon statutes which are widely prevalent in the states, and it affords a means for stopping the running of costs where the defendant admits that part of the claim is good but proposes to contest the balance. He may then make an offer of judgment of the amount which he conceives is due, and unless the plaintiff recovers more than that the plaintiff gets no costs accruing after that offer of judgment." Institute on Federal Rules 337 (emphasis supplied).
26
The Advisory Committee's Notes state:
"It is implicit, however, that as long as the case continues whether there be a first, second or third trial—and the defendant makes no further offer, his first and only offer will operate to save him the costs from the time of that offer if the plaintiff ultimately obtains a judgment less than the sum offered. In the case of successive offers not accepted, the offeror is saved the costs incurred after the making of the offer which was equal to or greater than the judgment ultimately obtained." 28 U.S.C.App., p. 499.
27
It was not until 1974 that any federal court even suggested that Rule 68 could be interpreted to apply to a case in which the defendant
prevails. See Mr. Hanger, Inc. v. Cut Rate Plastic Hangers, Inc., 63 F.R.D. 607 (E.D.N.Y.1974).
Apart from the case at bar and Mr. Hanger, Inc., there are only two other reported cases in which a defendant attempted to recover his own costs under Rule 68 after obtaining a judgment in his favor. In Dual v. Cleland, 79 F.R.D. 696 (D.C.1978), the court followed Mr. Hanger and reluctantly granted defendant an award of costs under Rule 68, after stating that it would not have allowed costs to defendant as the prevailing party under Rule 54(d). In Gay v. Waiters' and Dairy Lunchmen's Union, Local No. 30, 86 F.R.D. 500, 503-504 (N.D.Cal.1980), the court assumed that Rule 68 applied to prevailing defendants but refused to apply the Rule to impose costs on the named plaintiffs in a Title VII class action. The court noted that if Rule 68 applied in class actions, the disproportionate risk imposed on the class representatives would discourage the filing of Title VII suits.
All the other reported cases involving Rule 68 were either cases in which the plaintiff had prevailed or cases in which the court implicitly assumed that the Rule was limited to such a situation. See, e. g., Mason v. Belieu, 177 U.S.App.D.C. 68, 75, 543 F.2d 215, 222 (plaintiffs not awarded costs because they failed to file a bill of costs and defendant thus did not know which costs to object to as being incurred after the offer was made), cert. denied, 429 U.S. 852, 97 S.Ct. 144, 50 L.Ed.2d 127 (1976); Home Ins. Co. v. Kirkevold, 160 F.2d 938, 941 (CA9 1947) (plaintiff still entitled to recover costs where defendant did not prove that its offer of judgment was served within 10 days of trial); Truth Seeker Co. v. Durning, 147 F.2d 54, 56 (CA2 1945) ("[D]efendant could have stopped the running of further costs by an offer of judgment under F.R.C.P. 68"); Cover v. Chicago Eye Shield Co., 136 F.2d 374 (CA7) (defendant not liable for fees of master and court reporter where plaintiff recovered less than offer), cert. denied, 320 U.S. 749, 64 S.Ct. 53, 88 L.Ed. 445 (1943); Staffend v. Lake Central Airlines, Inc., 47 F.R.D. 218, 220 (ND Ohio 1969) (a defendant may "escape the imposition of further costs where the plaintiff does not eventually secure a judgment exceeding the offer"); Tansey v. Transcontinental & Western Air, Inc., 97 F.Supp. 458, 459 (DC 1949) (an offer that was not for a sum certain will not prevent the court from considering plaintiff's costs thereafter incurred); Maguire v. Federal Crop Ins. Corp., 9 F.R.D. 240, 242 (WD La. 1949) (defendant cannot "escape" paying the plaintiff's costs because offer was not properly formalized), aff'd in part and rev'd in part, 181 F.2d 320 (CA5 1950); FDIC v. Fruit Growers Service Co., 2 F.D.R. 131, 133 (ED Wash. 1941) (after taxing certain disputed costs against defendant, court noted that the costs could have been avoided by taking advantage of Rule 68); Nabors v. Texas Co., 32 F.Supp. 91, 92 (WD La. 1940) (a defendant may "save himself in the matter of costs if the recovery does not exceed what was tendered" if he proves that he made an offer of judgment). See also Scheriff v. Beck, 452 F.Supp. 1254 (Colo.1978); Waters v. Heublein, Inc., 485 F.Supp. 110 (N.D.Cal.1979).
1
Unfortunately, the cost of litigation in this country furthered by discovery procedures susceptible to gross abuse—has reached the point where many persons and entities simply cannot afford to litigate even the most meritorious claim or defense. See Amendments to the Federal Rules of Civil Procedure, 446 U.S. 995, 999-1001 (1980) (POWELL, J., with whom STEWART and REHNQUIST, JJ., joined, dissenting); ACF Industries, Inc. v. EEOC, 439 U.S. 1081, 1086-1088, 99 S.Ct. 865, 868-869, 59 L.Ed.2d 52 (1979) (POWELL, J., dissenting from denial of certiorari); Janofsky, A.B.A. Attacks Delay and the High Cost of Litigation, 65 A.B.A.J. 1323, 1323-1324 (1979). Cf. Herbert v. Lando, 441 U.S. 153, 177, 99 S.Ct. 1635, 1650, 60 L.Ed.2d 115 (1979).
2
In Roadway Express, Inc. v. Piper, 447 U.S. 752, 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980), we held that the term "costs," as it is used in 28 U.S.C. § 1927, does not incorporate by reference the definition of costs used in Title VII. Nothing in that case is inconsistent with my reasoning here. In Roadway Express, a party sought costs, including an attorney's fee, under § 1927 from opposing counsel who had unreasonably and vexatiously delayed an employment discrimination lawsuit. We concluded that the attorney's fee could not be recovered under § 1927, because Congress intended that section to include only those costs specified in a corresponding section, 28 U.S.C. § 1920. In this case, by contrast, the entitlement to "costs," including an attorney's fee, arises under Rule 68 of the Federal Rules of Civil Procedure. In approving the Federal Rules, Congress appears to have incorporated the definition of costs found in the substantive statute at issue in the litigation. Cf. Fed.Rule Civ.Proc. 54(d).
3
In Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., 540 F.2d 102 (1976) (en banc), the Court of Appeals for the Third Circuit held that the primary determinant of a court-awarded fee—the "lodestar"—should be the amount of time reasonably expended on the matter multiplied by a reasonable hourly rate. The "lodestar" is subject to adjustment based on, inter alia, the quality of the work and the results obtained. Id., at 117-118; accord, Furtado v. Bishop, 635 F.2d 915, 920-924 (CA 1 1980); Copeland v. Marshall, 205 U.S.App.D.C. 390, 403-404, 641 F.2d 880, 893-894 (1980) (en banc). Cf. Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (CA 5, 1974).
4
It may be, of course, that the parties will settle the issue of costs and attorney's fees after the acceptance of the offer, without the need to involve the trial judge. Nothing in this opinion should be read to discourage that practice. But the terms of the offer of judgment must permit the prevailing plaintiff to request the trial judge to award a reasonable fee.
5
Contrary to the suggestion in Justice REHNQUIST's dissenting opinion, post, at 378-379, nothing herein requires prevailing defendants to receive attorney's fees as part of their costs under Rule 68 when a plaintiff rejects an offer of judgment and then ultimately loses on the merits. As I have stated, it is the province of the trial judge to determine the entitlement to, and amount of, an attorney's fee. See n. 3, supra, and accompanying text. Prevailing plaintiffs are entitled to attorney's fees except in unusual circumstances. Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 401-402, 88 S.Ct. 964, 965-966, 19 L.Ed.2d 1263 (1968). A prevailing defendant, on the other hand, is entitled to attorney's fees as part of the costs only when the lawsuit is "frivolous, unreasonable, or without foundation." Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978).
1
The 1948 amendment to Rule 68 added the following two sentences:
"If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer. The fact that an offer is made but not accepted does not preclude a subsequent offer." The Advisory Committee Notes explain that the two new sentences were added to assure "a party the right to make a second offer where the situation permits—as, for example, where a prior offer was not accepted but the plaintiff's judgment is nullified and a new trial ordered, whereupon the defendant desires to make a second offer." Advisory Committee Notes on Amendment to Rules of Civil Procedure, 28 U.S.C.App., pp. 499-500, 5 F.R.D. 433, 483 (1946); 7 J. Moore & J. Lucas, Moore's Federal Practice ¶ 68.01, p. 68-3 (1979). The change in the language of the Rule had nothing to do with whether or not it was intended to operate in a situation where the defendant prevailed.
2
The Minnesota statute referred to by the 1938 Advisory Notes, 2 Minn.Stat. § 9323 (Mason 1927), provided:
"At least ten days before the term at which any civil action shall stand for trial the defendant may serve on the adverse party an offer to allow judgment to be taken against him for the sum, or property, or to the effect therein specified, with costs then accrued. If within ten days thereafter such parties shall give notice that the offer is accepted, he may file
the same, with proof of such notice, and thereupon the clerk shall enter judgment accordingly. Otherwise the offer shall be deemed withdrawn, and evidence thereof shall not be given; and if a more favorable judgment be not recovered no costs shall be allowed, but those of the defendant shall be taxed in his favor." (Emphasis supplied.)
The Montana statute, 4 Mont.Rev.Codes Ann. § 9770 (1935), provided:
"The defendant may, at any time before the trial or judgment, serve upon the plaintiff an offer to allow judgment to be taken against him for the sum or property, or to the effect therein specified. If the plaintiff accept [sic] the offer, and give [sic] notice thereof within five days, he may file the offer, with proof of notice of acceptance, and the clerk must thereupon enter judgment accordingly. If the notice of acceptance be not given, the offer is to be deemed withdrawn, and cannot be given in evidence upon the trial; and if the plaintiff fail [sic] to obtain a more favorable judgment, he cannot recover costs, but he must pay the defendant's costs from the time of the offer." (Emphasis supplied.)
The New York Statute, N.Y.Civ.Prac.Law § 177 (Thompson 1939), provided:
"Before the trial, the defendant may serve upon the plaintiff's attorney a written offer to allow judgment to be taken against him for a sum, or property, or to the effect, therein specified, with costs. If there be two or more defendants, and the action can be severed, a like offer may be made by one or more defendants against whom a separate judgment may be taken. If the plaintiff, within ten days thereafter, serve [sic] upon the defendant's attorney a written notice that he accepts the offer, he may file the summons, complaint, and offer, with proof of acceptance, and thereupon the clerk must enter judgment accordingly. If notice of acceptance be not thus given, the offer cannot be given in evidence upon the trial; but, if the plaintiff fail [sic] to obtain a more favorable judgment, he cannot recover costs from the time of the offer, but must pay costs from that time." (Emphasis supplied.)
3
It should be noted that the commentators on which the Court relies so heavily either do not support its position or simply fail to address it. Contrary to its suggestion, Wright and Miller's treatise assumes that Rule 68 operates in a manner that would allow a prevailing defendant the benefits of the Rule. Their treatise provides: "If the offer is not accepted, and the ultimate judgment is not more favorable than what was offered, the party who made the offer is not liable for costs accruing after the date of the offer." 12 C. Wright & A. Miller, Federal Practice and Procedure § 3001, p. 56 (1973) (emphasis supplied). Thus, Wright and Miller envisioned that costs would be shifted unless the plaintiff recovered a judgment more favorable than the offer—a hurdle that respondent here was unable to clear.
4
The actual text of the offer made by the petitioner to the respondent in this case reads in pertinent part as follows:
"Pursuant to Rule 68 of the Federal Rules of Civil Procedure, defendant hereby offers to allow judgment to be taken against it in this action, in the amount of $450, which shall include attorney's fees, together with costs accrued to date."
5
The nearly 100 Rules of Federal Civil Procedure have numerous and often differing purposes, but it bears repeating that the purpose behind Rule 68, which this case involves, is to promote settlement and thereby diminish the number of trials necessary to resolve the cases which are filed in the federal courts. Were we to hold that attorney's fees were not subject to settlement and compromise (in the same way as the issues of liability, damages, and other remedies) as a part of a Rule 68 offer, we would frustrate the purpose of this Rule. The defendant would be put in the unenviable position of having to make an offer of judgment without knowing what his potential liability in terms of attorney's fees would be over and above the amount of the Rule 68 offer. While traditional "costs" can never be known to a certainty at the time of the making of a Rule 68 offer, knowledgeable counsel for both defendant and plaintiff can assess at least their order of magnitude. Attorney's fees, however, are a different breed of cat, not only because they can be extraordinarily extensive compared to traditional items of costs, but also because neither the plaintiff nor the defendant can know with any degree of certainty how much of the attorney's fees a prevailing plaintiff seeks will be allowed by a trial court exercising its discretion pursuant to Rule 54. Thus to hold that such fees were by definition open-ended and not subject to compromise would mean that an attorney representing a defendant and convinced that an offer pursuant to Rule 68 might well result in a settlement of the case if attorney's fees were subject to settlement and compromise could never confidently persuade his client that it would be in the client's best interest to make such an offer because he would of necessity have to advise the client in cases where attorney's fees are recoverable that such recovery would be over and above the amount of the Rule 68 offer. Such a caveat in the attorney's recommendation will most likely prove to deter the client from making a Rule 68 offer in the first place, with the result that fewer suits will be settled and more will be tried. Such a construction of Rule 68, therefore, hardly furthers the purposes behind the Rule.
| 89
|
450 U.S. 288
101 S.Ct. 1112
67 L.Ed.2d 241
Lonnie Joe CARTER, Petitioner,v.Commonwealth of KENTUCKY.
No. 80-5060.
Argued Jan. 14, 1981.
Decided March 9, 1981.
Syllabus
At petitioner's criminal trial in a Kentucky court in which no testimony was introduced on behalf of the defense, the trial judge refused petitioner's requested jury instruction that "[t]he [defendant] is not compelled to testify and the fact that he does not cannot be used as an inference of guilt and should not prejudice him in any way." On appeal from petitioner's conviction, the Kentucky Supreme Court rejected his argument that the Fifth and Fourteenth Amendments require the trial judge to give the requested instruction, holding that such instruction would have required the judge to "comment upon" the petitioner's failure to testify in violation of a Kentucky statute prohibiting such a comment.
Held: Petitioner had a right to the requested instruction under the privilege against compulsory self-incrimination of the Fifth Amendment as made applicable to the States by the Fourteenth Amendment, a state trial judge having a constitutional obligation, upon proper request, to minimize the danger that the jury will give evidentiary weight to a defendant's failure to testify. Pp. 295-305.
(a) The penalty imposed upon a defendant for the exercise of his constitutional privilege not to testify is severe when there is an adverse comment on his silence, Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, but even without adverse comment, a jury, unless instructed otherwise, may well draw adverse inferences from a defendant's silence. Instructions to the jury on the law are perhaps nowhere more important than in the context of the Fifth Amendment privilege against compulsory self-incrimination. While no judge can prevent jurors from speculating about why a defendant stands mute in the face of a criminal accusation, a judge can, and must, if requested to do so, use the unique power of the jury instruction to reduce that speculation to a minimum. Pp. 299-303.
(b) Kentucky's interest in protecting the defendant is insufficient justification for refusing the requested instruction, since "[i]t would be strange indeed to conclude that this cautionary instruction violates the very constitutional provision it is intended to protect." Lakeside v. Oregon, 435 U.S. 333, 339, 98 S.Ct. 1091, 1094, 53 L.Ed.2d 319. The fact that the jury was instructed to determine petitioner's guilt "from the evidence alone" does not excuse the refusal to give the requested instruction, since a jury, not knowing the technical meaning of "evidence," can be expected to notice a defendant's failure to testify, and, without limiting instructions, to speculate about incriminating inferences from a defendant's silence. Nor was an instruction that the law presumes a defendant to be innocent a substitute for the requested instruction, since it is doubtful that it contributed significantly to the jury's proper understanding of petitioner's failure to testify. And defense counsel's own argument that petitioner did not have to take the stand could not have had the purging effect that the requested instruction would have had. Pp. 303-304.
Ky., 598 S.W.2d 763, reversed and remanded.
Kevin Michael McNally, Frankfort, Ky., for petitioner.
Robert V. Bullock, Frankfort, Ky., for respondent.
Justice STEWART delivered the opinion of the Court.
1
In this case a Kentucky criminal trial judge refused a defendant's request to give the following jury instruction: "The defendant is not compelled to testify and the fact that he does not cannot be used as an inference of guilt and should not prejudice him in any way." The Supreme Court of Kentucky found no error.1 We granted certiorari to consider the petitioner's contention that a defendant, upon request, has a right to such an instruction under the Fifth and Fourteenth Amendments of the Constitution. 449 U.S. 819, 101 S.Ct. 71, 66 L.Ed.2d 21.2
2
* A.
3
In the early morning of December 22, 1978, Officer Deborah Ellison of the Hopkinsville, Kentucky, Police Department, on routine patrol in downtown Hopkinsville, noticed something in the alley between Young's Hardware Store and Edna's Furniture Store. She backed her car up, flashed her spotlight down the alley, and saw two men stooped alongside one of the buildings. The men ran off. Officer Ellison drove her squad car down the alley and found a hole in the side of Young's Hardware Store. She radioed Officer Leroy Davis, whom she knew to be in the area, informing him that two men had fled from the alley.
4
Soon after receiving Ellison's call, Officer Davis saw two men run across a street near where he had been patrolling. The two ran in opposite directions, and Davis proceeded after one of them. Following a chase, during which he twice lost sight of the man he was pursuing, Davis was finally able to stop him. The man was later identified as the petitioner, Lonnie Joe Carter. During the course of the chase, Davis saw the petitioner drop two objects: a gym bag and a radio tuned to a police band. When apprehended, the petitioner was wearing gloves but no jacket. While Davis was pursuing the petitioner, Officer Ellison inspected the alley near the hole in the building wall. She found two jackets, along with some merchandise that had apparently been removed from the hardware store.
5
After arresting the petitioner, Davis brought him to Officer Ellison to see if she could identify him as one of the men she had seen in the alley. Ellison noted that he was of similar height and weight to one of the men in the alley, and that he wore similar clothing, but because it had been too dark to get a good view of the men's faces, she could not make a more positive identification. The petitioner was then taken to police headquarters.
B
6
The petitioner was subsequently indicted for third-degree burglary of Young's Hardware Store. The indictment also charged him with being a persistent felony offender, in violation of Ky.Rev.Stat. § 532.080 (Supp.1980), on the basis of previous felony convictions. At the trial, the voir dire examination of prospective jurors was conducted solely by the judge.3 The prosecutor's opening statement recounted the evidence expected to be introduced against the petitioner. The opening statement of defense counsel began as follows:
7
"Let me tell you a little bit about how this system works. If you listened to Mr. Ruff [the prosecutor] you are probably ready to put Lonnie Joe in the penitentiary. He read you a bill, a true bill that was issued by the Grand Jury. Now, the Grand Jury is a group of people that meet back here in a room and the defendant is not able or not allowed to present any of his testimony before this group of people. The only thing that the Grand Jury hears is the prosecution's proof and I would say approximately what Mr. Ruff has said to you. I suppose that most of you would issue a true bill if Mr. Ruff told you what he has just told you and you didn't have a chance to hear what the defendant had to say for himself.
8
"Now, that is just completely contrary to our system of law. A man, as the Judge has already told you, . . . is innocent until . . . proved guilty . . . ."
9
The prosecution rested after calling Officers Ellison, Davis, another officer, and the owner of Young's Hardware Store. The trial judge then held a conference, outside of the hearing of the jury, to determine whether the petitioner would testify, and whether the prosecutor would be permitted to impeach the petitioner with his prior felony convictions. Defense counsel stated:
10
"Judge, I think possibly the only reservation Mr. Carter might have about testifying would be his impeachment by the use of these previous offenses that he is aware of and has told me about. I would like to explain to him in front of you what this all means." Counsel then explained to the petitioner that if he testified the Commonwealth could "use the fact that you have several offenses on your record . . . [to] impeach your . . . propensity to tell the truth . . . ." Counsel added that in his experience this was "a heavy thing; it is very serious, and I think juries take it very seriously . . . ." The judge indicated that under Kentucky law he had "discretionary control" over the use of prior felony convictions for impeachment, and cautioned the prosecutor that he might be inviting a reversal if he introduced more than three prior felony convictions, strongly suggesting that the prosecutor rely on the most recent convictions only. The judge then addressed the petitioner:
11
"THE COURT: . . . You can sit there and say nothing and it cannot be mentioned if you don't testify but if you do these other convictions can be shown to indicate to the jury that maybe you are not telling the truth.
12
* * * * *
13
"THE COURT: . . . [Y]ou talk to Mr. Rogers [defense counsel] and then tell us what you want to do.
14
* * * * *
15
"THE COURT: Now, Lonnie, you have come back after a private conference with your lawyer, Mr. Rogers[,] and you have told me you have decided not to take the stand?
16
"LONNIE JOE CARTER: Yes, Sir."4
17
Upon returning to open court, the petitioner's counsel advised the court that there would be no testimony introduced on behalf of the defense. He then requested that the following instruction be given to the jury:
18
"The [defendant] is not compelled to testify and the fact that he does not cannot be used as an inference of guilt and should not prejudice him in any way."
19
The trial court refused the request.
20
The prosecutor began his summation by stating that he intended to review the evidence "that we were privileged to hear," and cautioned the jury to "[c]onsider only what you have heard up here as evidence in this case and not something that you might speculate happened or could have happened. . . ." After mentioning admissions that the petitioner had allegedly made at police headquarters,5 the prosecutor argued:
21
"Now that is not controverted whatsoever. It is not controverted that Lonnie Joe is the man that Miss Ellison saw here. It is not controverted that Lonnie Joe is the man that Davis caught up here (again pointing to blackboard sketch). It is not controverted that Lonnie Joe had that bag (pointing to bag on reporter's desk) and that radio (pointing to radio) with him. It is not controverted that both of those jackets belong to Lonnie Joe. At least, that is what he told the police department. But, at any rate, that is all we have to go on . . . ."
22
The prosecutor continued that if there was a reasonable explanation why the petitioner ran when he saw the police, it was "not in the record."6
23
The jury found the petitioner guilty, recommending a sentence of two years. The recidivist phase of the trial followed. The prosecutor presented evidence of the previous felony convictions that had been listed in the indictment. The defense presented no evidence, and the jury found the petitioner guilty as a persistent offender, sentencing him to the maximum term of 20 years in prison.
24
Upon appeal, the Kentucky Supreme Court rejected the argument that the Fifth and Fourteenth Amendments to the United States Constitution require that a criminal trial judge give the jury an instruction such as was requested here. In concluding that the trial judge did not commit error by refusing to give the requested instruction, the court pointed to Ky. Rev. Stat. § 421.225 (Supp.1980), which provides:
25
"In any criminal or penal prosecution the defendant, on his own request, shall be allowed to testify in his own behalf, but his failure to do so shall not be commented upon or create any presumption against him."
26
Holding that the jury instruction requested by counsel would have required the trial judge to "comment upon" the defendant's failure to testify, the court cited its previous decision in Green v. Commonwealth, Ky., 488 S.W.2d 339, as controlling.
II
A.
27
The constitutional question presented by this case is one the Court has specifically anticipated and reserved, first in Griffin v. California, 380 U.S. 609, 615, n. 6, 85 S.Ct. 1229, 1233, n. 6, 14 L.Ed.2d 106, and more recently in Lakeside v. Oregon, 435 U.S. 333, 337, 98 S.Ct. 1091, 1093, 55 L.Ed.2d 319. But, as a question of federal statutory law, it was resolved by a unanimous Court over 40 years ago in Bruno v. United States, 308 U.S. 287, 60 S.Ct. 198, 84 L.Ed. 451. The petitioner in Bruno was a defendant in a federal criminal trial who had requested a jury instruction similar to the one requested by the petitioner in this case.7 The Court, addressing the question whether Bruno "had the indefeasible right" that his proffered instruction be given to the jury, decided that a federal statute,8 which prohibits the creation of any presumption from a defendant's failure to testify, required that the "substance of the denied request should have been granted . . . ." Id., at 294,9 60 S.Ct., at 200.
28
The Griffin case came here shortly after the Court had held that the Fifth Amendment command that no person "shall be compelled in any criminal case to be a witness against himself" is applicable against the States through the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653.10 In Griffin, the Court considered the question whether it is a violation of the Fifth and Fourteenth Amendments to invite a jury in a state criminal trial to draw an unfavorable inference from a defendant's failure to testify. The trial judge had there instructed the jury that "a defendant has a constitutional right not to testify," and that the defendant's exercise of that right "does not create a presumption of guilt or by itself warrant an inference of guilt" nor "relieve the prosecution of any of its burden of proof." But the instruction additionally permitted the jury to "take that failure into consideration as tending to indicate the truth of [the State's] evidence and as indicating that among the inferences that may be reasonably drawn therefrom those unfavorable to the defendant are the more probable." 380 U.S., at 610, 85 S.Ct., at 1230.
29
This Court set aside Griffin's conviction because "the Fifth Amendment . . . forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt." Id., at 615, 85 S.Ct., at 1233.11 It condemned adverse comment on a defendant's failure to testify as reminiscent of the " 'inquisitorial system of criminal justice, id., at 614, 85 S.Ct., at 1232, quoting Murphy v. Waterfront Comm'n, 378 U.S. 52, 55, 84 S.Ct. 1594, 1596, 12 L.Ed.2d 678, and concluded that such comment effected a court-imposed penalty upon the defendant that was unacceptable because "[i]t cuts down on the privilege by making its assertion costly." 380 U.S., at 614, 85 S.Ct., at 1232.12
30
The Court returned to a consideration of the Fifth Amendment and jury instructions in Lakeside v. Oregon, 435 U.S. 333, 98 S.Ct. 1091, 55 L.Ed.2d 319, where the question was whether the giving of a "no-inference" instruction over defense objection violates the Constitution. Despite trial counsel's complaint that his strategy was to avoid any mention of his client's failure to testify, a no-inference instruction13 was given by the trial judge. The petitioner contended that when a trial judge in any way draws the jury's attention to a defendant's failure to testify, unless the defendant acquiesces, the court invades the defendant's privilege against compulsory self-incrimination. This argument was rejected.
31
The Lakeside Court reasoned that the Fifth and Fourteenth Amendments bar only adverse comment on a defendant's failure to testify, and that "a judge's instruction that the jury must draw no adverse inferences of any kind from the defendant's exercise of his privilege not to testify is 'comment' of an entirely different order." Id., at 339, 98 S.Ct., at 1094. The purpose of such an instruction, the Court stated, "is to remove from the jury's deliberations any influence of unspoken adverse inferences," and "cannot provide the pressure on a defendant found impermissible in Griffin." Ibid.
32
The Court observed in Lakeside that the petitioner's argument there rested on "two very doubtful assumptions:"
33
First, that the jurors have not noticed that the defendant did not testify and will not, therefore, draw adverse inferences on their own. Second, that the jurors will totally disregard the instruction, and affirmatively give weight to what they have been told not to consider at all. Federal constitutional law cannot rest on speculative assumptions so dubious as these." Id., at 340, 98 S.Ct., at 1095 (footnote omitted).
34
Finally, the Court stressed that "[t]he very purpose" of a jury instruction is to direct the jurors' attention to important legal concepts "that must not be misunderstood, such as reasonable doubt and burden of proof," and emphasized that instruction "in the meaning of the privilege against compulsory self-incrimination is no different." Ibid.
B
35
The inclusion of the privilege against compulsory self-incrimination14 in the Fifth Amendment
36
"reflects many of our fundamental values and most noble aspirations: our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; . . . our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates 'a fair state-individual balance by requiring the government . . ., in its contest with the individual to shoulder the entire load,' . . .; our distrust of self-deprecatory statements; and our realization that the privilege, while sometimes 'a shelter to the guilty,' is often 'a protection to the innocent.' " Murphy v. Waterfront Comm'n, supra, at 55, 84 S.Ct., at 1596.15
37
The principles enunciated in our cases construing this privilege, against both statutory and constitutional backdrops, lead unmistakably to the conclusion that the Fifth Amendment requires that a criminal trial judge must give a "no-adverse-inference" jury instruction when requested by a defendant to do so.
38
In Bruno, the Court declared that the failure to instruct as requested was not a mere "technical erro[r] . . . which do[es] not affect . . . substantial rights . . . ." It stated that the "right of an accused to insist on" the privilege to remain silent is "[o]f a very different order of importance . . ." from the "mere etiquette of trials and . . . the formalities and minutiae of procedure." 308 U.S., at 293-294, 60 S.Ct., at 200. Thus, while the Bruno Court relied on the authority of a federal statute, it is plain that its opinion was influenced by the absolute constitutional guarantee against compulsory self-incrimination.16
39
The Griffin case stands for the proposition that a defendant must pay no court-imposed price for the exercise of his constitutional privilege not to testify. The penalty was exacted in Griffin by adverse comment on the defendant's silence; the penalty may be just as severe when there is no adverse comment, but when the jury is left to roam at large with only its untutored instincts to guide it, to draw from the defendant's silence broad inferences of guilt. Even without adverse comment, the members of a jury, unless instructed otherwise, may well draw adverse inferences from a defendant's silence.17
40
The significance of a cautionary instruction was forcefully acknowledged in Lakeside, where the Court found no constitutional error even when a no-inference instruction was given over a defendant's objection. The salutary purpose of the instruction, "to remove from the jury's deliberations any influence of unspoken adverse inferences," was deemed so important that it there outweighed the defendant's own preferred tactics.18
41
We have repeatedly recognized that "instructing a jury in the basic constitutional principles that govern the administration of criminal justice," Lakeside, 435 U.S., at 342, 98 S.Ct., at 1096, is often necessary.19 Jurors are not experts in legal principles; to function effectively, and justly, they must be accurately instructed in the law. Such instructions are perhaps nowhere more important than in the context of the Fifth Amendment privilege against compulsory self-incrimination, since "[t]oo many, even those who should be better advised, view this privilege as a shelter for wrongdoers. They too readily assume that those who invoke it are . . . guilty of crime . . . ." Ullman v. United States, 350 U.S. 422, 426, 76 S.Ct. 497, 500, 100 L.Ed. 511. And, as the Court has stated, "we have not yet attained that certitude about the human mind which would justify us in . . . a dogmatic assumption that jurors, if properly admonished, neither could nor would heed the instructions of the trial court . . . ." Bruno, 308 U.S., at 294, 60 S.Ct., at 200.20
42
A trial judge has a powerful tool at his disposal to protect the constitutional privilege—the jury instruction—and he has an affirmative constitutional obligation to use that tool when a defendant seeks its employment. No judge can prevent jurors from speculating about why a defendant stands mute in the face of a criminal accusation, but a judge can, and must, if requested to do so, use the unique power of the jury instruction to reduce that speculation to a minimum.21
C
43
The only state interest advanced by Kentucky in refusing a request for such a jury instruction is protection of the defendant: "the requested 'no inference' instruction . . . would have been a direct 'comment' by the court and would have emphasized the fact that the accused had not testified in his own behalf." Green v. Commonwealth, Ky., 488 S.W.2d, at 341. This purported justification was specifically rejected in the Lakeside case, where the Court noted that "[i]t would be strange indeed to conclude that this cautionary instruction violates the very constitutional provision it is intended to protect." 435 U.S., at 339, 98 S.Ct., at 1094.
44
Kentucky also argues that in the circumstances of this case the jurors knew they could not make adverse inferences from the petitioner's election to remain silent because they were instructed to determine guilt "from the evidence alone," and because failure to testify is not evidence. The Commonwealth's argument is unpersuasive. Jurors are not lawyers; they do not know the technical meaning of "evidence." They can be expected to notice a defendant's failure to testify, and, without limiting instruction, to speculate about incriminating inferences from a defendant's silence.
45
The other trial instructions and arguments of counsel that the petitioner's jurors heard at the trial of this case were no substitute for the explicit instruction that the petitioner's lawyer requested. Although the jury was instructed that "[t]he law presumes a defendant to be innocent," it may be doubted that this instruction contributed in a significant way to the jurors' proper understanding of the petitioner's failure to testify. Without question, the Fifth Amendment privilege and the presumption of innocence are closely aligned. But these principles serve different functions, and we cannot say that the jury would not have derived "significant additional guidance," Taylor v. Kentucky, 436 U.S. 478, 484, 98 S.Ct. 1930, 1934, 56 L.Ed.2d 468, from the instruction requested. See United States v. Bain, 596 F.2d 120 (CA5); United States v. English, 409 F.2d 200, 201 (CA3). And most certainly, defense counsel's own argument that the petitioner "doesn't have to take the stand . . . [and] doesn't have to do anything" cannot have had the purging effect that an instruction from the judge would have had. "[A]rguments of counsel cannot substitute for instructions by the court." Taylor v. Kentucky, supra, at 489, 98 S.Ct., at 1936.22
46
Finally, Kentucky argues that because the evidence of petitioner's guilt was "overwhelming and could not be explained," any constitutional error committed by the state courts was harmless, Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. While it is arguable that a refusal to give an instruction similar to the one that was requested here can never be harmless, cf. Bruno, supra, at 293, 60 S.Ct., at 200, we decline to reach the issue, because it was not presented to or considered by the Supreme Court of Kentucky. See Sandstrom v. Montana, 442 U.S. 510, 527, 99 S.Ct. 2450, 2461, 61 L.Ed.2d 39.
III
47
The freedom of a defendant in a criminal trial to remain silent "unless he chooses to speak in the unfettered exercise of his own will" is guaranteed by the Fifth Amendment and made applicable to state criminal proceedings through the Fourteenth. Malloy v. Hogan, 378 U.S., at 8, 84 S.Ct., at 1493. And the Constitution further guarantees that no adverse inferences are to be drawn from the exercise of that privilege. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106. Just as adverse comment on a defendant's silence "cuts down on the privilege by making its assertion costly," id., at 614, 85 S.Ct., at 1232, the failure to limit the jurors' speculation on the meaning of that silence, when the defendant makes a timely request that a prophylactic instruction be given, exacts an impermissible toll on the full and free exercise of the privilege. Accordingly, we hold that a state trial judge has the constitutional obligation, upon proper request, to minimize the danger that the jury will give evidentiary weight to a defendant's failure to testify.
48
For the reasons stated, the judgment is reversed, and the case is remanded to the Supreme Court of Kentucky for further proceedings not inconsistent with this opinion.
49
It is so ordered.
50
Justice POWELL, concurring.
51
Although joining the opinion of the Court, I write briefly to make clear that, for me, this result is required by precedent, not by what I think the Constitution should require.
52
The Fifth Amendment, applicable to the States through the Fourteenth, provides that no person "shall be compelled in any criminal case to be a witness against himself." The question in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), was whether this proscription was violated if jurors were told that they could draw inferences from a defendant's failure to testify. The Court held that neither the judge nor the prosecutor could suggest that jurors draw such inferences. A defendant who chooses not to testify hardly can claim that he was compelled to testify. The Court also held, nevertheless, that any "penalty imposed by courts for exercising [this] constitutional privilege" cannot be tolerated because "[i]t cuts down on the privilege by making its assertion costly." Id., at 614, 85 S.Ct., at 1232.
53
Justice STEWART's dissenting opinion in Griffin, in which Justice WHITE joined, responded persuasively to this departure from the language and purpose of the Self-Incrimination Clause. Justice STEWART wrote:
54
"We must determine whether the petitioner has been 'compelled . . . to be a witness against himself.' Compulsion is the focus of the inquiry. Certainly, if any compulsion be detected in the California procedure, it is of a dramatically different and less palpable nature than that involved in the procedures which historically gave rise to the Fifth Amendment guarantee . . . .
55
"I think that the Court in this case stretches the concept of compulsion beyond all reasonable bounds, and that whatever compulsion may exist derives from the defendant's choice not to testify, not from any comment by court or counsel. . . . [T]he jury will, of course, realize th[e] quite evident fact [that the defendant has chosen not to testify], even though the choice goes unmentioned." Id., at 620-621, 85 S.Ct., at 1236-1237.
56
The one person who usually knows most about the critical facts is the accused. For reasons deeply rooted in the history we share with England, the Bill of Rights included the Self-Incrimination Clause, which enables a defendant in a criminal trial to elect to make no contribution to the factfinding process. But nothing in the Clause requires that jurors not draw logical inferences when a defendant chooses not to explain incriminating circumstances. Jurors have been instructed that the defendant is presumed to be innocent and that this presumption can be overridden only by evidence beyond a reasonable doubt. California Chief Justice Traynor commented that judges and prosecutors should be able to explain that "a jury [may] draw unfavorable inferences from the defendant's failure to explain or refute evidence when he could reasonably be expected to do so. Such comment would not be evidence and would do no more than make clear to the jury the extent of its freedom in drawing inferences." Traynor, The Devils of Due Process in Criminal Detection, Detention, and Trial, 33 U.Chi.L.Rev. 657, 677 (1966); accord, Schaefer, Police Interrogation and the Privilege Against Self-Incrimination, 61 Nw.U.L.Rev. 506, 520 (1966).
57
I therefore would have joined Justices STEWART and WHITE in dissent in Griffin. But Griffin is now the law, and based on that case the present petitioner was entitled to the jury instruction that he requested. I therefore join the opinion of the Court.
58
Justice STEVENS, with whom Justice BRENNAN joins, concurring.
59
While I join the Court's opinion, I add this comment to emphasize that today's holding is limited to cases in which the defendant has requested that the jury be instructed not to draw an inference of guilt from the defendant's failure to testify. I remain convinced that the question whether such an instruction should be given in any specific case—like the question whether the defendant should testify on his own behalf—should be answered by the defendant and his lawyer, not by the State. See Lakeside v. Oregon, 435 U.S. 333, 343-348, 98 S.Ct. 1091, 1096-1099, 53 L.Ed.2d 319 (1978) (STEVENS, J., dissenting).
60
Justice REHNQUIST, dissenting.
61
The Court has reached its conclusion in this case by a series of steps only the first of which is traceable to the United States Constitution. Yet since the result of the Court's decision is to reverse the judgment of the Supreme Court of Kentucky, the decision must obviously rest upon the fact that the decision of that court is inconsistent with the United States Constitution.
62
As the Court points out, the constitutional question presented by this case is one the Court has specifically anticipated and reserved, first in Griffin v. California, 380 U.S. 609, 615, n. 6, 85 S.Ct. 1229, 1233, n. 6, 14 L.Ed.2d 106 (1965), and more recently in Lakeside v. Oregon, 435 U.S. 333, 98 S.Ct. 1091, 53 L.Ed.2d 319 (1978).
63
But the Court, with a singular paucity of reasoning, points to the fact that in a case arising in the federal system, a defendant requesting a charge similar to that which petitioner requested here was held by this Court to be entitled to it. The differences, of course, are obvious: In the first place, the case of Bruno v. United States, 308 U.S. 287, 60 S.Ct. 198, 84 S.Ct. 451 (1939), was governed by the federal statute there cited:
64
"The accused could 'at his own request but not otherwise be a competent witness. And his failure to make such a request shall not create any presumption against him.' Such was the command of the law-makers. The only way Congress could provide that abstention from testifying should not tell against an accused was by an implied direction to judges to exercise their traditional duty in guiding the jury by indicating the considerations relevant to the latter's verdict on the facts. . . . Concededly the charge requested by Bruno was correct. The Act of March 16, 1878, gave him the right to invoke it." Id., at 292-293, 60 S.Ct., at 199-200.
65
Here, of course, the Act of March 16, 1878, does not attempt to govern the procedures or instructions which shall be given in the trial courts of Kentucky. Therefore the Act of Congress which, in Bruno, was stated to entitle a defendant to a charge that no presumption should arise from his refusal to take the stand, is of no relevance whatever to the Court's decision in this case.
66
If we begin with the relevant provisions of the Constitution, which is where an unsophisticated lawyer or layman would probably think we should begin, we find the provision in the Fifth Amendment stating that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself . . . ." Until the mysterious process of transmogrification by which this Amendment was held to be "incorporated" and made applicable to the States by the Fourteenth Amendment in Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), the provision itself would not have regulated the conduct of criminal trials in Kentucky. But even if it did, no one here claims that the defendant was forced to take the stand against his will or to testify against himself inconsistently with the provisions of the Fifth Amendment. The claim is rather that in Griffin v. California, supra, the Court, building on the language of the Constitution itself and on Malloy, supra, held that a charge to the effect that any evidence or facts adduced against the defendant which he could be reasonably expected to deny or explain could be taken into consideration by the jury violated the constitutional privilege against compulsory self-incrimination. The author of the present opinion dissented from that holding, stating:
67
"The formulation of procedural rules to govern the administration of criminal justice in the various States is properly a matter of local concern. We are charged with no general supervisory power over such matters; our only legitimate function is to prevent violations of the Constitution's commands." 380 U.S., at 623, 85 S.Ct., at 1237.
68
But even Griffin, supra, did not go as far as the present opinion, for as that opinion makes clear it left open the question of whether a state-court defendant was entitled as a matter of right to a charge that his refusal to take the stand should not be taken into consideration against him by the jury. The Court now decides that he is entitled to such a charge, and, I believe, in doing so, wholly retreats from the statement in the Griffin dissent that "[t]he formulation of procedural rules to govern the administration of criminal justice in the various States is properly a matter of local concern."
69
The Court's opinion states, ante, at 301, that "[t]he Griffin case stands for the proposition that a defendant must pay no court-imposed price for the exercise of his constitutional privilege not to testify." Such Thomistic reasoning is now carried from the constitutional provision itself, to the Griffin case, to the present case, and where it will stop no one can know. The concept of "burdens" and "penalties" is such a vague one that the Court's decision allows a criminal defendant in a state proceeding virtually to take from the trial judge any control over the instructions to be given to the jury in the case being tried. I can find no more apt words with which to conclude this dissent than those stated by Justice Harlan, concurring in the Court's opinion in Griffin:
70
"Although compelled to concur in this decision, I am free to express the hope that the Court will eventually return to constitutional paths which, until recently, it has followed throughout its history." 380 U.S., at 617, 85 S.Ct., at 1234.
1
The per curiam memorandum opinion of the Supreme Court of Kentucky, Carter v. Commonwealth, No. 79-SC-452-MR, May 13, 1980, is unreported. But the court's affirmance order is reported in 598 S.W.2d 763.
2
Kentucky is one of at least five States that prohibit giving such an instruction to the jury. Others are Minnesota, see State v. Sandve, 279 Minn. 229, 232-234, 156 N.W.2d 230, 233-234, but see State v. Grey, Minn., 256 N.W.2d 74, 77-78 (the instruction may be necessary in some cases to prevent manifest injustice); Nevada, see Jackson v. State, 84 Nev. 203, 208, 438 P.2d 795, 798, Nev.Rev.Stat. § 175.181 (1979); Oklahoma, see Brannin v. State, 375 P.2d 276, 279-280 (Crim.App.); Hanf v. State, 560 P.2d 207, 212 (Crim.App.); and Wyoming, see Kinney v. State, 36 Wyo. 466, 472, 256 P. 1040, 1042. A few States have a statutory requirement that such an instruction be given to the jury unless the defendant objects. See e. g., Conn. Gen. Stat. § 54-84 (1958). The majority of the States, by judicial pronouncement, require that a defense request for such a jury instruction be honored. See, e. g., Woodard v. State, 234 Ga. 901, 218 S.E.2d 629.
3
After reading the indictment, and inquiring about possible sources of prejudice, the judge told the venire:
"The fact that this man is under a charge or has been indicted has no weight against him as evidence. It is not evidence of his guilt and is not to be considered by you as evidence of his guilt. It is simply a part of the court process which starts, as I have said, the wheels turning to get the case started to be tried. It means nothing more than that. He sits there before you today presumed by the law to be as innocent as anyone else in this courtroom. I want you to fully understand that. Sometimes it is not easy to do, but you are to put out of your mind the fact that he is accused of this crime to the point where you will consider him in any way guilty until and unless the Commonwealth meets its burden and by that I mean the Commonwealth must prove his guilt to your satisfaction beyond a reasonable doubt and if they fail to do that, you should find him not guilty. . ."
4
Defense counsel summarized his private conversation with his client for the record, observing that "the advice of counsel to Mr. Carter was that in plain terms he was between a rock and hard place. . . ." If the petitioner testified he would be impeached and "if he didn't testify the jury[,] whether Mr. Ruff comment[ed] on it or not would probably use that against him."
5
These included the alleged admission that both jackets found in the alley belonged to him.
6
Defense counsel began his closing argument as follows:
"Ladies and Gentlemen of the jury, I am sure you all right now are wondering well what has happened? Why didn't Mr. Carter take the stand and testify? Let me tell you. The judge just read to you that the man is presumed innocent and that it is up to the prosecution to prove him guilty beyond a reasonable doubt. He doesn't have to take the stand in his own behalf. He doesn't have to do anything."
7
Bruno asked the trial judge to instruct the jury as follows:
"The failure of any defendant to take the witness stand and testify in his own behalf, does not create any presumption against him; the jury is charged that it must not permit that fact to weigh in the slightest degree against any such defendant, nor should this fact enter into the discussions or deliberations of the jury in any manner." 308 U.S., at 292, 60 S.Ct., at 199.
8
Act of Mar. 16, 1878, ch. 37, 20 Stat. 30, now 18 U.S.C. § 3481, which states in pertinent part:
"In a trial of all persons . . . [the defendant] shall, at his own request, be a competent witness. His failure to make such a request shall not create any presumption against him."
9
At common law, defendants in criminal trials could not be compelled to furnish evidence against themselves, but they were also not permitted to testify. In the context of the original enactment of the federal statute found dispositive in the Bruno case, this Court commented on the alteration of this common-law rule: "This rule, while affording great protection to the accused against unfounded accusation, in many cases deprived him from explaining [incriminating] circumstances . . . . To relieve him from this embarrassment the law was passed . . . . [H]e is by the act in question permitted . . . to testify. . . ." Wilson v. United States, 149 U.S. 60, 65-66, 13 S.Ct. 765, 766, 37 L.Ed. 650. Following enactment of the federal statute, the States followed suit with similar laws. See Dills, The Permissibility of Comment on the Defendant's Failure to Testify in His Own Behalf in Criminal Proceedings, 3 Wash.L.Rev. 161, 164-165 (1928); 8 J. Wigmore, Evidence § 2272, p. 427 (J. McNaughton rev. 1961).
The issue in Wilson, supra, was whether it was error for the prosecutor to comment adversely on the defendant's failure to testify. The Court unanimously held that it was, observing that "[n]othing could have been more effective with the jury to induce them to disregard entirely the presumption of innocence to which by the law he was entitled. . . ." 149 U.S., at 66, 13 S.Ct., at 766. As later in Bruno, however, the Court did not reach any Fifth Amendment issue.
10
The Malloy case overruled Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97, and Adamson v. California, 332 U.S. 46, 67 S.Ct. 1672, 91 L.Ed. 1903, both of which had "adhered to the position that the Federal Constitution does not require the States to accord the Fifth Amendment privilege against self-incrimination." Tehan v. United States ex rel. Shott, 382 U.S. 406, 412, 86 S.Ct. 459, 462, 15 L.Ed.2d 453. Malloy established that the same standards determine the validity of claims of Fifth Amendment privilege "whether . . . in a state or federal court." 378 U.S., at 11, 84 S.Ct., at 1495.
11
The Court in the Griffin case expressly reserved decision "on whether an accused can require . . . that the jury be instructed that his silence must be disregarded." 380 U.S., at 615, n. 6, 85 S.Ct., at 1233, n. 6.
12
In Tehan v. United States ex rel. Shott, supra, it was decided that Griffin was not to be given retroactive application.
13
The Lakeside trial judge gave the following instruction to the jury:
"Under the laws of this State a defendant has the option to take the witness stand in his or her own behalf. If a defendant chooses not to testify, such a circumstance gives rise to no inference or presumption against the defendant, and this must not be considered by you in determining the question of guilt or innocence." 435 U.S., at 335, 98 S.Ct., at 1092.
14
For the history and development of the privilege, which has its roots in English and American revulsion against the inquisitorial practices of the Star Chamber and High Commission, see L. Levy, Origins of the Fifth Amendment (1968); E. Cleary, McCormick on Evidence § 114 (2d ed. 1972); 8 J. Wigmore, Evidence § 2250 (J. McNaughton rev. 1961).
15
The Court has recognized that there are many reasons unrelated to guilt or innocence for declining to testify:
"It is not every one who can safely venture on the witness stand though entirely innocent of the charge against him. Excessive timidity, nervousness when facing others and attempting to explain transactions of a suspicious character, and offences charged against him, will often confuse and embarrass him to such a degree as to increase rather than remove prejudices against him. It is not every one, however honest, who would, therefore, willingly be placed on the witness stand." Wilson v. United States, 149 U.S., at 66, 13 S.Ct., at 766.
Other reasons include the fear of impeachment by prior convictions (the petitioner's fear in the present case), or by other damaging information not necessarily relevant to the charge being tried, Griffin, 380 U.S., at 615, 85 S.Ct., at 1233, and reluctance to "incriminate others whom [defendants] either love or fear," Lakeside, 435 U.S., at 344, n. 2, 98 S.Ct., at 1097 n. 2 (dissenting opinion).
16
In Griffin, the Court relied on the statutory opinion in Wilson, replacing the words "act" and "statute" with the words "Fifth Amendment." 380 U.S., at 613, 85 S.Ct., at 1232. The same can be done here with respect to the Court's opinion in Bruno : when "Congress" is replaced with "the Fifth Amendment," "the spirit of the Self-Incrimination Clause is reflected." Griffin, 380 U.S., at 613-614, 85 S.Ct., at 1232-1233.
17
Indeed, the dissenting opinion in Griffin suggested that more harm may flow from the lack of guidance to the jury on the meaning of the Fifth Amendment privilege than from reasonable comment upon the exercise of that privilege. With specific reference to decisions from Kentucky and one other State, the dissenters observed that "[w]ithout limiting instructions, the danger exists that the inferences drawn by the jury may be unfairly broad." Id., at 623, 85 S.Ct., at 1237. The Court in Griffin indicated no disagreement with this view.
18
It has been almost universally thought that juries notice a defendant's failure to testify. "[T]he jury will, of course, realize this quite evident fact, even though the choice goes unmentioned. . . . [It is] a fact inescapably impressed on the jury's consciousness." Griffin, supra, at 621, 622, 85 S.Ct., at 1237 (dissenting opinion). In Lakeside the Court cited an acknowledged authority's statement that " '[t]he layman's natural first suggestion would probably be that the resort to privilege in each instance is a clear confession of crime.' " 435 U.S., at 340, n. 10, 85 S.Ct., at 1095, n. 10, quoting 8 J. Wigmore, Evidence § 2272, p. 426 (J. McNaughton rev. 1961).
19
In Taylor v. Kentucky, 436 U.S. 478, 98 S.Ct. 1930, 56 L.Ed.2d 468, the Court held that the Due Process Clause requires that instructions be given on the presumption of innocence and the lack of evidentiary significance of an indictment. The Court recognized that an instruction on the presumption of innocence has a "salutary effect upon lay jurors," and that "the ordinary citizen well may draw significant additional guidance" from such an instruction. Id., at 484, 98 S.Ct., at 1934. The Court stressed the "purging" effect of the instruction and the need to protect "the accused's constitutional right to be judged solely on the basis of proof adduced at trial." Id., at 486, 98 S.Ct., at 1935. The same can be said, of course, with respect to the privilege of remaining silent. Indeed, the claim is even more compelling here than in Taylor, where the dissenting opinion noted that "the omission [in Taylor's trial] did not violate a specific constitutional guarantee, such as the privilege against compulsory self-incrimination." Id., at 492, 98 S.Ct., at 1938 (STEVENS, J.) (footnote omitted).
20
"It is obvious that under any system of jury trials the influence of the trial judge on the jury is necessarily and properly of great weight, and that his lightest work or intimation is received with deference, and may prove controlling." Starr v. United States, 153 U.S. 614, 626, 14 S.Ct. 919, 923, 38 L.Ed. 841. For modern empirical support of this longstanding assumption, see Reed, Jury Simulation: The Impact of Judge's Instructions and Attorney Tactics on Decisionmaking, 71 J.Crim.L. & C. 68 (1980); Bridgeman & Marlowe, 64 J. Applied Psychology 91 (1979); Cornish & Sealy, Juries and the Rules of Evidence, 1973 Crim.L.Rev. 208, 217-218, 222; Forston, Judge's Instructions: A Quantitative Analysis of Jurors' Listening Comprehension, 18 Today's Speech No. 4, p. 34 (1970).
21
The importance of a no-inference instruction is underscored by a recent national public opinion survey conducted for the National Center for State Courts, revealing that 37% of those interviewed believed that it is the responsibility of the accused to prove his innocence. 64 A.B.A.J. 653 (1978).
22
See n. 20, supra.
| 01
|
450 U.S. 311
101 S.Ct. 1124
67 L.Ed.2d 258
CHICAGO AND NORTH WESTERN TRANSPORTATION COMPANY, Petitioner,v.KALO BRICK & TILE COMPANY.
No. 79-1336.
Argued Dec. 9, 1980.
Decided March 9, 1981.
Syllabus
The Interstate Commerce Act authorizes the Interstate Commerce Commission (ICC) to regulate interstate rail carriers' abandonment of railroad lines, including branch lines. Under the Act, no such carrier may abandon a line unless it first obtains a certificate from the ICC that the present or future public convenience and necessity permit such an abandonment. After petitioner interstate rail carrier's branch line in Iowa had been damaged by mud slides, it ultimately decided not to repair, and to stop using, the line, so notified respondent brick manufacturer, which had shipped its products over the line, and applied to the ICC for a certificate permitting it to abandon the line. The ICC granted the application, finding that petitioner had abandoned the line due to conditions beyond its control, that further repairs would not have been sufficient to insure continuous operation, that the abandonment was not "willful," that respondent had no right to insist that the line be maintained solely for its use, and that continued operation would be an unnecessary burden on petitioner and on interstate commerce. Respondent had appeared to oppose the application but never perfected its filing before the ICC and did not seek judicial review of the ICC's decision, but, instead, brought a damages action in an Iowa state court while the abandonment application was still pending. It alleged that petitioner had violated an Iowa statute and state common law by refusing to provide cars on the branch line, by negligently failing to maintain the roadbed, and by tortiously interfering with respondent's contractual relations with its customers. The state trial court dismissed the action on the ground that the Interstate Commerce Act pre-empted state law as to the matters in contention. The Iowa Court of Appeals reversed, ruling that the state abandonment law was not pre-empted and that the state and federal schemes complemented one another.
Held: The Interstate Commerce Act precludes a shipper from pressing a state-court action for damages against a regulated rail carrier when, as here, the ICC, in approving the carrier's application for abandonment, reaches the merits of the matters the shipper seeks to raise in state court. Pp. 317-332.
(a) "[T]here can be no divided authority over interstate commerce, and . . . the acts of Congress on that subject are supreme and exclusive." Missouri Pacific R. Co. v. Stroud, 267 U.S. 404, 408, 45 S.Ct. 243, 245, 69 L.Ed. 683. Consequently, state efforts to regulate commerce must fall when they conflict with or interfere with federal authority over the same activity. Pp. 317-319.
(b) The ICC's authority under the Interstate Commerce Act to regulate railroad line abandonments is exclusive and plenary. This authority is critical to the congressional scheme, which contemplates comprehensive administrative regulation of interstate commerce. The Act's structure makes it clear that Congress intended that an aggrieved shipper should seek relief in the first instance from the ICC. Pp. 319-323.
(c) Both the letter and spirit of the Interstate Commerce Act are inconsistent with Iowa law as construed by the Iowa Court of Appeals. That court's decision amounts to a holding that a State can impose sanctions upon a regulated carrier for doing that which only the ICC has the power to declare unlawful or unreasonable. A system under which each State could, through its courts, impose on railroad carriers its own version of reasonable service requirements could hardly be more at odds with the uniformity contemplated by Congress in enacting the Interstate Commerce Act. Even though the abandonment approval did not come here until after respondent filed its civil suit, it would be contrary to the language of the statute to permit litigation challenging the lawfulness of the carrier's actions to go forward when the ICC has expressly found them to be reasonable. Accordingly, Iowa's statutory cause of action for failure to furnish cars cannot be asserted against an interstate rail carrier on the facts of this case. The same reasoning applies to respondent's asserted common-law causes of action, because they, too, are essentially attempts to litigate the issues underlying petitioner's abandonment of the branch line in issue. The questions respondent seeks to raise in the state court—whether roadbed maintenance was negligent or reasonable and whether petitioner abandoned its line with some tortious motive—are precisely the sorts of concerns that Congress intended the ICC to address in weighing abandonment requests. Consequently, on the facts of this case, the Interstate Commerce Act also pre-empts Iowa's common-law causes of action when the judgments of fact and of reasonableness necessary to the decision have already been made by the ICC. Pp. 324-331.
Iowa App., 295 N.W.2d 467, reversed and remanded.
Bruce E. Johnson, Des Moines, Iowa, for petitioner.
Henri F. Rush, Washington D.C., for United States and I.C.C. as amici curiae, by special leave of Court.
M. Gene Blackburn, Fort Dodge, Iowa, for respondent.
Justice MARSHALL delivered the opinion of the Court.
1
Through the Interstate Commerce Act and its amendments, Congress has granted to the Interstate Commerce Commission authority to regulate various activities of interstate rail carriers, including their decisions to cease service on their branch lines. Under Iowa state law, a shipper by rail who is injured as the result of a common carrier's failure to provide adequate rail service has available several causes of action for damages. In this case we are called upon to decide whether these state-law actions may be asserted against a regulated carrier when the Commission has approved its decision to abandon the line in question.
2
* Petitioner, an interstate common carrier by rail, is subject to the jurisdiction of the Interstate Commerce Commission. For some time prior to April 1973, petitioner operated a 5.6-mile railroad branch line between the towns of Kalo and Fort Dodge in Iowa. Respondent operated a brick manufacturing plant near Kalo, and used petitioner's railroad cars and branch line to transport its products to Fort Dodge and outward in interstate commerce.1
3
During the 1960's, the tracks on the Kalo-Fort Dodge branch line were damaged by three mud slides. Petitioner made repairs after the first two slides, but following the last slide in 1967, when portions of the embankment wholly vanished under the waters of the Des Moines River, petitioner decided to stop using the branch line. Petitioner instead leased part of another railroad's parallel branch line to connect Kalo with Fort Dodge. In April 1973, the leased line was also damaged by a mud slide. By that time, respondent was the only shipper using the Kalo-Fort Dodge line. After inspecting the damage to the leased line, petitioner decided not to repair it. Petitioner then notified respondent that it would no longer provide service on the Kalo-Fort Dodge line, although it would continue to make cars available at Fort Dodge if respondent would ship its goods there by truck. Respondent determined that shipment by truck was not economically feasible, and notified its customers that it would complete existing contracts and then go out of business.2
4
In November 1973, petitioner filed with the Commission an application for a certificate declaring that the public convenience and necessity permitted it to abandon the Kalo-Fort Dodge branch line. The United States Government intervened in support of petitioner's application. Respondent was the sole party appearing in opposition to the request, but failed to perfect its filing before the Commission.3 In a decision issued in April 1976, the Commission found that petitioner had abandoned the line due to conditions beyond its control and granted the request for a certificate. Chicago & N. W. Transp. Co. Abandonment, AB1, Sub. No. 24 (Jan. 11, 1976), App. to Pet. for Cert. 34a. Respondent made no attempt to comply with the provisions of the Interstate Commerce Act regarding judicial review of the Commission's decision.4 Instead, while the abandonment request was still pending before the Commission, respondent filed this damages action against petitioner in state court. The complaint alleged that petitioner had violated Iowa Code §§ 479.3, 479.122 (1971) and state common law by refusing to provide cars on the branch line, by negligently failing to maintain the roadbed, and by tortiously interfering with respondent's contractual relations with its customers.5 The state trial court, holding that the Interstate Commerce Act wholly pre-empted state law as to the matters in contention, dismissed the action. The Iowa Court of Appeals reversed, ruling that state abandonment law was not pre-empted and that the state and federal schemes represented "complimentary [sic], alternative means of relief for injured parties.'6 295 N.W. 2d 467, 469 (1979). After the Supreme Court of Iowa denied petitioner's application for review, we granted certiorari, 446 U.S. 951, 100 S.Ct. 2915, 64 L.Ed.2d 807 (1980). We reverse.
II
5
Pre-emption of state law by federal statute or regulation is not favored "in the absence of persuasive reasons—either that the nature of the regulated subject matter permits no other conclusion, or that the Congress has unmistakably so ordained." Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248 (1963). See De Canas v. Bica, 424 U.S. 351, 356, 96 S.Ct. 933, 936, 47 L.Ed.2d 43 (1976). The underlying rationale of the pre-emption doctrine, as stated more than a century and a half ago, is that the Supremacy Clause invalidates state laws that "interfere with or are contrary to, the laws of congress. . . ." Gibbons v. Ogden, 9 Wheat. 1, 211, 6 L.Ed. 23 (1824). The doctrine does not and could not in our federal system withdraw from the States either the "power to regulate where the activity regulated [is] a merely peripheral concern" a federal law, San Diego Building Trades Council v. Garmon, 359 U.S. 236, 243, 79 S.Ct. 773, 778, 3 L.Ed.2d 775 (1959), or the authority to legislate when Congress could have regulated "a distinctive part of a subject which is peculiarly adapted to local regulation, . . . but did not," Hines v. Davidowitz, 312 U.S. 52, 68, n.22, 61 S.Ct. 399, 405, n.22, 85 L.Ed. 581 (1941). But when Congress has chosen to legislate pursuant to its constitutional powers, then a court must find local law pre-empted by federal regulation whenever the "challenged state statute 'stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.' " Perez v. Campbell, 402 U.S. 637, 649, 91 S.Ct. 1704, 1711, 29 L.Ed.2d 233 (1971), quoting Hines v. Davidowitz, supra, at 67, 61 S.Ct., at 404. Making this determination "is essentially a two-step process of first ascertaining the construction of the two statutes and then determining the constitutional question whether they are in conflict." Perez v. Campbell, supra, at 644, 91 S.Ct., at 1708. And in deciding whether any conflict is present, a court's concern is necessarily with "the nature of the activities which the States have sought to regulate, rather than on the method of regulation adopted." San Diego Building Trades Council v. Garmon, supra, at 243, 79 S.Ct., at 778.
6
The Interstate Commerce Act is among the most pervasive and comprehensive of federal regulatory schemes and has consequently presented recurring pre-emption questions from the time of its enactment. Since the turn of the century, we have frequently invalidated attempts by the States to impose on common carriers obligations that are plainly inconsistent with the plenary authority of the Interstate Commerce Commission or with congressional policy as reflected in the Act. These state regulations have taken many forms. For example, as early as 1907, the Court struck down a State's common-law cause of action to challenge as unreasonable a rail common carrier's rates because rate regulation was within the exclusive jurisdiction of the Commission, and a state-court action "would be absolutely inconsistent with the provisions of the act." Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 446, 27 S.Ct. 350, 357, 51 L.Ed. 553. Similarly, in Transit Comm'n v. United States, 289 U.S. 121, 129, 53 S.Ct. 536, 538, 77 L.Ed. 1075 (1933), we held that the Interstate Commerce Commission's statutory authority to regulate extensions of service was exclusive and therefore stripped a similar state commission of all power to act in the same area. More recently, in Chicago v. Atchison, T. & S. F. R. Co., 357 U.S. 77, 78 S.Ct. 1063, 2 L.Ed.2d 1174 (1958), we held that a city ordinance requiring a license from a municipal authority before a railroad could transfer passengers, an activity also subject to regulation under the Interstate Commerce Act, was facially invalid as applied to an interstate carrier. "[I]t would be inconsistent with [federal] policy," we observed, "if local authorities retained the power to decide" whether the carriers could do what the Act authorized them to do. Id., at 87, 78 S.Ct., at 1069. The common rationale of these cases is easily stated: "[T]here can be no divided authority over interstate commerce, and . . . the acts of Congress on that subject are supreme and exclusive." Missouri Pacific R. Co. v. Stroud, 267 U.S. 404, 408, 45 S.Ct. 243, 245, 69 L.Ed. 683 (1925). Consequently, state efforts to regulate commerce must fall when they conflict with or interfere with federal authority over the same activity.
III
7
In deciding whether respondent's state-law damages action is pre-empted, we must determine what Congress has said about a carrier's ability to abandon a line, what Iowa state law provides on the same subject, and whether the two are inconsistent. To these tasks we now turn.
A.
8
The Interstate Commerce Commission has been endowed by Congress with broad power to regulate a carrier's permanent or temporary cessation of service over lines used for interstate commerce. Under §§ 1(4) and 1(11) of the Interstate Commerce Act, recodified at 49 U.S.C. §§ 11101(a) and 11121(a) (1976 ed., Supp. II),7 the Commission is empowered both to pass on the reasonableness of a carrier's temporary suspension of its service and, if necessary, to order it resumed. See ICC v. Chicago & N. W. Transp. Co., 533 F.2d 1025, 1027, n. 2 (CA8 1976); ICC v. Maine Central R. Co., 505 F.2d 590, 593-594 (CA2 1974). In addition, and most relevant here, the Act endows the Commission with broad authority over abandonments, or permanent cessations of service.
9
The Commission's power to regulate abandonments by rail carriers stems from the Transportation Act of 1920, ch. 91, 41 Stat. 477-478, which added to the Interstate Commerce Act a new § 1(18), recodified at 49 U.S.C. § 10903(a) (1976 ed., Supp. III). That section stated in pertinent part:
10
"[N]o carrier by railroad subject to this chapter shall abandon all or any portion of a line of railroad, or the operation thereof, unless and until there shall first have been obtained from the Commission a certificate that the present or future public convenience and necessity permit of such abandonment."
11
This section, we have said, must be "construed to make federal authority effective to the full extent that it has been exerted and with a view of eliminating the evils that Congress intended to abate." Transit Comm'n v. United States, supra, at 128, 53 S.Ct., at 538. Among those evils is "[m]ultiple control in respect of matters affecting [interstate railroad] transportation," because such control, in the judgment of Congress, has proved "detrimental to the public interest." 289 U.S., at 127, 53 S.Ct., at 538. See Chicago v. Atchison, T. & S. F. R. Co., supra, at 87, 78 S.Ct., at 1069. Consequently, we have in the past concluded that the authority of the Commmission to regulate abandonments is exclusive. Alabama Public Service Comm'n v. Southern R. Co., 341 U.S. 341, 346, n. 7, 71 S.Ct. 762, 766, n. 7, 95 L.Ed. 1002 (1951). See Colorado v. United States, 271 U.S. 153, 164-166, 46 S.Ct. 452, 455, 70 L.Ed. 878 (1926). The Commission's authority over abandonments is also plenary. So broad is this power that it extends even to approval of abandonment of purely local lines operated by regulated carriers when, in the Commission's judgment, "the over-riding interests of interstate commerce requir[e] it." Palmer v. Massachusetts, 308 U.S. 79, 85, 60 S.Ct. 34, 37, 84 L.Ed. 93 (1939). The broad scope of the Commission's authority under § 1(18) has been clear since the Court first interpreted that provision inColorado v. United States, supra. There, the Court rejected a challenge by the State of Colorado to the power of the Commission to grant a certificate permitting an abandonment of a wholly intrastate branch line operated by an interstate carrier. Justice Brandeis wrote for the Court:
12
"Congress has power to assume not only some control, but paramount control insofar as interstate commerce is involved. It may determine to what extent and in what manner intrastate service must be subordinated in order that interstate service may be adequately rendered. The power to make the determination inheres in the United States as an incident of its power over interstate commerce. The making of this determination involves an exercise of judgment upon the facts of the particular case. The authority to find the facts and to exercise thereon the judgment whether abandonment is consistent with public convenience and necessity, Congress conferred upon the Commission." 271 U.S., at 165-166, 46 S.Ct., at 454-55.
13
The exclusive and plenary nature of the Commission's authority to rule on carriers' decisions to abandon lines is critical to the congressional scheme, which contemplates comprehensive administrative regulation of interstate commerce. In deciding whether to permit an abandonment, the Commission must balance "the interests of those now served by the present line on the one hand, and the interests of the carrier and the transportation system on the other." Purcell v. United States, 315 U.S. 381, 384, 62 S.Ct. 709, 710, 86 L.Ed. 910 (1942). Once the Commission has struck that balance, its conclusion is entitled to considerable deference. "The weight to be given to cost of a relocated line as against the adverse effects upon those served by the abandoned line is a matter which the experience of the Commission qualifies it to decide. And, under the statute, it is not a matter for judicial redecision." Id., at 385, 62 S.Ct., at 711.
14
The breadth of the Commission's statutory discretion suggests a congressional intent to limit judicial interference with the agency's work. The Act in fact spells out with considerable precision the remedies available to a shipper who is injured either by the Commission's approval of an abandonment or by a carrier's abandoning a line without securing Commission approval. A shipper objecting to an abandonment may ask the Commission to investigate the carrier's action. § 13(1), recodified at 49 U.S.C. § 11701(b) (1976 ed., Supp. III). A shipper may also oppose any request for abandonment filed before the Commission. 49 CFR § 1121.36 (1980).8 If ultimately dissatisfied with the Commission's action, a shipper may seek review of its action in the appropriate court of appeals, 28 U.S.C. §§ 2321(a), 2342(5). In addition, at the time that this action was filed in state court, § 1(20) of the Act expressly provided that a shipper believing a carrier's abandonment was unlawful could seek an injunction against it.9 There is no provision in the Act for a civil damages action against a carrier for an abandonment that has been approved by the Commission.10 The structure of the Act thus makes plain that Congress intended that an aggrieved shipper should seek relief in the first instance from the Commission.
15
In sum, the construction of the applicable federal law is straightforward and unambiguous. Congress granted to the Commission plenary authority to regulate, in the interest of interstate commerce, rail carriers' cessations of service on their lines. And at least as to abandonments, this authority is exclusive.
16
Equally clear are the meanings of the state statutory and common-law obligations that petitioner seeks to challenge. The Iowa Court of Appeals held that Iowa Code §§ 479.3 and 479.122 (1971) "impos[e] on the railroads the unqualified and unconditional duty to furnish car service and transportation to all persons who apply," and that this state-law duty was not pre-empted by the provisions of the Interstate Commerce Act imposing a similar duty. 295 N.W.2d, at 469. According to respondent's complaint in the state court, petitioner's failure to carry out these "duties of a common carrier" injured it in the amount of $350,000. App. 78. The state court also held that respondent could maintain its causes of action for common-law negligence based on petitioner's alleged failure to maintain the roadbed and for common-law tort for purported interference with contractual relations with respondent's customers. 295 N.W.2d, at 471-472. The negligence count as outlined in respondent's complaint claimed $150,000 in damages based on petitioner's alleged failures "to maintain the track in a proper manner" and "to properly maintain the railroad right-of-way." App. 79-80. The tort count alleged that "at all times material hereto, it was the avowed and publicized purpose of [petitioner] to close all unproductive lines under its control," and that this plan interfered with respondent's contracts and damaged it in the amount of $100,000. Id., at 81. These, then, are the claims that the Iowa Court of Appeals held properly cognizable in the state courts.
B
17
Armed with these authoritative constructions of both the federal regulatory scheme and the state law, we must next determine whether they conflict. The Iowa Court of Appeals held that the two remedies for abandonment merely complemented one another. We disagree. Both the letter and the spirit of the Interstate Commerce Act are inconsistent with Iowa law as construed by that court. The decision below amounts to a holding that a State can impose sanctions upon a regulated carrier for doing that which only the Commission, acting pursuant to the will of Congress, has the power to declare unlawful or unreasonable. Cf. Chicago v. Atchison, T. & S. F. R. Co., 357 U.S., at 87, 78 S.Ct., at 1069. It is true that not one of the three counts of respondent's state-court complaint mentions the word "abandonment," but compliance with the intent of Congress cannot be avoided by mere artful pleading. It is difficult to escape the conclusion that the instant litigation represents little more than an attempt by a disappointed shipper to gain from the Iowa courts the relief it was denied by the Commission.11
18
Respondent's main cause of action alleges an improper failure to furnish cars on the Kalo-Fort Dodge branch line. In Missouri Pacific R. Co. v. Stroud, 267 U.S. 404, 45 S.Ct. 243, 69 L.Ed. 683 (1925), this Court confronted the precise question whether a state-court damages action would lie for a carrier's failure to furnish cars to carry a shipper's goods in interstate commerce.12 The Court held that because the lumber shipped by the carrier moved in interstate, rather than intrastate, commerce, "[t]he state law has no application. . . ." Id., at 408, 45 S.Ct., at 245. In the instant case, the bricks that respondent here shipped in petitioner's cars, like the lumber in Missouri Pacific, were moving in interstate commerce.13 Respondent in essence seeks to use state law to compel petitioner to furnish cars in spite of the congressional decision to leave regulation of car service to the Commission. But "[t]he duty to provide cars is not absolute," and the law " 'exacts only what is reasonable of the railroads under the existing circumstances.' " Milmine Grain Co. v. Norfolk & Western R. Co., 352 I.C.C. 575, 585 (1976), citing Elgin Coal Co. v. Louisville & Nashville R. Co., 277 F.Supp. 247, 250 (ED Tenn.1967). See Midland Valley R. Co. v. Barkley, 276 U.S. 482, 484, 48 S.Ct. 342, 72 L.Ed. 664 (1928). The judgment as to what constitutes reasonableness belongs exclusively to the Commission. Cf. Purcell v. United States, 315 U.S., at 384-385, 62 S.Ct., at 710-11. It would vitiate the overarching congressional intent of creating "an efficient and nationally integrated railroad system," ICC v. Railway Labor Executives Assn., 315 U.S. 373, 376-377, 62 S.Ct. 717, 719-20, 86 L.Ed. 904 (1942), to permit the State of Iowa to use the threat of damages to require a carrier to do exactly what the Commission is empowered to excuse. A system under which each State could, through its courts, impose on railroad carriers its own version of reasonable service requirements could hardly be more at odds with the uniformity contemplated by Congress in enacting the Interstate Commerce Act.
19
The conclusion that a suit under state law conflicts with the purposes of the Act is merely bolstered when, as here, the Commission has actually approved the abandonment. In reaching its decision, the Commission expressly found that "the cessation of service occurred because of conditions over which [petitioner] had no control." App. to Pet. for Cert. 35a. Because Congress granted the exclusive discretion to make such judgments to the Commission, there is no further role that the state court could play. Even though the approval did not come until after respondent filed its civil suit, it would be contrary to the language of the statute to permit litigation challenging the lawfulness of the carrier's actions to go forward when the Commission has expressly found them to be reasonable. See 49 U.S.C. § 1(17)(a), recodified at 49 U.S.C. § 10501(c) (1976 ed., Supp. III). We therefore hold that Iowa's statutory cause of action for failure to furnish cars cannot be asserted against an interstate rail carrier on the facts of this case.
20
The same reasoning applies to respondent's other asserted causes of action, because they, too, are essentially attempts to litigate the issues underlying petitioner's abandonment of the Kalo-Fort Dodge line. The questions respondent seeks to raise in the state court—whether roadbed maintenance was negligent or reasonable and whether petitioner abandoned its line with some tortious motive—are precisely the sorts of concerns that Congress intended the Commission to address in weighing abandonment requests from the carriers subject to its regulation.14 See Purcell v. United States, supra, at 385, 62 S.Ct., at 711; Chesapeake & Ohio R. Co. v. United States, 283 U.S. 35, 42, 51 S.Ct. 337, 339, 75 L.Ed. 824 (1931). That alone might be enough to prohibit respondent from raising them in a state court. Cf. Pennsylvania R. Co. v. Clark Bros. Coal Mining Co., 238 U.S. 456, 469, 35 S.Ct. 896, 900, 59 L.Ed. 1406 (1915) (no damages action may be brought for car distribution practices until Commission has ruled them unlawful).
21
But we need not decide whether a state-court suit is barred when the Commission is empowered to rule on the underlying issues, because here the Commission has actually addressed the matters respondent wishes to raise in state court. The Commission's order approving the abandonment application found that after the first two landslides, petitioner "made necessary repairs to enable continuation of service," that further repairs after the 1967 slide would not have been "sufficient to insure continuous operations," that the abandonment was not "willful" that respondent has no right to "insist that a burdensome line be maintained solely for its own use," and that "continued operation of the line would be an unnecessary burden on [petitioner] and on interstate commerce." App. to Pet. for Cert. 35a-36a. These findings by the Commission, made pursuant to the authority delegated by Congress, simply leave no room for further litigation over the matters respondent seeks to raise in state court. Consequently, we hold that on the facts of this case, the Interstate Commerce Act also pre-empts Iowa's common-law causes of action for damages stemming from a carrier's negligence and tort when the judgments of fact and of reasonableness necessary to the decision have already been made by the Commission.
22
Nothing in our decision in Pennsylvania R. Co. v. Puritan Coal Mining Co., 237 U.S. 121, 35 S.Ct. 484, 59 L.Ed. 867 (1915), compels a contrary result. But because both respondents and the Iowa Court of Appeals rely heavily on its language, we discuss the case in some detail. In Puritan, this Court was called upon for the first time to interpret what was then § 22 of the Interstate Commerce Act as it related to a carrier's duty to furnish cars. That section, which survives without substantive change in the Act as recodified,15 provided that nothing in the Act "shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this act are in addition to such remedies." Relying on this language, this Court held that a shipper could pursue its state common-law remedies for failure to provide cars when the carrier had previously agreed to provide them, as long as "there is no administrative question involved." Id., at 131-132, 35 S.Ct., at 487-88. Without this provision, the opinion explained, "it might have been claimed that, Congress having entered the field, the whole subject of liability of carrier to shippers in interstate commerce had been withdrawn from the jurisdiction of the state courts," so § 22 was added to make plain that the Act "was not intended to deprive the state courts of their general and concurrent jurisdiction." Id., at 130, 35 S.Ct., at 487. The Iowa Court of Appeals relied on this broad-sounding language in concluding that respondent's causes of action survived the enactment of and the various amendments to the Interstate Commerce Act. Respondent urges essentially the same point in this Court.
23
This analysis fails to take into account the fact that the Commission's exclusive jurisdiction over abandonments arises from the Transportation Act of 1920, and its authority over car service from the Esch Car Service Act, ch. 23, 40 Stat. 101. Our decision in Puritan preceded these amendments to the Interstate Commerce Act, so it can hardly be viewed as an authoritative construction of the Act as amended.16 And even assuming for the sake of argument the continuing validity of that opinion's reasoning, it does not control the disposition of the instant case. The Court in Puritan expressly noted that the matters presented to the state courts for decision involved no questions of law or questions calling for an administrative judgment, and, in particular, no issue as to the reasonableness of the carrier's policies. 237 U.S., at 131-132, 35 S.Ct., at 487-88. Instead, the state court was called upon to decide only the factual question whether the railroad had carried out the duties that it had agreed to undertake. The Court's opinion in Puritan recognized the importance of this distinction:
24
"[I]t must be borne in mind that there are two forms of discrimination,—one in the rule and the other in the manner of its enforcement; one in promulgating a discriminatory rule, the other in the unfair enforcement of a reasonable rule. In a suit where the rule of practice itself is attacked as unfair or discriminatory, a question is raised which calls for the exercise of the judgment and discretion of the administrative power which has been vested by Congress in the Commission. . . . Until that body has declared the practice to be discriminatory and unjust, no court has jurisdiction of a suit against an interstate carrier for damages occasioned by its enforcement. . . .
25
"But if the carrier's rule, fair on its face, has been unequally applied, and the suit is for damages, occasioned by its violation or discriminatory enforcement, there is no administrative question involved, the courts being called upon to decide a mere question of fact." Ibid.
26
Here, we face the reverse of the situation that gave rise to the Puritan case. The questions presented to the state court in the instant litigation all involve evaluations of the reasonableness of petitioner's abandonment of the branch line. These issues call for the type of administrative evaluations and conclusions that Congress has entrusted to the informed discretion of the Commission. See Midland Valley R. Co. v. Barkley, 276 U.S., at 484-486, 48 S.Ct., at 342-43; Great Northern R. Co. v. Merchants Elevator Co., 259 U.S. 285, 291, 42 S.Ct. 477, 479, 66 L.Ed. 943 (1922). Under the Puritan analysis, "no court has jurisdiction" of a suit such as respondent's until the Commission "has declared the practice to be . . . unjust." 237 U.S., at 131, 35 S.Ct., at 487. And the Commission, in an exercise of its discretion, has done precisely the opposite; it has decided that the abandonment was proper.17 Respondent has chosen not to seek judicial review of the Commission's judgment through the means provided by Congress.18 For all of these reasons, to the extent that the Puritan analysis has any application here, it supports petitioner's and the Commission's arguments that the Iowa courts lack jurisdiction to entertain respondent's suit for damages arising from petitioner's abandonment of the Kalo-Fort Dodge branch line.
27
Our decision today does not leave a shipper in respondent's position without a remedy if it is truly harmed. On the contrary, an aggrieved shipper is still free to pursue the avenues for relief set forth in the statute. Respondent could have gone to the Commission and challenged petitioner's refusal to provide service before any abandonment application was filed, but it did not. After petitioner filed its request for a certificate, respondent had the opportunity to present evidence to the Commission in support of its allegation, but failed to do so. Having lost its battle there, respondent could have followed the congressionally prescribed path by seeking review in the appropriate United States court of appeals. This, too, respondent failed to do. The Act creates no other express remedies for a shipper who is damaged by a carrier's abandonment of a line. In particular, nothing in the Act suggests that Congress contemplated permitting a shipper to bring a civil damages action in state court. And such a right to sue, with its implied threat of sanctions for failure to comply with what the courts of each State consider reasonable policies, is plainly contrary to the purposes of the Act. We are thus not free to assume that it has been preserved.
IV
28
We hold that the Interstate Commerce Act precludes a shipper from pressing a state-court action for damages against a regulated carrier when the Interstate Commerce Commission, in approving the carrier's application for abandonment, reaches the merits of the matters the shipper seeks to raise in state court. We reserve for another day the question whether such a cause of action lies when no application is made to the Commission. The judgment of the Iowa Court of Appeals is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
29
So ordered.
1
Respondent used petitioner's branch line only for the shipment of bricks that were traveling in interstate commerce. All of the bricks that respondent shipped intrastate traveled by truck.
2
It is undisputed that at this time, petitioner had not made a decision whether to abandon the Kalo-Fort Dodge branch line. An abandonment "is characterized by an intention of the carrier to cease permanently or indefinitely all transportation service on the relevant line." ICC v. Chicago & N. W. Transp. Co., 533 F.2d 1025, 1028 (CA8 1976). See ICC v. Chicago, R. I. & P. R. Co., 501 F.2d 908, 911 (CA8 1974), cert. denied, 420 U.S. 972, 95 S.Ct. 1393, 43 L.Ed.2d 652 (1975). An embargo, by contrast, is a temporary emergency suspension of service initiated by filing of a notice with the Commission. ICC v. Chicago & N. W. Transp. Co., supra, at 1027, n.2.
3
In particular, respondent "did not file a verified statement in opposition as required," and was therefore "deemed to be in default and entitled to no further formal proceedings." Chicago & N. W. Transp. Co. Abandonment, AB1, Sub. No. 24 (Jan. 11, 1976), App. to Pet. for Cert. 34a-35a. The reason for this default, according to respondent, was that it had gone out of business and therefore had no continuing interest in forcing petitioner to continue its service on the branch line.
4
See 28 U.S.C. §§ 2321(a), 2342(5), 2343, 2344.
5
Iowa Code § 479.3 (1971) provides in relevant part:
"Every railway corporation shall upon reasonable notice, and within a reasonable time, furnish suitable cars to any and all persons who may apply therefor, for the transportation of any and all kinds of freight, and receive and transport such freight with all reasonable dispatch. . . ."
Iowa Code § 479.122 (1971) provides:
"Every corporation operating a railway shall be liable for all damages sustained by any person, including employees of such corporation, in consequence of the neglect of the agents, or by any mismanagement of the engineers, or other employees thereof, and in consequence of the willful wrongs, whether of commission or omission, of such agents, engineers, or other employees, when such wrongs are in any manner connected with the use and operation of any railway on or about which they shall be employed, and no contract which restricts such liability shall be legal or binding."
The conclusion that these statutes create a state-court damages action for failure to provide proper service is not a new one under Iowa law. See, e. g., Baird Bros. v. Minneapolis & St. L. R., 181 Iowa 1104, 165 N.W. 412 (1917).
After respondent filed its state-court action, petitioner sought to remove the case to federal court, but the federal court, finding that diversity of citizenship was lacking, remanded the case to state court. The Iowa Court of Appeals correctly held that this federal-court ruling had no relevance to its inquiry into whether the pre-emption doctrine barred the state courts from exercising their jurisdiction. 295 N.W.2d 467, 468-469 (1979). See Brancadora v. Federal Nat. Mortgage Assn., 344 F.2d 933, 935 (CA9 1965); Alaska v. K & L Distributors, Inc., 318 F.2d 498, 498 (CA9 1963).
6
The Iowa court also held the doctrine of primary jurisdiction, in the sense of initial deferral to the expertise of the Commission, had no application to this litigation. 295 N.W.2d, at 471-472. Petitioner, as well as the United States and the Commission as amici curiae, argues that the primary-jurisdiction doctrine precludes respondent's suit on the facts of this case, but we have no occasion to address that question. Although we agree with petitioner and amici that the Commission has special expertise in the matters respondent wishes to raise in state court, see infra, at 326-327, and n. 14, we do not rely on the primary-jurisdiction doctrine. As we have stated in interpreting another provision of the Interstate Commerce Act: "[T]he survival of a judicial remedy . . . cannot be determined on the presence or absence in the Commission of primary jurisdiction to decide the basic question on which relief depends. Survival depends on the effect of the exercise of the remedy upon the statutory scheme of regulation." Hewitt-Robins Inc. v. Eastern Freight-Ways Inc., 371 U.S. 84, 89, 83 S.Ct. 157, 160, 9 L.Ed.2d 142 (1962). Even if the primary-jurisdiction doctrine were applicable here, it would at best require the state courts to postpone any action until the Commission had an opportunity to address the administrative questions raised in the civil damages action. But here, the Commission has actually ruled, and the state trial on liability and damages has not yet taken place. Consequently, the requirements of the doctrine have been complied with in spirit, even if not through any intent of respondent. We save for a later case a decision on the proper application of the primary-jurisdiction doctrine when the Commission has not yet ruled.
7
Under Pub.L. 95-473, 92 Stat. 1337, the Interstate Commerce Act and its various amendments have been completely recodified as Subtitle IV of Title 49 of the United States Code. In the main, this recodification is without substantive change. In this opinion, we cite to the original Act for ease in referring to the decision below and to our precedents. Where appropriate, we also give parallel cites to the Act as recodified.
8
A carrier who files an application for a certificate permitting abandonment must make reasonable efforts to give notice to all shippers who have used the line in the past 12 months. 49 U.S.C. § 10904(a)(3)(D) (1976 ed., Supp. III). See In re Chicago, M., St. P. & P. R. Co., 611 F.2d 662, 668 (CA7 1979).
9
Section 1(20), which was, like § 1(18), added by the Transportation Act of 1920, provided that "any court of competent jurisdiction" could enjoin a carrier's abandonment of a line when application for approval has not been made to the Commission. The right of a private party to seek an injunction was repealed by the Railroad Revitalization and Regulatory Reform Act of 1976, Pub.L. 94-210, 90 Stat. 127-130. Under the Act as amended and recodified, only the United States, the government of a State, or the Commission itself may sue to enjoin most illegal abandonments. See 49 U.S.C. §§ 11505 (action by state), 11702 (action by the Commission), 11703 (action by the United States) (1976 ed., Supp. III). A private person may seek injunctive relief only to prevent illegal abandonment of a freight-forwarding service. See 49 U.S.C. § 11704 (1976 ed., Supp. III). The fact that shippers in the position of respondent no longer have available the remedy of injunction does not affect our decision, because numerous other remedies for improper cessations of service still exist. "[T]he absence of any judicial remedy [would] plac[e] the shipper entirely at the mercy of the carrier, contrary to the overriding purpose of the Act." Hewitt-Robins, Inc. v. Eastern Freight-Ways, Inc., 371 U.S., at 88, 83 S.Ct., at 159 (emphasis added).
10
Although §§ 8 and 9, recodified at 49 U.S.C. § 11705 (1976 ed., Supp. III), provide a general right to seek damages when injured by a carrier's violation of the Act, this Court stated in Powell v. United States, 300 U.S. 276, 287, 57 S.Ct. 470, 476, 81 L.Ed. 643 (1937), that the injunctive remedy, see n. 9, supra, was "the only method for enforcing" what was then § 1(18) of the Act. Because the carrier's actions here have been approved by the Commission, there has been no violation of the Act, and this damages remedy could have no application to this case. We therefore need not decide whether the language of Powell means that a damages action can never be brought for an illegal abandonment, or if such an action can be brought, whether Congress might have intended that state and federal courts have concurrent jurisdiction. We thus reserve those questions for a proper case.
11
The fact that respondent did not perfect its filing before the Commission, see n. 3, supra, does not affect either the validity or the finality of the Commission's findings with respect to the reasonableness of petitioner's actions. These findings remain valid if supported by substantial evidence, see Illinois Central R. Co. v. Norfolk & Western R. Co., 385 U.S. 57, 66, 87 S.Ct. 255, 260, 17 L.Ed.2d 162 (1966), and in any case are not ordinarily subject to revision via collateral attack in a civil action.
12
The Commission's authority over furnishing cars was reflected in §§ 1(4) and 1(11) of the Act, recodified at 49 U.S.C. §§ 11101(a) and 11121(a) (1976 ed., Supp. III).
13
See n. 1, supra.
14
Most of the Commission's abandonment decisions turn in part on factors such as those respondent wishes the state court to decide. See, e. g., Chicago & N. W. Transp. Co. Abandonment, 354 I.C.C. 121, 125-126 (1977); Baltimore & Annapolis R. Co. Abandonment, 348 I.C.C. 678, 700-703 (1976); Missouri Pacific R. Co. Abandonment, 342 I.C.C. 643, 644 (1972).
15
See 49 U.S.C. § 10103 (1976 ed., Supp. III).
16
The Transportation Act of 1920, moreover, also added to the Interstate Commerce Act a new § 1(17)(a) recodified at 49 U.S.C. § 10501(c) (1976 ed.), which expressly invalidates state remedies when they are "inconsistent with an order of the Commission" or prohibited under any provision of the Act. See supra, at 326. The Puritan Court obviously could not have considered this provision when deciding that a shipper could in some circumstances bring a state-court action for failure to furnish cars.
17
The court below apparently recognized the distinction for jurisdictional purposes between state-court actions raising strictly factual claims and those calling for an exercise of administrative discretion. See 295 N.W.2d, at 472. If it is assumed that Puritan remains good law, then the state court erred only in concluding that a suit such as respondent's raises only questions of fact that do not call for any expertise. Respondent itself concedes that even under its theory of the case, "the sole issue for determination is whether or not the service was terminated by compelling circumstances beyond the control of the carrier." Brief for Respondent 6 (emphasis in original). That is exactly the kind of question Congress intended that the Commission decide, and in the case before us, the Commission has of course already decided it.
18
Respondent's reliance on ICC v. Chicago & N. W. Transp. Co., 533 F.2d 1025 (CA8 1976), is also misplaced. That case held only that a federal-court suit seeking injunctive relief on behalf of the Commission, which is among the express remedies enumerated in the Act, could go forward without awaiting the Commission's decision on a pending request for an abandonment. We express no opinion as to the merits of that case, but we do note that its facts bear little relation to those before us.
| 910
|
450 U.S. 398
101 S.Ct. 1164
67 L.Ed.2d 388
H. L., etc., Appellant,v.Scott M. MATHESON et al.
No. 79-5903.
Argued Oct. 6, 1980.
Decided March 23, 1981.
Syllabus
A Utah statute requires a physician to "[n]otify, if possible," the parents or guardian of a minor upon whom an abortion is to be performed. Appellant, while an unmarried minor living with and dependent on her parents, became pregnant. A physician advised her that an abortion would be in her best medical interest but, because of the statute, refused to perform the abortion without first notifying her parents. Believing that she should proceed with the abortion without notifying her parents, appellant instituted a suit in state court seeking a declaration that the statute is unconstitutional and an injunction against its enforcement. She sought to represent a class consisting of unmarried minors "who are suffering unwanted pregnancies and desire to terminate the pregnancies but may not do so" because of their physicians' insistence on complying with the statute. The trial court upheld the statute as not unconstitutionally restricting a minor's right of privacy to obtain an abortion or to enter into a doctor-patient relationship. The Utah Supreme Court affirmed.
Held:
1. Since appellant did not allege or offer evidence that either she or any member of her class is mature or emancipated, she lacks standing to challenge the Utah statute as being unconstitutional on its face on the ground of overbreadth in that it could be construed to apply to all unmarried minor girls, including those who are mature and emancipated. Harris v. McRae, 448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784. Moreover, the State is bound by a ruling in another case that the statute does not apply to emancipated minors, and the Utah Supreme court has had no occasion to consider the statute's application to mature minors. Pp. 404-407.
2. As applied to an unemancipated minor girl living with and dependent upon her parents, and making no claim or showing as to maturity or as to her relations with her parents, the Utah statute serves important state interests, is narrowly drawn to protect only those interests, and does not violate any guarantees of the Constitution. Pp. 407-413.
(a) Although a state may not constitutionally legislate a blanket, unreviewable power of parents to veto their daughter's abortion, Bellotti v. Baird, 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797; Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788, a statute setting out a mere requirement of parental notice when possible does not violate the constitutional rights of an immature, dependent minor. Pp. 407-410.
(b) The Utah statute does not give parents a veto power over the minor's abortion decision. As applied to immature and dependent minors, the statute serves important considerations of family integrity and protecting adolescents as well as providing an opportunity for parents to supply essential medical and other information to the physician. The statute is not unconstitutional for failing to specify what information parents may furnish to physicians, or to provide for a mandatory period of delay after the physician notifies the parents; or because the State allows a pregnant minor to consent to other medical procedures without formal notice to her parents if she carries the child to term; or because the notice requirement may inhibit some minors from seeking abortions. Pp. 411-413.
604 P.2d 907, affirmed.
David S. Dolowitz, Salt Lake City, Utah, for appellant.
Paul M. Tinker, Salt Lake City, Utah, for appellees.
CHIEF JUSTICE BURGER delivered the opinion of the Court.
1
The question presented in this case is whether a state statute which requires a physician to "[n]otify, if possible," the parents of a dependent, unmarried minor girl prior to performing an abortion on the girl violates federal constitutional guarantees.
2
* In the spring of 1978, appellant was an unmarried 15-year-old girl living with her parents in Utah and dependent on them for her support. She discovered she was pregnant. She consulted with a social worker and a physician. The physician advised appellant that an abortion would be in her best medical interest. However, because of Utah Code Ann. § 76-7-304 (1978), he refused to perform the abortion without first notifying appellant's parents.
3
Section 76-7-304, enacted in 1974, provides:
4
"To enable the physician to exercise his best medical judgment [in considering a possible abortion], he shall:
5
"(1) Consider all factors relevant to the well-being of the woman upon whom the abortion is to be performed including, but not limited to,
6
"(a) Her physical, emotional and psychological health and safety,
7
"(b) Her age,
8
"(c) Her familial situation.
9
"(2) Notify, if possible, the parents or guardian of the woman upon whom the abortion is to be performed, if she is a minor or the husband of the woman, if she is married." (Emphasis supplied.)1
10
Violation of this section is a misdemeanor punishable by imprisonment for not more than one year or a fine of not more than $1,000.2
11
Appellant believed "for [her] own reasons" that she should proceed with the abortion without notifying her parents. According to appellant, the social worker concurred in this decision.3 While still in the first trimester of her pregnancy, appellant instituted this action in the Third Judicial District Court of Utah.4 She sought a declaration that § 76-7-304(2) is unconstitutional and an injunction prohibiting appellees, the Governor and the Attorney General of Utah, from enforcing the statute. Appellant sought to represent a class consisting of unmarried "minor women who are suffering unwanted pregnancies and desire to terminate the pregnancies but may not do so" because of their physicians' insistence on complying with § 76-7-304(2). The trial judge declined to grant a temporary restraining order or a preliminary injunction.5
12
The trial judge held a hearing at which appellant was the only witness. Appellant affirmed the allegations of the complaint by giving monosyllabic answers to her attorney's leading questions.6 However, when the State attempted to cross-examine appellant about her reasons for not wishing to notify her parents, appellant's counsel vigorously objected,7 insisting that "the specifics of the reasons are really irrelevant to the Constitutional issue."8 The only constitutionally permissible prerequisites for performance of an abortion, he insisted, were the desire of the girl and the medical approval of a physician.9 The trial judge sustained the objection, tentatively construing the statute to require appellant's physician to notify her parents "if he is able to physically contact them."
13
Thereafter, the trial judge entered findings of fact and conclusions of law. He concluded that appellant "is an appropriate representative to represent the class she purports to represent."10 He construed the statute to require notice to appellant's parents "if it is physically possible." He concluded that § 76-7-304(2) "do[es] not unconstitutionally restrict the right of privacy of a minor to obtain an abortion or to enter into a doctor-patient relationship."11 Accordingly, he dismissed the complaint.
14
On appeal, the Supreme Court of Utah unanimously upheld the statute. 604 P.2d 907 (1979). Relying on our decisions in Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976), Carey v. Population Services International, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977), and Bellotti v. Baird, 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979) (Bellotti II ), the court concluded that the statute serves "significant state interest[s]" that are present with respect to minors but absent in the case of adult women.
15
The court looked first to subsection (1) of § 76-7-304. This provision, the court observed, expressly incorporates the factors we identified in Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), as pertinent to exercise of a physician's best medical judgment in making an abortion decision. In Doe, we stated:
16
"We agree with the District Court . . . that the medical judgment may be exercised in the light of all factors physical, emotional, psychological, familial, and the woman's § age—relevant to the well-being of the patient. All these factors may relate to health. This allows the attending physician the room he needs to make his best medical judgment." Id. at 192, 93 S.Ct. at 747 (emphasis supplied).
17
Section 76-7-304(1) of the Utah statute suggests that the legislature sought to reflect the language of Doe.
18
The Utah Supreme Court held that notifying the parents of a minor seeking an abortion is "substantially and logically related" to the Doe factors set out in § 76-7-304(1) because parents ordinarily possess information essential to a physician's exercise of his best medical judgment concerning the child. 604 P.2d, at 909-910. The court also concluded that encouraging an unmarried pregnant minor to seek the advice of her parents in making the decision of whether to carry her child to term promotes a significant state interest in supporting the important role of parents in child-rearing. Id., at 912. The court reasoned that since the statute allows no veto power over the minor's decision, it does not unduly intrude upon a minor's rights.
19
The Utah Supreme Court also rejected appellant's argument that the phrase "if possible" in § 76-7-304(2) should be construed to give the physician discretion whether to notify appellant's parents. The court concluded that the physician is required to notify parents "if under the circumstances, in the exercise of reasonable diligence, he can ascertain their identity and location and it is feasible or practicable to give them notification." The court added, however, that "the time element is an important factor, for there must be sufficient expedition to provide an effective opportunity for an abortion." 604 P.2d, at 913.
II
20
Appellant challenges the statute as unconstitutional on its face. She contends it is overbroad in that it can be construed to apply to all unmarried minor girls, including those who are mature and emancipated. We need not reach that question since she did not allege or proffer any evidence that either she or any member of her class is mature or emancipated.12 The trial court found that appellant "is unmarried, fifteen years of age, resides at home and is a dependent of her parents." That affords an insufficient basis for a finding that she is either mature or emancipated. Under Harris v. McRae, 448 U.S. 297, 320, 100 S.Ct. 2671, 2690, 65 L.Ed.2d 784 (1980), she therefore lacks "the personal stake in the controversy needed to confer standing" to advance the overbreadth argument.
21
There are particularly strong reasons for applying established rules of standing in this case. The United States District Court for Utah has held that § 76-7-304(2) does not apply to emancipated minors and that, if so applied, it would be unconstitutional. L. R. v. Hansen, Civil No. C-80-0078J (Feb. 8, 1980). Since there was no appeal from that ruling, it is controlling on the State. We cannot assume that the statute, when challenged in a proper case, will not be construed also to exempt demonstrably mature minors.13 See Bellotti v. Baird, 428 U.S. 132, 146-148, 96 S.Ct. 2857, 2865-2867, 49 L.Ed.2d 844 (1976) (Bellotti I ). Nor is there any reason to assume that a minor in need of emergency treatment will be treated in any way different from a similarly situated adult.14 The Utah Supreme Court has had no occasion to consider the application of the statute to such situations. InBellotti I, supra we unanimously declined to pass on constitutional challenges to an abortion regulation statute because the statute was "susceptible of a construction by the state judiciary 'which might avoid in whole or in part the necessity for federal constitutional adjudication, or at least materially change the nature of the problem.' " Id., at 147, 96 S.Ct., at 2866, quotingHarrison v. NAACP, 360 U.S. 167, 177, 79 S.Ct. 1025, 1030, 3 L.Ed.2d 1152 (1959). See Kleppe v. New Mexico, 426 U.S. 529, 546-547, 96 S.Ct. 2285, 2295, 49 L.Ed.2d 34 (1976); Ashwander v. TVA, 297 U.S. 288, 346-347, 56 S.Ct. 466, 482-483, 80 L.Ed. 688 (1936) (concurring opinion). We reaffirm that approach and find it controlling here insofar as appellant challenges a purported statutory exclusion of mature and emancipated minors.
22
The only issue before us, then, is the facial constitutionality of a statute requiring a physician to give notice to parents, "if possible," prior to performing an abortion on their minor daughter, (a) when the girl is living with and dependent upon her parents, (b) when she is not emancipated by marriage or otherwise, and (c) when she has made no claim or showing as to her maturity or as to her relations with her parents.
III
A.
23
Appellant contends the statute violates the right to privacy recognized in our prior cases with respect to abortions. She places primary reliance on Bellotti II, 443 U.S., at 642, 655, 99 S.Ct., at 3047-3048, 3054. In Danforth, we struck down state statutes that imposed a requirement of prior written consent of the patient's spouse and of a minor patient's parents as a prerequisite for an abortion. We held that a state
24
"does not have the constitutional authority to give a third party an absolute, and possibly arbitrary, veto over the decision of the physician and his patient to terminate the patient's pregnancy, regardless of the reason for withholding the consent." 428 U.S., at 74, 96 S.Ct., at 2843.
25
We emphasized, however, "that our holding . . . does not suggest that every minor, regardless of age or maturity, may give effective consent for termination of her pregnancy." Id., at 75, 96 S.Ct., at 2844, citing Bellotti I, supra. There is no logical relationship between the capacity to become pregnant and the capacity for mature judgment concerning the wisdom of an abortion.
26
In Bellotti II, dealing with a class of concededly mature pregnant minors, we struck down a Massachusetts statute requiring parental or judicial consent before an abortion could be performed on any unmarried minor. There the State's highest court had construed the statute to allow a court to overrule the minor's decision even if the court found that the minor was capable of making, and in fact had made, an informed and reasonable decision to have an abortion. We held, among other things, that the statue was unconstitutional for failure to allow mature minors to decide to undergo abortions without parental consent. Four Justices concluded that the flaws in the statute were that, as construed by the state court, (a) it permitted overruling of a mature minor's decision to abort her pregnancy; and (b) "it requires parental consultation or notification in every instance, without affording the pregnant minor an opportunity to receive an independent judicial determination that she is mature enough to consent or that an abortion would be in her best interests." 443 U.S., at 651, 99 S.Ct., at 3052-3053. Four other Justices concluded that the defect was in making the abortion decision of a minor subject to veto by a third party, whether parent or judge, "no matter how mature and capable of informed decisionmaking" the minor might be. Id., at 653-656, 99 S.Ct., at 3053-3055.
27
Although we have held that a state may not constitutionally legislate a blanket, unreviewable power of parents to veto their daughter's abortion,15 a statute setting out a "mere requirement of parental notice" does not violate the constitutional rights of an immature, dependent minor.16 Four Justices in Bellotti II joined in stating:
28
"[Plaintiffs] suggest . . . that the mere requirement of parental notice [unduly burdens the right to seek an abortion]. As stated in Part II above, however, parental notice and consent are qualifications that typically may be imposed by the State on a minor's right to make important decisions. As immature minors often lack the ability to make fully informed choices that take account of both immediate and long-range consequences, a State reasonably may determine that parental consultation often is desirable and in the best interest of the minor.
29
It may further determine, as a general proposition, that such consultation is particularly desirable with respect to the abortion decision—one that for some people raises profound moral and religious concerns.. . .
30
" 'There can be little doubt that the State furthers a constitutionally permissible end by encouraging an unmarried pregnant minor to seek the help and advice of her parents in making the very important decision whether or not to bear a child. That is a grave decision, and a girl of tender years, under emotional stress, may be ill-equipped to make it without mature advice and emotional support. It seems unlikely that she will obtain adequate counsel and support from the attending physician at an abortion clinic, where abortions for pregnant minors frequently take place.' " Id., at 640-641, 99 S.Ct., at 3046-3047 (footnotes omitted), quoting Danforth, 428 U.S., at 91, 96 S.Ct., at 2851 (concurring opinion).
31
Accord, 443 U.S., at 657, 99 S.Ct., at 3055 (dissenting opinion).
32
In addition, "constitutional interpretation has consistently recognized that the parents' claim to authority in their own household to direct the rearing of their children is basic in the structure of our society." Ginsberg v. New York, 390 U.S. 629, 639, 88 S.Ct. 1274, 1280, 20 L.Ed.2d 195 (1968). In Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978), the Court expanded on this theme:
33
"We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected. See, e. g., Wisconsin v. Yoder, 406 U.S. 205, 231-233 [92 S.Ct. 1526, 1541-1542, 32 L.Ed.2d 15] (1972); Stanley v. Illinois [405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972)]; Meyer v. Nebraska, 262 U.S. 390, 399-401 [43 S.Ct. 625, 626-627, 67 L.Ed. 1042] (1923). 'It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.' "
34
Id., at 255, 98 S.Ct. at 554-555, quoting Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944).
35
See also Parham v. J. R., 442 U.S. 584, 602, 99 S.Ct. 2493, 2504, 61 L.Ed.2d 101 (1979); Pierce v. Society of Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 573-574, 69 L.Ed. 1070 (1925). We have recognized that parents have an important "guiding role" to play in the upbringing of their children, Bellotti II, supra, at 633-639, 99 S.Ct., at 3043-3046, which presumptively includes counseling them on important decisions.
B
36
The Utah statute gives neither parents nor judges a veto power over the minor's abortion decision.17 As in Bellotti I, supra, "we are concerned with a statute directed toward minors, as to whom there are unquestionably greater risks of inability to give an informed consent." 428 U.S., at 147, 96 S.Ct., at 2866. As applied to immature and dependent minors, the statute plainly serves the important considerations of family integrity18 and protecting adolescents19 which we identified in Bellotti II. In addition, as applied to that class, the statute serves a significant state interest by providing an opportunity for parents to supply essential medical and other information to a physician. The medical, emotional, and psychological consequences of an abortion are serious and can be lasting; this is particularly so when the patient is immature.20 An adequate medical and psychological case history is important to the physician. Parents can provide medical and psychological data, refer the physician to other sources of medical history, such as family physicians, and authorize family physicians to give relevant data.
37
Appellant intimates that the statute's failure to declare, in terms, a detailed description of what information parents may provide to physicians, or to provide for a mandatory period of delay after the physician notifies the parents,21 renders the statute unconstitutional. The notion that the statute must itemize information to be supplied by parents finds no support in logic, experience, or our decisions. And as the Utah Supreme Court recognized, 604 P.2d, at 913, time is likely to be of the essence in an abortion decision. The Utah statute is reasonably calculated to protect minors in appellant's class by enhancing the potential for parental consultation concerning a decision that has potentially traumatic and permanent consequences.22
38
Appellant also contends that the constitutionality of the statute is undermined because Utah allows a pregnant minor to consent to other medical procedures without formal notice to her parents if she carries the child to term.23 But a state's interests in full-term pregnancies are sufficiently different to justify the line drawn by the statutes. Cf. Maher v. Roe, 432 U.S. 464, 473-474, 97 S.Ct. 2376, 2382, 53 L.Ed.2d 484 (1977). If the pregnant girl elects to carry her child to term, the medical decisions to be made entail few—perhaps none—of the potentially grave emotional and psychological consequences of the decision to abort.
39
That the requirement of notice to parents may inhibit some minors from seeking abortions is not a valid basis to void the statute as applied to appellant and the class properly before us. The Constitution does not compel a state to fine-tune its statutes so as to encourage or facilitate abortions. To the contrary, state action "encouraging childbirth except in the most urgent circumstances" is "rationally related to the legitimate governmental objective of protecting potential life." Harris v. McRae, 448 U.S., at 325, 100 S.Ct., at 2692. Accord, Maher v. Roe, supra, at 473-474, 97 S.Ct., at 2382.24
40
As applied to the class properly before us, the statute plainly serves important state interests, is narrowly drawn to protect only those interests, and does not violate any guarantees of the Constitution.25 The judgment of the Supreme Court of Utah is
41
Affirmed.
42
Justice POWELL, with whom Justice STEWART joins, concurring.
43
* This case requires the Court to consider again the divisive questions raised by a state statute intended to encourage parental involvement in the decision of a pregnant minor to have an abortion. See Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976); Bellotti v. Baird, 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979) (Bellotti II ). I agree with the Court that Utah Code Ann. § 76-7-304(2) (1978) does not unconstitutionally burden this appellant's right to an abortion. I join the opinion of the Court on the understanding that it leaves open the question whether § 76-7-304(2) unconstitutionally burdens the right of a mature minor or a minor whose best interests would not be served by parental notification. See ante, at 412, n. 22. I write to make clear that I continue to entertain the views on this question stated in my opinion in Bellotti II. See n. 8, infra.
II
44
Section 76-7-304(2) requires that a physician "[n]otify, if possible, the parents or guardian of the woman upon whom the abortion is to be performed, if she is a minor."1 Appellant attacks this notice requirement on the ground that it burdens the right of a minor who is emancipated, or who is mature enough to make the abortion decision independently of parental involvement, or whose parents will react obstructively upon notice. See ante, at 405. The threshold question, as the Court's opinion notes, is whether appellant has standing to make such a challenge. Standing depends initially on what the complaint alleges, Warth v. Seldin, 422 U.S. 490, 498, 501, 95 S.Ct. 2197, 2204-2205, 2206, 45 L.Ed.2d 343 (1975), as courts have the power "only to redress or otherwise to protect against injury to the complaining party." Id., at 499, 95 S.Ct., at 2205. The complaint in this case was carefully drawn. Appellant's allegations about herself and her familial situation are few and laconic. She alleged that she did "not wish to inform her parents of her condition and believe[d] that it [was] in her best interest that her parents not be informed of her condition." Complaint ¶ 6. She also alleged that she understood "what is involved in her decision," ¶ 9, and that the physician she consulted had told her that "he could not and would not perform an abortion upon her without informing her parents prior to aborting her." ¶ 7.
45
Appellant was 15 years of age and lived at home with her parents when she filed her complaint. She did not claim to be mature, and made no allegations with respect to her relationship with her parents. She did not aver that they would be obstructive if notified, or advance any other reason why notice to her parents would not be in her best interest. Similarly, the complaint contains no allegation that the physician—while apparently willing to perform the abortion—believed that notifying her parents would have adverse consequences. In fact, nothing in the record shows that the physician had any information about appellant's parents or familial situation, or even that he had examined appellant.
A.
46
This case does not come to us on the allegations of the complaint alone. An evidentiary hearing occurred after the trial court had denied appellant's motion for a preliminary injunction. Appellant was the only witness, and her testimony—and statements by her counsel—make clear beyond any question that the "bare bones" averments of the complaint were deliberate, and that appellant is arguing that a mere notice requirement is invalid per se without regard to the minor's age, whether she is emancipated, whether her parents are likely to be obstructive, or whether there is some health or other reason why notification would not be in the minor's best interests.
47
On direct examination, appellant merely verified the allegations of her complaint by affirming each allegation as paraphrased for her by her lawyer in a series of leading questions.2 Her testimony on cross-examination added nothing to the complaint.3 In addition, appellant's lawyer insistently objected to all questions by counsel for the State as to the appellant's reasons for not wishing to notify her parents.4 The trial court, on its own initiative, pressed unsuccessfully to elicit some reasons, inquiring how it could "find out the validity of [appellant's] reasons without [the State's lawyer] being permitted to cross-examine her." Tr. 9. Appellant's lawyer replied:
48
"It is our position [c]onstitutionally that she has the right to make [the abortion] decision and if she has consulted with a counselor and the counselor concurs that those are valid reasons, why then—
49
* * * * *
50
"In terms of going beyond [the complaint allegations], our point is that the specifics of the reasons are really irrelevant to the constitutional issue." Id., at 9-10 (emphasis supplied).
51
When appellant's lawyer insisted that the facts with respect to this particular minor were irrelevant, the trial court sustained the validity of the statute.5
52
In sum, and as the Court's opinion emphasizes, appellant alleges nothing more than that she desires an abortion, that she has decided—for reasons which she declined to reveal—that it is in her best interest not to notify her parents, and that a physician would be willing to perform the abortion if notice were not required. Although the trial court did not rule in terms of standing, it is clear that these bald allegations do not confer standing to claim that § 76-7-304(2) unconstitutionally burdens the right either of a mature minor or of a minor whose best interests would not be served by parental notification.6 They confer standing only to claim that § 76-7-304(2) is an unconstitutional burden upon an unemancipated minor who desires an abortion without parental notification but also desires not to explain to anyone her reasons either for wanting the abortion or for not wanting to notify her parents.7
B
53
On the facts of this case, I agree with the Court that § 76-7-304(2) is not an unconstitutional burden on appellant's right to an abortion. Numerous and significant interests compete when a minor decides whether or not to abort her pregnancy. The right to make that decision may not be unconstitutionally burdened. Roe v. Wade, 410 U.S. 113, 154, 93 S.Ct. 705, 727, 35 L.Ed.2d 147 (1973); Planned Parenthood of Central Mo. v. Danforth, 428 U.S., at 74-75, 96 S.Ct., at 2843-2844. In addition, the minor has an interest in effectuating her decision to abort, if that is the decision she makes. Id., at 75, 96 S.Ct., at 2844; Bellotti II, 443 U.S., at 647, 99 S.Ct., at 3035. The State, aside from the interest it has in encouraging childbirth rather than abortion, cf. Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977); Harris v. McRae, 448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980), has an interest in fostering such consultation as will assist the minor in making her decision as wisely as possible. Planned Parenthood of Central Mo. v. Danforth, supra, 428 U.S., at 91, 96 S.Ct., at 2851 (STEWART, J., concurring); post, at 422-423 (STEVENS, J., concurring in judgment). The State also may have an interest in the family itself, the institution through which "we inculcate and pass down many of our most cherished values, moral and cultural." Moore v. East Cleveland, 431 U.S. 494, 503-504, 97 S.Ct. 1932, 1937-1938, 52 L.Ed.2d 531 (1977). Parents have a traditional and substantial interest in, as well as a responsibility for, the rearing and welfare of their children, especially during immature years. Bellotti II, supra, 443 U.S., at 637-639, 99 S.Ct., at 3045-3046.
54
None of these interests is absolute. Even an adult woman's right to an abortion is not unqualified. Roe v. Wade, supra, 410 U.S., at 154, 93 S.Ct., at 727. Particularly when a minor becomes pregnant and considers an abortion, the relevant circumstances may vary widely depending upon her age, maturity, mental and physical condition, the stability of her home if she is not emancipated, her relationship with her parents, and the like. If we were to accept appellant's claim that § 76-7-304(2) is per se an invalid burden on the asserted right of a minor to make the abortion decision, the circumstances which normally are relevant would—as her counsel insisted—be immaterial. Supra, at 417. The Court would have to decide that the minor's wishes are virtually absolute. To be sure, our cases have emphasized the necessity to consult a physician. But we have never held with respect to a minor that the opinion of a single physician as to the need or desirability of an abortion outweighs all state and parental interests.8
55
In sum, a State may not validly require notice to parents in all cases, without providing an independent decisionmaker to whom a pregnant minor can have recourse if she believes that she is mature enough to make the abortion decision independently or that notification otherwise would not be in her best interests. My opinion in Bellotti II, joined by three other Justices, stated at some length the reasons why such a decisionmaker is needed. Bellotti II, supra, 443 U.S., at 642-648, 99 S.Ct., at 3047-3051.9 The circumstances relevant to the abortion decision by a minor can and do vary so substantially that absolute rules requiring parental notice in all cases or in none10—would create an inflexibility that often would allow for no consideration of the rights and interests identified above. Our cases have never gone to this extreme, and in my view should not.
56
Justice STEVENS, concurring in the judgment.
57
As the Court points out, this is a class action in which the appellant represents all unmarried " 'minor women who are suffering unwanted pregnancies and desire to terminate the pregnancies but may not do so' because of their physicians' insistence on complying with § 76-7-304(2)" of the Utah Code. Ante, at 401. The Utah Supreme Court held that the statute may validly be applied to all members of that class. This appeal therefore squarely presents the question whether that holding is consistent with the Constitution of the United States. The Court, however, declines to reach this question and instead decides the narrower question presented by the appellant's particular factual situation. Because I believe we have a duty to answer the broader question decided by the Utah Supreme Court, I am unable to join the opinion of the Court.
58
In Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 72-75, 96 S.Ct. 2831, 2842-2844, 49 L.Ed.2d 788 (1976), the Court held that a pregnant minor's right to make the decision to obtain an abortion may not be conditioned on parental consent. My dissent from that holding, id., at 102-105, 96 S.Ct., at 2856-2857, does not qualify my duty to respect it as a part of our law. See Bellotti v. Baird, 443 U.S. 622, 652-656, 99 S.Ct. 3035, 3053-3055, 61 L.Ed.2d 797 (1979) (STEVENS, J., concurring in judgment). However, as I noted in Bellotti, neither that case nor Danforth "determines the constitutionality of a statute which does no more than require notice to the parents, without affording them or any other third party an absolute veto." 443 U.S., at 654, n. 1, 99 S.Ct., at 3053, n. 1. Since the outcome in this case is not controlled by Danforth, the principles that I considered dispositive of the parental consent issue in that case plainly dictate that the Utah statute now before us be upheld.
59
The fact that a state statute may have some impact upon a minor's exercise of his or her rights begins, rather than ends, the constitutional inquiry. Once the statute's impact is identified, it must be evaluated in light of the state interests underlying the statute. The state interest that the Utah statute at issue in this case attempts to advance is essentially the same state interest considered in Danforth. As I noted in Danforth, that interest is fundamental and substantial:
60
"The State's interest in the welfare of its young citizens justifies a variety of protective measures. Because he may not foresee the consequences of his decision, a minor may not make an enforceable bargain. He may not lawfully work or travel where he pleases, or even attend exhibitions of constitutionally protected adult motion pictures. Persons below a certain age may not marry without parental consent. Indeed, such consent is essential even when the young woman is already pregnant. The State's interest in protecting a young person from harm justifies the imposition of restraints on his or her freedom even though comparable restraints on adults would be constitutionally impermissible. Therefore, the holding in Roe v. Wade [410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973)] that the abortion decision is entitled to constitutional protection merely emphasizes the importance of the decision; it does not lead to the conclusion that the state legislature has no power to enact legislation for the purpose of protecting a young pregnant woman from the consequences of an incorrect decision.
61
"The abortion decision is, of course, more important than the decision to attend or to avoid an adult motion picture, or the decision to work long hours in a factory. It is not necessarily any more important than the decision to run away from home or the decision to marry. But even if it is the most important kind of a decision a young person may ever make, that assumption merely enhances the quality of the State's interest in maximizing the probability that the decision be made correctly and with full understanding of the consequences of either alternative." 428 U.S., at 102-103, 96 S.Ct., at 2857.
62
In my opinion, the special importance of a young woman's abortion decision, emphasized by Justice MARSHALL in dissent, post, at 435-436, provides a special justification for reasonable state efforts intended to ensure that the decision be wisely made. Such reasonable efforts surely may include a requirement that an abortion be procured only after consultation with a licensed physician. And, because "the most significant consequences of the [abortion] decision are not medical in character," 428 U.S., at 103, 96 S.Ct. at 2856, the State unquestionably has an interest in ensuring that a young woman receive other appropriate consultation as well. In my opinion, the quality of that interest is plainly sufficient to support a state legislature's determination that such appropriate consultation should include parental advice.
63
Of course, a conclusion that the Utah statute is invalid would not prevent young pregnant women from voluntarily seeking the advice of their parents prior to making the abortion decision. But the State may legitimately decide that such consultation should be made more probable by ensuring that parents are informed of their daughter's decision:
64
"If there is no parental-[notice] requirement, many minors will submit to the abortion procedure without ever informing their parents. An assumption that the parental reaction will be hostile, disparaging, or violent no doubt persuades many children simply to bypass parental counsel which would in fact be loving, supportive, and, indeed, for some indispensable. It is unrealistic, in my judgment, to assume that every parent-child relationship is either (a) so perfect that communication and accord will take place routinely or (b) so imperfect that the absence of communication reflects the child's correct prediction that the parent will . . . [act] arbitrarily to further a selfish interest rather than the child's interest. A state legislature may conclude that most parents will be primarily interested in the welfare of their children,1 and further, that the imposition of a parental-[notice] requirement is an appropriate method of giving the parents an opportunity to foster that welfare by helping a pregnant distressed child to make and to implement a correct decision." Id., at 103-104, 96 S.Ct., at 2856-2857. (STEVENS, J.).
65
Utah's interest in its parental-notice statute is not diminished by the fact that there can be no guarantee that meaningful parent-child consultation will actually occur. Good-faith compliance with the statute's requirements would tend to facilitate communication between daughters and parents regarding the abortion decision. The possibility that some parents will not react with compassion and understanding upon being informed of their daughter's predicament or that, even if they are receptive, they will incorrectly advise her, does not undercut the legitimacy of the State's attempt to establish a procedure that will enhance the probability that a pregnant young woman exercise as wisely as possible her right to make the abortion decision.
66
The fact that certain members of the class of unmarried "minor women who are suffering unwanted pregnancies and desire to terminate the pregnancies" may actually be emancipated or sufficiently mature to make a well-reasoned abortion decision does not, in my view, undercut the validity of the Utah statute. As I stated in Danforth, a state legislature has constitutional power to utilize, for purposes of implementing a parental-notice requirement, a yardstick based upon the chronological age of unmarried pregnant women. That this yardstick will be imprecise or even unjust in particular cases does not render its use by a state legislature impermissible under the Federal Constitution. 428 U.S., at 104-105, 96 S.Ct. at 2857. Accordingly, I would reach the question reserved by the Court and hold that the Utah parental-notice statute is constitutionally valid as applied to all members of the certified class.2
67
Because my view in this case, as in Danforth, is that the State's interest in protecting a young pregnant woman from the consequences of an incorrect abortion decision is sufficient to justify the parental-notice requirement, I agree that the decision of the Utah Supreme Court should be affirmed.
68
Justice MARSHALL, with whom Justice BRENNAN and Justice BLACKMUN join, dissenting.
69
The decision of the Court is narrow. It finds shortcomings in appellant's complaint and therefore denies relief. Thus, the Court sends out a clear signal that more carefully drafted pleadings could secure both a plaintiff's standing to challenge the overbreadth of Utah Code Ann. § 76-7-304(2) (1978), and success on the merits.1
70
Nonetheless, I dissent. I believe that even if the complaint is defective, the majority's legal analysis is incorrect and it yields an improper disposition here. More important, I cannot agree with the majority's view of the complaint, or its standing analysis. I therefore would reverse the judgment of the Supreme Court of Utah.
71
* The Court finds appellant's complaint defective because it fails to allege that she is mature or emancipated, and neglects to specify her reasons for wishing to avoid notifying her parents about her abortion decision. As a result, the Court reasons, appellant lacks standing to challenge the overbreadth of the Utah parental notification statute.2
72
The majority's standing analysis rests on prudential concerns and not on the constitutional limitations set by Art. III. See Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99-100, 99 S.Ct. 1601, 1607, 60 L.Ed.2d 66 (1979); Warth v. Seldin, 422 U.S. 490, 498-499, 517-518, 95 S.Ct. 2197, 2204-2205, 2214-2215, 45 L.Ed.2d 343 (1975). For the Court does not question that appellant's injury due to the statute's requirement falls within the legally protected ambit of her privacy interest, and that the relief requested would remedy the harm. See ante, at 407-409 (majority opinion); ante, at 418-419 (opinion of POWELL, J.). The Court decides only that appellant cannot challenge the blanket nature of the statute because she neglected to allege that by her personal characteristics, she is a member of particular groups that undoubtedly deserve exemption from a parental notice requirement.3 Thus, the Court seems to apply the familiar prudential principle that an individual should not be heard to raise the rights of other persons. This principle, of course, has not precluded standing in other instances where, as here, the party has established the requisite and legally protected interest capable of redress through the relief requested.4 See, e. g., Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 80-81, 98 S.Ct. 2620, 2634-2635, 57 L.Ed.2d 595 (1978); Singleton v. Wulff, 428 U.S. 106, 113-118, 96 S.Ct. 2868, 2873-2874, 49 L.Ed.2d 826 (1976) (plurality opinion of BLACKMUN, J.); Doe v. Bolton, 410 U.S. 179, 188-189, 93 S.Ct. 739, 745-746, 35 L.Ed.2d 201 (1973); Griswold v. Connecticut, 381 U.S. 479, 481, 85 S.Ct. 1678, 1680, 14 L.Ed.2d 510 (1965); NAACP v. Alabama, 357 U.S. 449, 459-460, 78 S.Ct. 1163, 1170-1171, 2 L.Ed.2d 1488 (1958); Barrows v. Jackson, 346 U.S. 249, 259, 73 S.Ct. 1031, 1036, 97 L.Ed. 1586 (1953).
73
I do not believe that prudential considerations should bar standing here, for I am persuaded that appellant's complaint establishes a claim that notifying her parents would not be in her best interests.5 She alleged that she "believes that it is in her best interest that her parents not be informed of her [pregnant] condition," Complaint ¶ 6, App. 4, and that after consulting with her physician, attorney, and social worker, "she understands what is involved in her decision" to seek an abortion, Complaint ¶ 9, App. 4.6 This claim was further supported, albeit without detail, at the evidentiary hearing. There appellant testified she did not feel she could discuss the abortion decision with her parents even after she consulted a social worker on the issue. Tr. 8, App. 26.7 In my judgment, appellant has adequately asserted that she has persistently held reasons for believing parental notice would not be in her best interests. This provides a sufficient basis for standing to raise the challenge in her complaint. Appellant seeks to challenge a state statute, construed definitively by the highest court of that State to permit no exception to the notice requirement on the basis of any reasons offered by the minor. 604 P.2d 907, 913 (Utah 1979). As standing is a jurisdictional issue, separate and distinct from the merits, a court need not evaluate the persuasiveness of her reasons for opposing parental notice to conclude that appellant has a concrete interest in determining whether the parental notice statute is valid.8
74
Yet even if the Court's view of appellant's complaint is correct, and even if prudence calls for denying her standing to raise the overbreadth claim, the Court erroneously concludes that the class represented by appellant suffers the identical standing disability. In so doing, the Court is apparently indifferent to the federalism or comity issues arising when this Court presumes to supervise the procedural determinations made by a state trial court under state law. Even if application of federal law governing class actions were appropriate in this case, the majority misapplies federal law by disturbing the class definition as approved by the trial court. The Court acknowledges, ante, at 401, 404 (BURGER, C.J.); ante, at 417, n. 6 (POWELL, J.), that the trial court granted appellant's motion to represent a class, and it is undisputed that this class includes all "minor women who are suffering unwanted pregnancies and desire to terminate the pregnancies but may not do so inasmuch as their physicians will not perform an abortion upon them without compliance with the provisions of Section 76-7-304(2)." Complaint ¶ 10, App. 5. This class by definition includes all minor women, self-supporting or dependent, sophisticated or naive, as long as the Utah statute interferes with the ability of these women to decide with their physicians to obtain abortions. If the Court is correct that appellant cannot raise challenges based on the interest of emancipated or mature minors, or others whose best interests call for avoiding parental notification, the proper disposition under federal law would be a remand. This remand would protect such class members by permitting the trial court to determine whether appellant is a proper and adequate class representative, and whether her claims are sufficiently similar to the class to warrant the class action.9 Since the trial court enjoys considerable latitude in approving class actions, such a remand is appropriate only on those rare occasions where the reviewing court discerns an abuse of discretion.10 But where an abuse of discretion is clear from the record, remand should ensue, and could result in redefinition or dismissal of the class, addition of other named plaintiffs to represent interests appellant cannot advance, or creation of subclasses with additional representative parties.11 In contrast, it is improper to assume appellant adequately represents the entire class as defined by the trial court, but redefine the class appellant is deemed to represent, and deny relief on that basis.12 Nonetheless, that is exactly the course selected by the majority today.
75
I instead assume that appellant adequately represents the class which the trial judge concluded she represents—all minor women seeking an abortion but finding the parental notice requirement an obstacle. I then would find that their rights and interests can be raised here by appellant in support of a facial challenge to the Utah statute, and conduct the appropriate review of appellant's claims. II
76
Because the Court's treatment is so cursory, I review appellant's claims with due attention to our precedents.
77
Our cases have established that a pregnant woman has a fundamental right to choose whether to obtain an abortion or carry the pregnancy to term. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973).13 Her choice, like the deeply intimate decisions to marry,"14 to procreate,15 and to use contraceptives,16 is guarded from unwarranted state intervention by the right to privacy.17 Grounded in the Due Process Clause of the Fourteenth Amendment, the right to privacy18 protects both the woman's "interest in independence in making certain kinds of important decisions" and her "individual interest in avoiding disclosure of personal matters." Whalen v. Roe, 429 U.S. 589, 599-600, 97 S.Ct. 869, 876-877, 51 L.Ed.2d 64 (1977).
78
In the abortion context, we have held that the right to privacy shields the woman from undue state intrusion in, and external scrutiny of, her very personal choice. Thus, in Roe v. Wade, supra, at 164, 93 S.Ct., at 732, we held that during the first trimester of the pregnancy, the State's interests in protecting maternal health or the potential life of the fetus could not override the right of the pregnant woman and the attending physician to make the abortion decision through private, unfettered consultation. We further emphasized the restricted scope of permissible state action in this area when, in Doe v. Bolton, supra, at 198-200, 93 S.Ct., at 750-751, we struck down state-imposed procedural requirements that subjected the woman's private decision with her physician to review by other physicians and a hospital committee.
79
It is also settled that the right to privacy, like many constitutional rights,19 extends to minors. Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976); Bellotti v. Baird, 443 U.S. 622, 639, 99 S.Ct. 3035, 3046, 61 L.Ed.2d 797 (1979) (Bellotti II ) (POWELL, J.); id., at 653, 99 S.Ct., at 3053 (STEVENS, J.); T. H. v. Jones, 425 F.Supp. 873, 881 (Utah 1975), summarily aff'd on other grounds, 425 U.S. 986, 96 S.Ct. 2195, 48 L.Ed.2d 811 (1976). Indeed, because an unwanted pregnancy is probably more of a crisis for a minor than for an adult, as the abortion decision cannot be postponed until her majority, "there are few situations in which denying a minor the right to make an important decision will have consequences so grave and indelible." Bellotti II, supra, at 646, 99 S.Ct., at 3048 (POWELL, J.).20 Thus, for both the adult and the minor woman, state-imposed burdens on the abortion decision can be justified only upon a showing that the restrictions advance "important state interests." Roe v. Wade, 410 U.S., at 154, 93 S.Ct., at 727, accord, Planned Parenthood of Central Mo. v. Danforth, supra, at 61, 96 S.Ct., at 2837. Before examining the state interests asserted here, it is necessary first to consider Utah's claim that its statute does not "imping[e] on a woman's decision to have an abortion" or "plac[e] obstacles in the path of effectuating such a decision." Brief for Appellees 9. This requires an examination of whether the parental notice requirement of the Utah statute imposes any burdens on the abortion decision.
80
The ideal of a supportive family so pervades our culture that it may seem incongruous to examine "burdens" imposed by a statute requiring parental notice of a minor daughter's decision to terminate her pregnancy.21 This Court has long deferred to the bonds which join family members for mutual sustenance. See Pierce v. Society of Sisters, 268 U.S. 510, 534-535, 45 S.Ct. 571, 573, 69 L.Ed. 1070 (1925); May v. Anderson, 345 U.S. 528, 533, 73 S.Ct. 840, 843, 97 L.Ed. 1221 (1953); Griswold v. Connecticut, 381 U.S., at 486, 85 S.Ct., at 1682; Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972); Moore v. East Cleveland, 431 U.S. 494, 504-505, 97 S.Ct. 1932, 1938-1939, 52 L.Ed.2d 531 (1977) (plurality opinion of POWELL, J.). Especially in times of adversity, the relationships within a family can offer the security of constant caring and aid. See id., at 505, 97 S.Ct., at 1938. Ideally, a minor facing an important decision will naturally seek advice and support from her parents, and they in turn will respond with comfort and wisdom.22 If the pregnant minor herself confides in her family, she plainly relinquishes her right to avoid telling or involving them. For a minor in that circumstance, the statutory requirement of parental notice hardly imposes a burden.
81
Realistically, however, many families do not conform to this ideal. Many minors, like appellant, oppose parental notice and seek instead to preserve the fundamental, personal right to privacy. It is for these minors that the parental notification requirement creates a problem. In this context, involving the minor's parents against her wishes23 effectively cancels her right to avoid disclosure of her personal choice. See Whalen v. Roe, 429 U.S., at 599-600, 97 S.Ct., at 876-877. Moreover, the absolute notice requirement publicizes her private consultation with her doctor and interjects additional parties in the very conference held confidential in Roe v. Wade, supra, at 164, 93 S.Ct., at 732. Besides revealing a confidential decision, the parental notice requirement may limit "access to the means of effectuating that decision." Carey v. Population Services International, 431 U.S. 678, 688, 97 S.Ct. 2010, 2017, 52 L.Ed.2d 675 (1977). Many minor women will encounter interference from their parents after the state-imposed notification.24 In addition to parental disappointment and disapproval, the minor may confront physical or emotional abuse, withdrawal of financial support, or actual obstruction of the abortion decision. Furthermore, the threat of parental notice may cause some minor women to delay past the first trimester of pregnancy, after which the health risks increase significantly.25 Other pregnant minors may attempt to self-abort or to obtain an illegal abortion rather than risk parental notification.26 Still others may foresakean abortion and bear an unwanted child, which, given the minor's "probable education, employment skills, financial resources and emotional maturity, . . . may be exceptionally burdensome." Bellotti II, 443 U.S., at 642, 99 S.Ct., at 3048 (POWELL, J.). The possibility that such problems may not occur in particular cases does not alter the hardship created by the notice requirement on its face.27 And that hardship is not a mere disincentive created by the State,28 but is instead an actual state-imposed obstacle to the exercise of the minor woman's free choice.29 For the class of pregnant minors represented by appellant, this obstacle is so onerous as to bar the desired abortions.30 Significantly, the interference sanctioned by the statute does not operate in a neutral fashion. No notice is required for other pregnancy-related medical care,31 so only the minor women who wish to abort encounter the burden imposed by the notification statute. Because the Utah requirement of mandatory parental notice unquestionably burdens the minor's privacy right, the proper analysis turns next to the State's proffered justifications for the infringements posed by the statute.
III
82
As established by this Court in Planned Parenthood of Central Missouri v. Danforth, supra, the statute cannot survive appellant's challenge unless it is justified by a "significant state interest."32 Further, the State must demonstrate that the means it selected are closely tailored to serve that interest.33 Where regulations burden the rights of pregnant adults, we have held that the state legitimately may be concerned with "protection of health, medical standards, and prenatal life." Roe v. Wade, 410 U.S., at 155, 93 S.Ct., at 728. We concluded, however, that during the first trimester of pregnancy none of these interests sufficiently justifies state interference with the decision reached by the pregnant woman and her physician. Id., at 162-163, 93 S.Ct., at 731. Nonetheless, appellees assert here that the parental notice requirement advances additional state interests not implicated by a pregnant adult's decision to abort. Specifically, appellees contend that the notice requirement improves the physician's medical judgment about a pregnant minor in two ways: it permits the parents to provide additional information to the physician, and it encourages consultation between the parents and the minor woman. Appellees also advance an independent state interest in preserving parental rights and family autonomy. I consider each of these asserted interests in turn.34
83
In upholding the statute, the Utah Supreme Court concluded that the notification provision might encourage parental transmission of "additional information, which might prove invaluable to the physician in exercising his 'best medical judgment.'"35 Yet neither the Utah courts nor the statute itself specifies the kind of information contemplated for this purpose, nor why it is available to the parents but not to the minor woman herself. Most parents lack the medical expertise necessary to supplement the physician's medical judgment, and at best could provide facts about the patient's medical history. It seems doubtful that a minor mature enough to become pregnant and to seek medical advice on her own initiative would be unable or unwilling to provide her physician with information crucial to the abortion decision. In addition, by law the physician already is obligated to obtain all information necessary to form his best medical judgment,36 and nothing bars consultation with the parents should the physician find it necessary.
84
Even if mandatory parental notice serves a substantial state purpose in this regard, the Utah statute fails to implement it. Simply put, the statute on its face does not require or even encourage the transfer of information; it does not even call for a conversation between the physician and the parents. A letter from the physician to the parents would satisfy the statute, as would a brief telephone call made moments before the abortion.37 Moreover, the statute is patently underinclusive if its aim is the transfer of information known to the parents but unavailable from the minor woman herself. The statute specifically excludes married minors from the parental notice requirement; only her husband need be told of the planned abortion, Utah Code Ann. § 76-7-304(2) (1978), and Utah makes no claim that he possesses any information valuable to the physician's judgment but unavailable from the pregnant woman. Furthermore, no notice is required for other pregnancy-related care sought by the minor. See Utah Code Ann. § 78-14-5(4)(f) (1977) (authorizing woman of any age to consent to pregnancy-related medical care). The minor woman may consent to surgical removal and analysis of amniotic fluid, caesarian delivery, and other medical care related to pregnancy. The physician's decisions concerning such procedures would be enhanced by parental information as much as would the abortion decision, yet only the abortion decision triggers the parental notice requirement. This result is especially anomalous given the comparatively lesser health risks associated with abortion as contrasted with other pregnancy-related medical care.38 Thus, the statute not only fails to promote the transfer of information as is claimed, it does not apply to other closely related contexts in which such exchange of information would be no less important. The goal of promoting consultation between the physician and the parents of the pregnant minor cannot sustain a statute that is so ill-fitted to serve it.39
B
85
Appellees also claim the statute serves the legitimate purpose of improving the minor's decision by encouraging consultation between the minor woman and her parents. Appellees do not dispute that the State cannot legally or practically require such consultation.40 Nor do appellees contest the fact that the decision is ultimately the minor's to make.41 Nonetheless, the State seeks through the notice requirement to give parents the opportunity to contribute to the minor woman's abortion decision.
86
Ideally, facilitation of supportive conversation would assist the pregnant minor during an undoubtedly difficult experience. Again, however, when measured against the rationality of the means employed, the Utah statute simply fails to advance this asserted goal. The statute imposes no requirement that the notice be sufficiently timely to permit any discussion between the pregnant minor and the parents. Moreover, appellant's claims require us to examine the statute's purpose in relation to the parents who the minor believes are likely to respond with hostility or opposition. In this light, the statute is plainly overbroad. Parental consultation hardly seems a legitimate state purpose where the minor's pregnancy resulted from incest, where a hostile or abusive parental response is assured, or where the minor's fears of such a response deter her from the abortion she desires. The absolute nature of the statutory requirement, with exception permitted only if the parents are physically unavailable, violates the requirement that regulations in this fundamentally personal area be carefully tailored to serve a significant state interest.42 "The need to preserve the constitutional right and the unique nature of the abortion decision, especially when made by a minor, require a State to act with particular sensitivity when it legislates to foster parental involvement in this matter." Bellotti II, 443 U.S., at 642, 99 S.Ct., at 3047 (POWELL, J.). Because Utah's absolute notice requirement demonstrates no such sensitivity, I cannot approve its interference with the minor's private consultation with the physician during the first trimester of her pregnancy.
C
87
Finally, the appellees assert a state interest in protecting parental authority and family integrity.43 This Court, of course, has recognized that the "primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition." Wisconsin v. Yoder, 406 U.S. 205, 232, 92 S.Ct. 1526, 1541, 32 L.Ed.2d 15 (1972). See Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). Indeed, "those who nurture [the child] and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations." Pierce v. Society of Sisters, 268 U.S., at 535, 45 S.Ct., at 573. Similarly, our decisions "have respected the private realm of family life which the state cannot enter." Prince v. Massachusetts, supra, at 166, 64 S.Ct., at 442. See also Moore v. East Cleveland, 431 U.S., at 505, 97 S.Ct., at 1938.
88
The critical thrust of these decisions has been to protect the privacy of individual families from unwarranted state intrusion.44 Ironically, appellees invoke these decisions in seeking to justify state interference in the normal functioning of the family. Through its notice requirement, the State in fact enters the private realm of the family rather than leaving unaltered the pattern of interactions chosen by the family. Whatever its motive, state intervention is hardly likely to resurrect parental authority that the parents themselves are unable to preserve.45 In rejecting a statute permitting parental veto of the minor woman's abortion decision inPlanned Parenthood of Central Mo. v. Danforth, 428 U.S., at 75, 96 S.Ct., at 2844, we found it difficult to conclude that
89
"providing a parent with absolute power to overrule a determination, made by the physician and his minor patient, to terminate the patient's pregnancy will serve to strengthen the family unit. Neither is it likely that such veto power will enhance parental authority or control where the minor and the nonconsenting parent are so fundamentally in conflict and the very existence of the pregnancy already has fractured the family structure."
90
More recently, in Bellotti II, supra, at 638, 99 S.Ct., at 3045. Justice POWELL observed that efforts to guide the social and moral development of young people are "in large part . . . beyond the competence of impersonal political institutions." Appellees maintain, however, that Utah's statute "merely safeguards a reserved right which parents have to know of the important activities of their children by attempting to prevent a denial of the parental rights through deception.' Brief for Appellees 3. Casting its purpose this way does not salvage the statute. For when the threat to parental authority originates not from the State but from the minor child, invocation of "reserved" rights of parents cannot sustain blanket state intrusion into family life such as that mandated by the Utah statute. Such a result not only runs counter to the private domain of the family which the State may not breach; it also conflicts with the limits traditionally placed on parental authority. Parental authority is never absolute, and has been denied legal protection when its exercise threatens the health or safety of the minor children. E. g., Prince v. Massachusetts, supra, at 169-170, 64 S.Ct., at 443-444. Indeed, legal protection for parental rights is frequently tempered if not replaced by concern for the child's interest.46 Whatever its importance elsewhere, parental authority deserves de minimis legal reinforcement where the minor's exercise of a fundamental right is burdened.
91
To decide this case, there is no need to determine whether parental rights never deserve legal protection when their assertion conflicts with the minor's rights and interests.47 I conclude that this statute cannot be defended as a mere reinforcement of existing parental rights, for the statute reaches beyond the legal limits of those rights. The statute applies, without exception, to emancipated minors,48 mature minors,49 and minors with emergency health care needs,50 all of whom, as Utah recognizes, by law have long been entitled to medical care unencumbered by parental involvement. Most relevant to appellant's own claim, the statutory restriction applies even where the minor's best interests—as evaluated by her physician—call for an abortion. The Utah trial court found as a fact that appellant's physician "believed along with her that she should be aborted and that he felt it was in her best medical interest to do so but he could not and would not perform an abortion upon her without informing her parents prior to aborting her because it was required of him by that statute and he was unwilling to perform an abortion upon her without complying with the provisions of the statute even though he believed it was best to do so." Civ.No. C-78-2719 (Dec. 26, 1978) (Findings of Fact ¶ 7). Even if further review by adults other than her physician, counselor, and attorney were necessary to assess the minor's best interests, see Bellotti II, 443 U.S., at 640-641, 643-644, 99 S.Ct., at 3046-3047, 3048-3049 (opinion of POWELL, J.), Utah's rejection of any exception to the notice requirement for a pregnant minor is plainly overbroad. In Bellotti II, we were unwilling to cut a pregnant minor off from any avenue to obtain help beyond her parents, and yet the Utah statute does just that.
92
In this area, I believe this Court must join the state courts and legislatures which have acknowledged the undoubted social reality: some minors, in some circumstances, have the capacity and need to determine their health care needs without involving their parents. As we recognized in Planned Parenthood of Central Mo. v. Danforth, 428 U.S., at 75, 96 S.Ct., at 2844, "[a]ny independent interest the parent may have in the termination of the minor daughter's pregnancy is no more weighty than the right of privacy of the competent minor mature enough to have become pregnant."51 Utah itself has allocated pregnancy-related health care decisions entirely to the pregnant minor.52 Where the physician has cause to doubt the minor's actual ability to understand and consent, by law he must pursue the requisites of the State's informed consent procedures.53 The State cannot have a legitimate interest in adding to this scheme mandatory parental notice of the minor's abortion decision. This conclusion does not affect parents' traditional responsibility to guide their children's development, especially in personal and moral concerns. I am persuaded that the Utah notice requirement is not necessary to assure parents this traditional child-rearing role, and that it burdens the minor's fundamental right to choose with her physician whether to terminate her pregnancy.54
IV
93
In its eagerness to avoid the clear application of our precedents, the Court today relies on a mistaken view of class-action law and prudential standing requirements. The Court's avoidance of the issue presented by the complaint nonetheless leaves our precedents intact. Under those precedents, I have no doubt that the challenged statute infringes upon the constitutional right to privacy attached to a minor woman's decision to complete or terminate her pregnancy. None of the reasons offered by the State justifies this intrusion, for the statute is not tailored to serve them. Rather than serving to enhance the physician's judgment, in cases such as appellant's, the statute prevents implementation of the physician's medical recommendation. Rather than promoting the transfer of information held by parents to the minor's physician, the statute neglects to require anything more than a communication from the physician moments before the abortion. Rather than respecting the private realm of family life, the statute invokes the criminal justice machinery of the State in an attempt to influence the interactions within the family. Accordingly, I would reverse the judgment of the Supreme Court of Utah insofar as it upheld the statute against constitutional attack.
1
Whether parents of a minor are liable under Utah law for the expense of an abortion and related aftercare is not disclosed by the record.
Utah also provides by statute that no abortion may be performed unless a "voluntary and informed written consent" is first obtained by the attending physician from the patient. In order for such a consent to be "voluntary and informed," the patient must be advised at a minimum about available adoption services, about fetal development, and about foreseeable complications and risks of an abortion. See Utah Code Ann. § 76-7-305 (1978). In Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 65-67, 96 S.Ct. 2831, 2839, 2840, 49 L.Ed.2d 788 (1976), we rejected a constitutional attack on written consent provisions.
2
Utah Code Ann. §§ 76-7-314(3), 76-3-204(1), 76-3-301(3) (1978).
3
Appellant's counsel stated in his jurisdictional statement and again in his brief that the physician concluded not only that an abortion would be in appellant's best interests, but also that parental notification would not be in appellant's best interests. However, at oral argument, counsel corrected this statement and conceded that there is no evidence to support this assertion. Tr. of Oral Arg. 8, 17.
4
The record does not reveal whether appellant proceeded with the abortion.
5
The trial judge allowed appellant to proceed without appointment of a guardian ad litem. He noted that a guardian would be required to notify the parents.
6
The testimony was as follows:
"BY MR. DOLOWITZ[, appellant's counsel]:
"Q At the time that the Complaint in this matter was signed, you were pregnant?
"A Yes.
"Q You had consulted with a counselor about that pregnancy?
"A Yeah.
"Q You had determined after talking to the counselor that you felt you should get an abortion?
"A Yes.
"Q You felt that you did not want to notify your parents—
"A Right.
"Q —of that decision? You did not feel for your own reasons that you could discuss it with them?
"A Right.
"Q After discussing the matter with a counselor, you still believed that you should not discuss it with your parents?
"A Right.
"Q And they shouldn't be notified?
"A Right.
"Q After talking the matter over with a counselor, the counselor concurred in your decision that your parents should not be notified?
"A Right.
"Q You were advised that an abortion couldn't be performed without notifying them?
"A Yes.
"Q You then came to me to see about filing a suit?
"A Right.
"Q You and I discussed it as to whether or not you had a right to do what you wanted to do?
"A Yes.
"Q You decided that, after our discussion, you should still proceed with the action to try to obtain an abortion without notifying your parents?
"A Right.
"Q Now, at the time that you signed the Complaint and spoke with the counselor and spoke with me, you were in the first trimester of pregnancy, within your first twelve weeks of pregnancy?
"A Yes.
"Q You feel that, from talking to the counselor and thinking the situation over and discussing it with me, that you could make the decision on your own that you wished to abort the pregnancy?
"A Yes.
"Q You are living at home?
"A Yes.
"Q You still felt, even though you were living at home with your parents, that you couldn't discuss the matter with them?
"A Right."
Tr. 5-7.
7
"BY MR. McCARTHY[, counsel for the State]:
"Q . . . Are you still living at home?
"A Yes.
"Q Are you dependent on you parents?
"A Yes.
"Q All your money comes from them?
"A Yes.
"Q How old are you now?
"A Fifteen.
"Q Aside from the issue of abortion, do you have any reason to feel that you can't talk to your parents about other problems?
"A Yes.
"Q What are those reasons?
"MR. DOLOWITZ: Now you are moving into the problem area that I indicated. . . ."
Id., at 8.
8
Id., at 10. Appellant repeatedly pressed this point despite the trial court's statements that it could "conceive of a situation where a child probably wouldn't have to tell the parents" and that the statute "might be [u]nconstitutional as it relates to a particular fact situation but [c]onstitutional as it relates to another fact situation." Id., at 10, 17.
There is no evidence to support the "surmise" in the dissent, post, at 438, n. 24, that "appellant expects family conflict over the abortion decision."
9
Tr. 18.
10
The trial judge adopted, verbatim, findings of fact and conclusions of law prepared by appellant. The findings, the conclusions, and the opinion of the State Supreme Court make no mention whatsoever of the precise limits of the class.
11
The trial judge also ruled that the statute does not violate 42 U.S.C. § 1983.
12
In Bellotti II, by contrast, the principal class consisted of "unmarried [pregnant] minors in Massachusetts who have adequate capacity to give a valid and informed consent [to abortion], and who do not wish to involve their parents." 443 U.S., at 626, 99 S.Ct., at 3039 (emphasis supplied). The courts considered the rights of "all pregnant minors who might be affected" by the statute. Id., at 627, n. 5, 99 S.Ct., at 3039-3040, n. 5.
13
The record shows that the State unsuccessfully argued in the trial court that it should be permitted to inquire into appellant's degree of maturity. Tr. 11.
Justice STEVENS and the dissent argue that the Utah Supreme Court held that the statute may validly be applied to all members of the class described in the complaint. Post, at 421, 430, 431, 432-433. However, as we have shown, neither of the state courts mentioned the scope or limits of the class. See n. 10, supra. Moreover, appellant's counsel prepared the findings and conclusions. In addition to considerations of standing, we construe the ambiguity against appellant.
14
There is no authority for the view expressed in the dissent that the statute would apply to "minors with emergency health care needs." Post, at 450-451. Appellant does not so contend, and the Utah Supreme Court in this case took pains to say that time is of the essence in an abortion decision. 604 P.2d 907, 913 (1979). When the specific question was properly posed in Bellotti II, the Massachusetts statute was construed by the state court not to apply in such cases. 443 U.S., at 630, 99 S.Ct., at 3041.
The same is true for minors with hostile home situations, a class referred to by appellant's amici curiae and by the dissent, post, at 437-441.
15
Bellotti II, 443 U.S., at 642-643, 653-656, 99 S.Ct., at 3053-3055; Danforth, 428 U.S., at 74, 96 S.Ct., at 2843.
16
Bellotti II, supra, at 640, 649, 99 S.Ct., at 3046, 3051; id., at 657, 99 S.Ct., at 3055 (dissenting opinion); Danforth, supra, at 90-91, 96 S.Ct., at 2850-2851 (concurring opinion); see Bellotti v. Baird, 428 U.S. 132, 145, 147, 96 S.Ct. 2857, 2865, 2866, 49 L.Ed.2d 844 (1976) (Bellotti I ); cf. Carey v. Population Services International, 431 U.S. 678, 709-710, 97 S.Ct. 2010, 2028-2029, 52 L.Ed.2d 675 (1977).
17
The main premise of the dissent seems to be that a requirement of notice to the parents is the functional equivalent of a requirement of parental consent. See post, at 437-441. In Bellotti II, however, we expressly declined to equate notice requirements with consent requirements. 443 U.S., at 640, 657, 99 S.Ct., at 3046, 3055.
18
Bellotti II, supra, at 637-639, 99 S.Ct., at 3045-3046. The short shrift given by the dissent to "parental authority and family integrity," post, at 447, runs contrary to a long line of constitutional cases in this Court. See cases cited supra, at 410.
19
Bellotti II, supra, at 634-637, 99 S.Ct., at 3043-3045.
20
Abortion is associated with an increased risk of complication in subsequent pregnancies. Maine, Does Abortion Affect Later Pregnancies?, 11 Family Planning Perspectives 98 (1979). The emotional and psychological effects of the pregnancy and abortion experience are markedly more severe in girls under 18 than in adults. Wallerstein, Kurtz, & Bar-Din, Psychosocial Sequelae of Therapeutic Abortion in Young Unmarried Women, 27 Arch. Gen. Psychiatry 828 (1972); see also Babikian & Goldman, A Study in Teen-Age Pregnancy, 128 Am.J. Psychiatry 755 (1971).
21
At least five States have enacted parental notification statutes containing brief mandatory waiting periods. See La.Rev.Stat.Ann. § 40:1299.35.5 (West Supp.1981) (24 hours' actual notice or 72 hours' constructive notice except for court-authorized abortions); Mass.Gen.Laws Ann., ch. 112, § 128 (West Supp.1981) (24 hours); Me.Rev.Stat.Ann., Tit. 22, § 1597 (1980) (24 hours); N.D.Cent.Code § 14-02.1-03 (Supp.1979) (24 hours); Tenn.Code Ann. § 39-302 (Supp.1979) (two days).
22
Members of the particular class now before us in this case have no constitutional right to notify a court in lieu of notifying their parents. See Bellotti II, supra, at 647, 99 S.Ct., at 2590. This case does not require us to decide in what circumstances a state must provide alternatives to parental notification.
23
See Utah Code Ann. § 78-14-5(4)(f) (1977) (permitting any female to give informed consent "to any health care not prohibited by law . . . in connection with her pregnancy or childbirth").
24
See also Bellotti II, 443 U.S., at 643-644, 99 S.Ct. at 3048-3049; Bellotti I, 428 U.S., at 148-149, 96 S.Ct., at 2866-2867; Danforth, 428 U.S., at 65-67, 79-81, 96 S.Ct., at 2839-2840, 2845-2847; Connecticut v. Menillo, 423 U.S. 9, 11, 96 S.Ct. 170, 171, 46 L.Ed.2d 152 (1975); West Side Women's Services, Inc. v. City of Cleveland, 450 F.Supp. 796, 798 (N.D.Ohio), affirmance order, 582 F.2d 1281 (6 Cir.).
25
Appellant argues that the statute violates her right to secure necessary treatment from a physician who, in the exercise of his best medical judgment, does not believe the parents should be notified. Since there is no evidence that the physician had such an opinion, we decline to reach this question. See supra, at 401, n. 3, and 405-407.
The dissenting opinion purports to see in the Court's opinion "a clear signal" as to how the Court will decide a future case concerning this or a similar statute, and goes on to forecast a successful challenge on the merits. Today, of course, the Court's function is to decide only the question properly presented in this case, and there is no occasion to intimate or predict a view as to the proper resolution of some future case. Speaking for the unanimous Court in Kleppe v. New Mexico, 426 U.S. 529, 96 S.Ct. 2285, 49 L.Ed.2d 34 (1976), Justice MARSHALL took note of the impropriety of deciding constitutional questions "in the absence of 'an adequate and full-bodied record.' " Id., 426 U.S., at 546, 96 S.Ct., at 2295; quoting Public Affairs Associates, Inc. v. Rickover, 369 U.S. 111, 113, 82 S.Ct. 580, 582, 7 L.Ed.2d 694 (1962).
1
Section 76-7-304 is quoted in full in the Court's opinion. Ante, at 400.
2
Appellant's testimony on direct examination is quoted in full in the Court's opinion. Ante, at 402-403, n. 6.
3
Appellant's testimony on cross-examination is quoted in full in the Court's opinion. Ante, at 403, n. 7.
4
After his direct examination of appellant and the State's brief cross-examination, appellant's lawyer insisted repeatedly during subsequent argument that "there is no relevancy to any other facts," Tr., 17; that "the particular facts that come before [a minor's doctor] are irrelevant," id., at 18; and that "[t]he specific facts of any individual case, no matter how ridiculous they are or how strong or weak they are, really become irrelevant," ibid. In summarizing his position, appellant's lawyer stated: "Our position is that it is the doctor/patient relationship that is the key. If the doctor determines he should go ahead with the patient, then he should. The specific facts in any case, whether [the doctor] is wrong or right, are [c]onstitutionally protected to make that decision and go ahead and act on it. This is why I say it is irrelevant." Ibid.
5
At the end of the evidentiary hearing, appellant's lawyer framed the trial court's ruling as follows:
"If your ruling is that 'if possible' [as used in the statute means "physically possible"] and there are no circumstances whatever that justify the violation of the statute, then the issue is closed." Id., at 19.
6
Because this case is a class action, it might be presumed that other members could raise the question whether a pregnant minor has a right to abortion, without parental notice, upon a showing that she is mature or that her parents will interfere with her abortion. But the record in this case contains no facts to support a presumption that the class includes such members. The only complaint allegations about the class are that appellant's claims "are typical of the claims of all members of the class," and that the class consists of "minor women who are suffering unwanted pregnancies and desire to terminate the pregnancies but may not do so inasmuch as their physicians will not perform an abortion upon them without compliance with the provisions of Section 76-7-304(2)." Complaint ¶ 10. Thus, the record supports only the conclusion that the class consists entirely of pregnant minors who assert the identical claim that appellant presents: a constitutional right to an abortion without notifying their parents, and without claiming to be mature or that notification would not be in their best interest. In short, the class members like appellant—assert an absolute right to make this decision themselves, independently of everyone except a physician.
7
The trial court entered finding of fact and conclusions of law after the evidentiary hearing. Paragraph 7 of the trial court's findings reads:
"The plaintiff consulted with a counselor to assist her in deciding whether or not she should terminate her pregnancy. She determined, after consultation with her counselor, that she should secure an abortion, but was advised when consulting her physician that under the provisions of Section 76-7-304(2), Utah Code Annotated, 1953, that he believed along with her that she should be aborted and that he felt it was in her best medical interest to do so but he could not and would not perform an abortion upon her without informing her parents prior to aborting her because it was required of him by that statute and he was unwilling to perform an abortion upon her without complying with the provisions of the statute even though he believed it was best to do so." Civil No. C-78-2719 (Dec. 26, 1978).
Precisely what this paragraph finds is ambiguous. At the least, it finds that appellant "consulted" a physician and that the physician agreed with appellant that an abortion would be in appellant's best medical interest. The final portion of the finding—"he was unwilling to perform an abortion upon her without complying with the provisions of the statute even though he believed it was best to do so"—could be read to find that the physician also agreed with appellant that "it was best" to "perform an abortion upon her without complying with the provisio[n]" requiring parental notice. Or, the final portion could be read to find only that the physician would not perform an abortion without complying with the statute even though he believed that "it was best" to abort appellant's pregnancy. In light of appellant's limited allegations and testimony, and the legal argument of her lawyer, the trial court's finding cannot be read as saying that the physician determined that appellant's parents would react hostilely or obstructively to notice of appellant's abortion decision.
8
While the medical judgment of a physician of course is to be respected, there is no reason to believe as a general proposition that even the most conscientious physician's interest in the overall welfare of a minor can be equated with that of most parents. Moreover, abortion clinics, now readily available in most urban communities, may be operated on a commercial basis where abortions often may be obtained "on demand." See Planned Parenthood of Central Mo. v. Danforth, supra, 428 U.S. 52, 91-92, n. 2, 96 S.Ct. 2831, 2851, n. 2, 49 L.Ed.2d (1976) (STEWART, J., concurring); Bellotti II, 443 U.S., at 641, n. 21, 99 S.Ct., at 2590, n. 21.
9
Although Bellotti II involved a statute requiring parental consent, the rationale of the plurality opinion with respect to this need is applicable here.
10
The dissenting opinion of Justice MARSHALL, which would hold the Utah statute invalid on its face, elevates the decision of the minor and her physician to an absolute status ignoring state and parental interests.
1
My conclusion, in this case and in Danforth, that a state legislature may rationally decide that most parents will, when informed of their daughter's pregnancy, act with her welfare in mind is consistent with the "pages of human experience that teach that parents generally do act in the child's best interests" relied upon by the Court in Parham v. J. R., 442 U.S. 584, 602-603, 99 S.Ct. 2493, 2504-2505 (1979). It is also consistent with Justice BRENNAN's opinion in Parham, which I joined. Id., at 625-639, 99 S.Ct., at 2515-2522.
As the Court noted in Parham, the presumption that parents act in the best interests of their children may be rebutted by "experience and reality." Id., at 602-603, 99 S.Ct., at 2504-2505. In my opinion, nothing in the fact that a minor child has become pregnant, and therefore may be confronted with the abortion decision, undercuts the general validity of the presumption. However, when parents decide to surrender custody of their child to a mental hospital and thereby destroy the ongoing family relationship, that very decision raises an inference that parental authority is not being exercised in the child's best interests. See id., at 631-632, 99 S.Ct. at 2518-2519 (BRENNAN, J., dissenting in part). Accordingly, while the abortion decision and the commitment decision are of comparable gravity, reliance upon the "pages of human experience" is, in my judgment, more appropriate in the former case than in the latter.
2
The Court's unwillingness to decide whether the Utah statute may constitutionally be applied to the entire class certified by the state courts presumably rests on the assumption that requiring notice to the parents of a mature or emancipated minor might prevent such a minor from obtaining an abortion. See ante, at 406. Almost by definition, however, a woman intellectually and emotionally capable of making important decisions without parental assistance also should be capable of ignoring any parental disapproval. Furthermore, if every minor with the wisdom of an adult has a constitutional right to be treated as an adult, a uniform minimum voting age is surely suspect. Instead of simply enforcing general rules promulgated by the legislature, perhaps the judiciary should grant hearings to all young persons desirous of establishing their status as mature, emancipated minors instead of confining that privilege to unmarried pregnant young women.
1
Under the majority's view, to assure standing, the plaintiff pregnant minor simply need allege her desire to obtain an abortion, her inability to do so because of the statute, and her view that she is emancipated, mature, or that it is in her best interests to have an abortion performed without notifying her parents. The majority finds no standing problem where the complaint alleges that the plaintiff is emancipated or mature, and thus reaffirms the standing analysis employed in Bellotti v. Baird, 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979) (Bellotti II ). See ante, at 406, n. 12. In addition, the Court relies in part on a decision by the Federal District Court in Utah, which enjoined application of the same Utah statute involved here to emancipated minors. L. R. v. Hansen, Civil No. C-80-0078J (Feb. 8, 1980). The Court apparently contemplates that similar challenges will meet with success in the future. For example, the District Court in L. R. v. Hansen also accorded intervenor status and awarded preliminary relief to a minor woman who, like appellant, is under 17 years old and is dependent upon a parent with whom she resides. The only difference between the allegations of the instant appellant and those of that intervenor is the latter's express allegation that parental notice would result in her expulsion from home and destruction of her relationship with her parent. L. R. v. Hansen, Civil No. C-80-0078J (Findings of Fact and Conclusions of Law ¶ 4) (Oct. 24, 1980). Finally, the Court today does not question our prior decision upholding the standing of physicians to challenge abortion restrictions. See n. 4, infra.
2
In essence, the Court concludes that because appellant neglected to make specific allegations about herself and her situation, she "lacks 'the personal stake in the controversy needed to confer standing' to advance the overbreadth argument," ante, at 406 (quoting Harris v. McRae, 448 U.S. 297, 320, 100 S.Ct. 2671, 2690, 65 L.Ed.2d 784 (1980)). The majority thus assumes that a plaintiff raising an overbreadth challenge to an abortion statute must allege that she herself falls within the statute's overbroad reach. The quotation from Harris actually refers to an entirely different kind of standing issue: there the plaintiffs lacked standing because they failed to allege that they were in a position either to seek abortions or to receive Medicaid, and thus they lacked the concrete adverseness necessary to advance their challenge to the Medicaid limit on abortion funding. None of the cases cited for this point in Harris apply to the instant appeal. See O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974) (plaintiffs lack standing because of failure to allege specific injury); Bailey v. Patterson, 369 U.S. 31, 32, 82 S.Ct. 549, 550, 7 L.Ed.2d 512 (1962) (petitioners "lack standing to enjoin criminal prosecutions under Mississippi's breach-of-peace statutes, since they do not allege that they have been prosecuted or threatened with prosecution under them").
A standing limitation on overbreadth challenges to an abortion statute has roots in a context hardly analogous to the instant case. For while we have frequently ruled that criminal defendants lack standing to challenge a statute's overbreadth when their conduct indisputedly falls within the statute's legitimate core, e. g., United States v. National Dairy Products Corp., 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963); United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989 (1954); Williams v. United States, 341 U.S. 97, 71 S.Ct. 576, 95 L.Ed. 774 (1951), these rulings bear little relationship to appellant's challenge to a State's restriction of her exercise of a fundamental right. See Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976); Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973). More relevant, I believe, is our analysis of standing to claim that a statute's overbreadth affects fundamental liberties, primarily those guaranteed by the First Amendment. Because of the risk that exercise of personal freedoms may be chilled by broad regulation, we permit facial overbreadth challenges without a showing that the moving party's conduct falls within the protected core. Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972); Coates v. Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971); United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967); Shuttlesworth v. City of Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969); Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965); Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964); Kunz v. New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280 (1951). See also United States v. Reese, 92 U.S. 214, 23 L.Ed. 563 (1876) (facial challenge under Fifteenth Amendment).
3
See, n. 1, supra. The Court does not question that exceptions from a parental notice requirement are necessary for minors emancipated from the custody or control of their parents, see n. 48, infra, and for minors able to demonstrate their maturity for the purpose of choosing to have an abortion, ante, at 406-407. See also Bellotti II, 443 U.S., at 651, 99 S.Ct., at 3052-3053 (POWELL, J.); id., at 653, 99 S.Ct., at 3053 (STEVENS, J.) Nor does the Court depart from the view, made explicit in Justice POWELL's opinion in Bellotti II, supra, at 651, 99 S.Ct., at 3052-3053, that a State cannot require parental notice when it would not be in the minor's best interests to do so. This position is articulated anew today by Justice POWELL, ante, at 420, and bolstered by the majority, which acknowledges the need for exception where parental notification interferes with emergency medical treatment, ante, at 407, n. 14, and which leaves open the possibility of relief where the minor makes "a claim or showing as to . . . her relations with her parents," ante, at 407, or demonstrates a "hostile home situatio[n]," ante, at 407, n. 14. See also L. R. v. Hansen, Civil No. C-80-0078J (Utah, Feb. 8, 1980, and Oct. 24, 1980).
4
It is especially noteworthy that we have not refrained from according to physicians, threatened with the personal risk of prosecution, standing to challenge abortion restrictions by asserting the rights of any of their patients. E. g., Planned Parenthood of Central Mo. v. Danforth, supra, at 62, 96 S.Ct., at 2837-2838; Doe v. Bolton, supra; Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965).
5
In the instant case, application of the prudential rule causes undue commingling of jurisdictional and merits issues. For here, the third-party interests do not even come into play until appellant wishes to rebut the State's interests, which themselves are asserted only after appellant has established a burden on her protected interests. First, the appellant must satisfy a court that, on the merits, her fundamental right to privacy in consulting her physician about an abortion is burdened by the Utah statute. Only then need the State assert its countervailing state interests, which here include promoting family autonomy and parental authority. And only in rebuttal would appellant next challenge as overbroad the means employed by the State, for the absolute ban regulates the abortion decision of emancipated and mature minors, and others whose best interests call for an abortion without parental notice. Thus, in the name of prudence, the majority's standing analysis depends upon its evaluation of the complicated merits.
6
Appellant's consultation with three professionals casts substantial doubt on Justice POWELL's suggestion, see ante, at 418, that appellant "desires not to explain to anyone her reasons either for wanting the abortion or for not wanting to notify her parents."
7
This portion of the transcript is set out in full ante, at 402-403, n. 6, 403, n. 7.
Justice POWELL correctly reports, ante, at 416-417, that the in-chambers hearing elicited from appellant statements essentially identical to her complaint. And it is also true that counsel for appellant objected to inquiries by the appellees and the trial judge regarding appellant's exact reasons for not wanting to talk with her parents about her pregnancy or other matters. What Justice POWELL neglects to note, however, is that counsel's objections stemmed from the trial court's own ruling that any facts specific to appellant's situation would be irrelevant to the physician's duty under the statute to notify her parents of an abortion decision. Because the trial judge ruled that the statute and its sanctions would apply regardless of the pregnant minor's personal reasons for opposing parental notification, the judge sustained the objections to questions about appellant's particular reasons. Tr. 14-20, App. 31-36. It is this ruling that is the legal basis for the decision below, and not the trial judge's preliminary comments cited by the majority, ante, at 403, n. 8.
8
I also doubt the wisdom in pinning a minor's success in challenging a blanket parental notice requirement to consideration of her particular situation by judges, as opposed to others who are more regularly involved in the counseling of adolescents. Cf. Bellotti II, 443 U.S., at 655-656, 99 S.Ct., at 3054, 3055 (STEVENS, J.).
9
As the Court observed in Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 176, 94 S.Ct. 2140, 2152, 40 L.Ed.2d 732 (1974), the federal class action procedure "was intended to insure that the judgment, whether favorable or not, would bind all class members who did not request exclusion from the suit." The binding effect of the class action's disposition poses serious due process concerns where the interests of class members are not properly presented. 7A C. Wright & A. Miller, Federal Practice and Procedure § 1785 (1972).
Where review of the claims asserted is impaired by an obvious lack of homogenity in the class approved by the trial court, the reviewing court must remand "for reconsideration of the class definition," Kremens v. Bartley, 431 U.S. 119, 134-135, 97 S.Ct. 1709, 1717-1718, 52 L.Ed.2d 184 (1977), and for a determination whether the named plaintiff is a proper representative of the class, Martin v. Thompson Tractor Co., 486 F.2d 510, 511 (CA5 1973).
10
E. g., Bogus v. American Speech & Hearing Assn., 582 F.2d 277 (CA3 1978); Dellums v. Powell, 184 U.S.App.D.C. 275, 566 F.2d 167 (1977), cert. denied, 438 U.S. 916, 98 S.Ct. 3146, 57 L.Ed.2d 1161 (1978); Barnett v. W. T. Grant Co., 518 F.2d 543 (CA4 1975); Arkansas Ed. Assn. v. Board of Ed. of Portland, Arkansas School Dist., 446 F.2d 763 (CA8 1971); Gold Strike Stamp Co. v. Christensen, 436 F.2d 791 (CA10 1970).
It is difficult to conclude that the trial judge below in fact abused his discretion in approving the class. Other courts have approved similar classes represented by similar named plaintiffs, e. g., Gary-Northwest Indiana Women's Services v. Bowen, 421 F.Supp. 734 (ND Ind. 1976) (unmarried pregnant 16-year-old proper representative for class of unmarried pregnant minors under 18 challenging abortion restriction), summarily aff'd, 429 U.S. 1067, 97 S.Ct. 799, 50 L.Ed.2d 785 (1977). Conflict within the class, moreover, seems unlikely, for "it is difficult to imagine why any person in the class appellant represents would have an interest in seeing [the challenged statute] upheld." Sosna v. Iowa, 419 U.S. 393, 403, n. 13, 95 S.Ct. 553, 559, n. 13, 42 L.Ed.2d 532 (1975).
11
A class may need to be redefined, e. g., Gesicki v. Oswald, 336 F.Supp. 371, 374 (SDNY 1971) (three-judge court), divided into sub-classes, e. g., Francis v. Davidson, 340 F.Supp. 351 (D.C.Md.1972) (three-judge court), or otherwise modified, to adequately protect its members' interests. See generally 7 Wright & Miller, supra, §§ 1758-1771 (1972 and Supp.1980).
The majority mistakenly assumes, ante, at 406, n. 13, that it is free to rewrite the class as approved by the trial court because that court based its class definition on submissions from the plaintiff. This assumption runs counter to the general practice in both state and federal courts whereby the party seeking class certification proposes a class definition which is then subject to challenge by the opposing party. See 1 H. Newberg, Class Actions 644 (1977); 5 id., at 1376, 1403. Appellees challenged the class without success, and the State Supreme Court never questioned the trial court's approval of appellant's class.
12
See ante, at 420-421 (opinion of STEVENS, J.). Justice POWELL reasons, ante, at 417, n. 6, that the class members cannot raise the overbreadth claims because the record fails to disclose that they wish to raise such claims. In my view, the record is quite to the contrary. The class members, through their class representative, unequivocally raised in the complaint the overbreadth challenge to the Utah statute. Complaint ¶ 17, App. 6. This claim, along with the other allegations in the complaint, provided the context in which the trial judge approved appellant as class representative. In so approving, the trial court was obliged to ensure that appellant's allegations would adequately protect the interests of the class members, who would be bound by the judgment. If a reviewing court subsequently alters the claims that can be asserted by the named plaintiff, protection of the class interests requires a remand for reconsideration of the adequacy of the named plaintiff as class representative.
13
See also Carey v. Population Services International, 431 U.S. 678, 684-685, 97 S.Ct. 2010, 2015-2016, 52 L.Ed.2d 675 (1977); Griswold v. Connecticut, 381 U.S., at 482-485, 85 S.Ct., at 1680-1682.
14
Zablocki v. Redhail, 434 U.S. 374, 384-386, 98 S.Ct. 673, 680-681, 54 L.Ed.2d 618 (1978); Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 1823-1824, 18 L.Ed.2d 1010 (1967).
15
Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942). See also Cleveland Board of Education v. La Fleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974).
16
Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S.Ct. 1029, 1038, 31 L.Ed.2d 349 (1972); Griswold v. Connecticut, supra; Carey v. Population Services International, supra; Poe v. Ullman, 367 U.S. 497, 539, 81 S.Ct. 1752, 1774-1775, 6 L.Ed.2d 989 (1961) (Harlan, J., dissenting) (ban on contraception is "intolerable and unjustifiable invasion of privacy in the conduct of the most intimate concerns of an individual's personal life").
17
See also Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 1001, 35 L.Ed. 734 (1891) ("No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law").
18
The right has often been termed "the right to be let alone." See Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting) (quoted with approval in Stanley v. Georgia, 394 U.S. 557, 564, 89 S.Ct. 1243, 1247, 22 L.Ed.2d 542 (1969), and Eisenstadt v. Baird, supra, at 453-454, n. 10, 92 S.Ct. 1029, 1038-39, n. 10, 31 L.Ed.2d 349). Defining the spheres within which the government may not act without sufficient justification, the notion of privacy "emanates from the totality of the constitutional scheme under which we live." Poe v. Ullman, supra, at 521, 81 S.Ct., at 1765 (Douglas, J., dissenting).
19
"Constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority. Minors, as well as adults, are protected by the Constitution and possess constitutional rights. See, e. g., Breed v. Jones, 421 U.S. 519 [95 S.Ct. 1779, 44 L.Ed.2d 346] (1975); Goss v. Lopez, 419 U.S. 565 [95 S.Ct. 729, 42 L.Ed.2d 725] (1975); Tinker v. Des Moines School Dist., 393 U.S. 503 [89 S.Ct. 733, 21 L.Ed.2d 731] (1969); In re Gault, 387 U.S. 1 [87 S.Ct. 1428, 18 L.Ed.2d 527] (1967). The Court indeed, however, long has recognized that the State has somewhat broader authority to regulate the activities of children than of adults. Prince v. Massachusetts, 321 U.S., at 170 [64 S.Ct., at 444]; Ginsberg v. New York, 390 U.S. 629 [88 S.Ct. 1274, 20 L.Ed.2d 195] (1968)." Planned Parenthood of Central Mo. v. Danforth, 428 U.S., at 74-75, 96 S.Ct., at 2843.
See also Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) (children entitled to equal protection in schools).
The privacy right does not necessarily guarantee that "every minor, regardless of age or maturity, may give effective consent for termination of her pregnancy." Planned Parenthood of Central Mo. v. Danforth, supra, at 75, 96 S.Ct., at 2844. Utah, however, assigns this consent authority to a woman of any age who seeks pregnancy-related medical care, Utah Code Ann. § 78-14-5(4)(f) (1977), subject to the State's informed consent requirements, see Utah Code Ann. § 76-7-305 (1978); § 78-14-5 (1977). This appeal does not present the broad issue of when may a State require parental consent for a surgical procedure on a minor child, 604 P.2d 907, 910, n. 5 (Utah 1979). At issue here is only the scope of the minor's constitutional privacy right in the face of a statutory parental notice requirement.
20
In striking down a related Utah prohibition against family planning assistance for minors absent parental consent, a Federal District Court reasoned that the "financial, psychological and social problems arising from teenage pregnancy and motherhood argue for our recognition of the right of minors to privacy as being equal to that of adults." T. H. v. Jones, 425 F.Supp. 873, 881 (Utah 1975), summarily aff'd on other grounds, 425 U.S. 986, 96 S.Ct. 2195, 48 L.Ed.2d 811 (1976).
21
Appellee also argues that "[i]t is difficult to contemplate a relationship where the right of privacy as formulated in the abortion context could be less relevant than in the confines of the nuclear family." Brief for Appellees 22. This view, however, was expressly rejected in Planned Parenthood of Central Mo. v. Danforth, supra, at 75, 96 S.Ct., at 2844.
22
Realization of this ideal, however, must depend on the quality of emotional attachments within the family, and not on legal patterns imposed by the State. See Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 554, 54 L.Ed.2d 511 (1978); Moore v. East Cleveland, 431 U.S., at 506, 97 S.Ct., at 1940.
23
Nothing prevents the physician from encouraging the minor to consult with her parents; only the minor who strenuously objects will remain burdened by the notice requirement.
24
The record here contains little about appellant's situation because the trial judge excluded any such evidence as irrelevant to her facial challenge to the mandatory notice requirement. In light of her claim that the notice requirement inhibits the exercise of her right to choose an abortion, however, we may surmise that appellant expects family conflict over the abortion decision. Indeed, the transcript of the evidentiary hearing, quoted ante, at 402-403, n. 6, 403, n. 7 (opinion of BURGER, C. J.), demonstrates that consultation with her social worker, her physician, and her lawyer did not alter appellant's steadfast belief that she could not discuss the issue with her parents.
The records in other cases are also instructive as to the interference posed by some parents to the exercise of some minor's privacy right. See L. R. v. Hansen, Civil No. C-80-0078J (Utah, Oct. 24, 1980) (preliminary relief awarded to minor alleging parent expelled from home minor sister who disclosed facts of pregnancy and abortion); see Women's Community Health Center, Inc. v. Cohen, 477 F.Supp. 542, 548 (Me.1979) (expert affidavits that some parents "will pressure the minor, causing great emotional distress and otherwise disrupting the family relationship"); Baird v. Bellotti, 450 F.Supp. 997, 1001 (Mass.1978) (uncontested evidence some parents "would insist on an undesired marriage, or on continuance of the pregnancy as punishment" or even physically harm the minor); Wynn v. Carey, 582 F.2d 1375, 1388, n. 24 (CA7 1978) (suggesting same problems); In re Diane, 318 A.2d 629, 630 (Del.Ch.1974) (father opposes minor's abortion on religious grounds); State v. Koome, 84 Wash.2d 901, 908, 530 P.2d 260, 265 (1975) (parent thinks forcing daughter to bear child will deter her future pregnancies). See Margaret S. v. Edwards, 488 F.Supp. 181 (ED La.1980). Parents also may oppose a minor's decision not to abort. E. g., In re Smith, 16 Md.App. 209, 295 A.2d 238 (1972). See generally F. Furstenberg, Unplanned Parenthood: The Social Consequences of Teenage Childbearing 54 (1976); Jolly, Young, Female, and Outside the Law, in Teenage Women in the Juvenile Justice System: Changing Values 97, 102 (1979) ("When a young girl becomes pregnant, many families refuse to allow her back into their home"); Osofsky & Osofsky, Teenage Pregnancy: Psychosocial Considerations, 21 Clin.Obstet.Gynecol. 1161, 1164-1165 (1978). See also J. Bedger, Teenage Pregnancy 123-124 (1980) (large majority of sampled pregnant minors predict parental opposition to their abortions).
25
Women's Community Health Center, Inc. v. Cohen, supra, at 548 (affidavits showing parental notice "may cause an adolescent to delay seeking assistance with her pregnancy, increasing the hazardousness of an abortion should she choose one"); Cates, Adolescent Abortions in the United States, 1 J. Adolescent Health Care 18, 24 (1980); Bracken & Kasl, Delay in Seeking Induced Abortion: A Review and Theoretical Analysis, 121 Am.J.Obstet.Gynecol. 1008, 1013 (1975); Hofmann, Consent and Confidentiality and Their Legal and Ethical Implications for Adolescent Medicine, in Medical Care of the Adolescent 42, 51 (J. Gallagher, F. Heald & D. Garell eds., 3d ed. 1976).
If she decides to abort after the first trimester of pregnancy, the minor faces more serious health risks. Roe v. Wade, 410 U.S. 113, 163, 93 S.Ct. 705, 731, 35 L.Ed.2d 147 (1973); Benditt, Second-Trimester Abortion in the United States, 11 Family Planning Perspectives 358 (1979); Cates, Schulz, Crimes, & Tyler, The Effect of Delay and Method Choice on the Risk of Abortion Morbidity, 9 Family Planning Perspectives 266 (1977). If she decides to bear the child, her health risks are also greater than if she had a first trimester abortion. Cates, 1 J. Adolescent Health Care, supra, at 24; Cates & Tietze, Standardized Mortality Rates Associated with Legal Abortion: United States 1972-1975, 10 Family Planning Perspectives 109 (1978) (abortion within first 16 weeks of pregnancy safer than carrying pregnancy to term); "The Earlier the Safer" Applies to all Abortions, 10 Family Planning Perspectives 243 (1978). See also Zackler, Andelman, & Bauer, The Young Adolescent as an Obstetric Risk, 103 Am.J.Obstet.Gynecol. 305 (1969) (complications associated with childbirth by minors).
26
Women's Community Health Center, Inc. v. Cohen, supra, at 548 (affidavits that minor may turn to illegal abortion rather than have parents notified). See also Kahan, Baker, & Freeman, The Effect of Legalized Abortion on Morbidity Resulting from Criminal Abortion, 121 Am.J.Obstet.Gynecol. 114 (1975) (illegal abortion rate drops when legal abortion available). The minor may also seek to abort herself, Alice v. Department of Social Welfare, 55 Cal.App.3d 1039, 1044, 128 Cal.Rptr. 374, 377 (1976); A. Holder, Legal Issues in Pediatrics and Adolescent Medicine 285 (1977); or even commit suicide, see Teicher, A Solution to the Chronic Problem of Living: Adolescent Attempted Suicide, in Current Issues in Adolescent Psychiatry 129, 136 (J. Schoolar ed. 1973) (study showing that approximately one-fourth of female minors who attempt suicide do so because they are or believe they are pregnant).
27
It is the presence of the notice requirement, and not merely its implementation in a particular case, that signifies the intrusion. Cf. Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976) (availability of veto, not exercise of veto, found unconstitutional).
Despite the Court's objection today that we have in the past "expressly declined to equate notice requirements with consent requirements," ante, at 411, n. 17 (opinion of BURGER, C. J.), in Bellotti II the Court rejected a statute authorizing judicial review of a minor's abortion decision—as an alternative to parental consent—precisely because a parent notified of the court action might interfere. Thus, Justice POWELL wrote for four Members of the Court: "As the District Court recognized, 'there are parents who would obstruct, and perhaps altogether prevent, the minor's right to go to court.' . . . There is no reason to believe that this would be so in the majority of cases where consent is withheld. But many parents hold strong views on the subject of abortion, and young pregnant minors, especially those living at home, are particularly vulnerable to their parents' efforts to obstruct both an abortion and their access to court." 443 U.S., at 647, 99 S.Ct., at 3050.
28
Thus, the notice requirement produces not only predictable disincentives to choose to abort, Harris v. McRae, 448 U.S. 297, 338, 100 S.Ct. 2701, 2706, 65 L.Ed.2d 784 (MARSHALL, J., dissenting); id., at 330, 100 S.Ct., at 2702 (BRENNAN, J., dissenting); but also " 'direct state interference with a protected activity,' " id., at 315, 100 S.Ct., at 2687 (quoting with approval Maher v. Roe, 432 U.S. 464, 475, 97 S.Ct. 2376, 2383, 53 L.Ed.2d 484 (1977)).
29
See Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973) (invalidating procedural restrictions on availability of abortions); Carey v. Population Services International, 431 U.S., at 687-689, 97 S.Ct., at 2017-2018 (partial restrictions on access to contraceptives subject to constitutional challenge). Regardless of the personal views each of us may hold, the privacy right by definition secures latitude of choice for the pregnant minor, without state approval of one decision over another. Thus, Justice STEVENS improperly inverts the reasoning of our decisions when he reiterates his previous view that the importance of the abortion decision points to a " 'State's interest in maximizing the probability that the decision be made correctly and with full understanding of the consequences of either alternative,' " ante, at 422 (emphasis added).
30
See text accompanying n. 8 and see nn. 20, 24, 25, supra.
31
Utah permits pregnant minors to consent to any medical procedure in connection with pregnancy and childbirth, but requires parental notice only before an abortion. Compare Utah Code Ann. § 78-14-5(4)(f) (1977) with § 76-7-304(2) (1978).
32
428 U.S., at 75, 96 S.Ct., at 2844. Cf. Zablocki v. Redhail, 434 U.S., at 388, 98 S.Ct., at 682; NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 340, 9 L.Ed.2d 405 (1963). In Roe v. Wade, this Court concluded that the woman's privacy right may be tempered by "important [state] interests," 410 U.S., at 154, 93 S.Ct., at 727, but the Court ultimately applied the "compelling state interest" test commonly used in reviewing state burdens on fundamental rights. Id., at 155, 93 S.Ct., at 728. Although it may seem that the minor's privacy right is somehow less fundamental because it may be overcome by a "significant state interest," the more sensible view is that state interests inapplicable to adults may justify burdening the minor's right. Planned Parenthood of Central Mo. v. Danforth, supra, at 74-75, 96 S.Ct., at 2843-2844.
33
E. g., Roe v. Wade, supra, at 155, 93 S.Ct., at 728; Griswold v. Connecticut, 381 U.S., at 485, 85 S.Ct., at 1682.
34
Appellees also argue that the notice requirement furthers legitimate state interests in enforcing Utah's criminal laws against statutory rape, fornication, adultery, and incest. Brief for Appellees 28-30. These interests were not asserted below, and are too tenuous to be considered seriously here.
35
604 P.2d, at 909-910.
36
Section 76-7-304(1) requires the physician to
"[C]onsider all factors relevant to the well-being of the woman upon whom the abortion is to be performed including, but not limited to,
"(a) Her physical, emotional and psychological health and safety,
"(b) Her age,
"(c) Her familial situation."
Violations of this requirement are punishable by a years' imprisonment and $1,000 fine. Utah Code Ann. §§ 76-3-204(1), 76-3-301(3), 76-7-314(3) (1978). Criminal sanctions also apply if the physician neglects to obtain the minor's informed written consent, and such consent can be secured only after the physician has notified the patient:
"(a) Of the names and addresses of two licensed adoption agencies in the state of Utah and the services that can be performed by those agencies, and nonagency adoption may be legally arranged; and
"(b) Of the details of development of unborn children and abortion procedures, including any foreseeable complications, risks, and the nature of the post-operative recuperation period; and
"(c) Of any other factors he deems relevant to a voluntary and informed consent." Utah Code Ann. § 76-7-305(2) (1978).
The risk of malpractice suits also ensures that the physician will acquire whatever information he finds necessary before performing the abortion. See Utah Code Ann. § 78-14-5 (1977).
Moreover, "[i]f a physician is licensed by the State, he is recognized by the State as capable of exercising acceptable clinical judgment. If he fails in this, professional censure and deprivation of his license are available remedies." Doe v. Bolton, 410 U.S., at 199, 93 S.Ct., at 751.
37
The parties conceded as much at oral argument. Tr. of Oral Arg. 18-19, 29, 48.
38
I am baffled by the majority's statement today that "[i]f the pregnant girl elects to carry her child to term, the medical decisions to be made entail few—perhaps none—of the potentially grave and emotional and psychological consequences of the decision to abort," ante, at 412-413. Choosing to participate in diagnostic tests involves risks to both mother and child, and also may burden the pregnant woman with knowledge that the child will be handicapped. See 3 National Institutes of Health, Prevention of Embryonic, Fetal, and Perinatal Disease 347-352 (R. Brent & M. Harris, eds. 1076); Risks in the Practice of Modern Obstetrics 59-81, 369-370 (S. Aladjem ed. 1975). The decision to undergo surgery to save the child's life certainly carries as serious "emotional and psychological consequences" for the pregnant adolescent as does the decision to abort; in both instances, the minor confronts the task of calculating not only medical risks, but also all the issues involved in giving birth to a child. See id., at 59-81. For an unwed adolescent, these issues include her future educational and job opportunities, as well as the more immediate problems of finding financial and emotional support for offspring dependent entirely on her. Michael M. v. Sonoma County Superior Court, 450 U.S. 464, 470, and nn. 3 and 4, 101 S.Ct. 1200, 1205, and nn. 3 and 4, 67 L.Ed.2d 437 (REHNQUIST, J.) (plurality opinion). When surgery to save the child's life poses greater risks to the mother's life, the emotional and ethical dimensions of the medical care decision assume crisis proportion. Of course, for minors, the mere fact of pregnancy and the experience of childbirth can produce psychological upheaval.
39
More flexible regulations which defer to the physician's judgment but provide for parental notice in emergencies have been proposed. E. g., IJA-ABA Standards for Juvenile Justice, Rights of Minors 4.2, 4.6, 4.8 (1980) (minor can consent to pregnancy-related medical care; physician should seek to obtain minor's permission to notify parent, and notify parent over minor's objection only if failure to inform "could seriously jeopardize the health of the minor").
40
604 P.2d, at 912 ("the State has a special interest in encouraging (but does not require) an unmarried pregnant minor to seek the advice of her parents in making the important decision as to whether or not to bear a child").
41
Ibid. (notification statute "does not per se impose any restriction on the minor as to her decision to terminate her pregnancy"). Cf. Utah Code Ann. § 78-14-5(4)(f) (1977) (woman of any age can consent to any medical care related to pregnancy). See generally Planned Parenthood of Central Mo. v. Danforth, 428 U.S., at 74, 96 S.Ct., at 2843 (State may not delegate absolute veto authority to parents of pregnant minor seeking abortion).
42
State-sponsored counseling services, in contrast, could promote family dialogue and also improve the minor's decisionmaking process. Appellant H. L., for example, consulted with a counsel who supported her decision. The role of counselors can be significant in facilitating the pregnant woman's adjustment to decisions related to her pregnancy. See Smith, A Follow-Up Study of Women Who Request Abortion, 43 Am.J. Orthopsychiatry 574, 583-585 (1973).
43
This interest, although not discussed by the state courts below, was the subject of appellees' most vigorous argument before this Court. The challenged provision does fall within the "Offenses Against the Family" chapter of the Utah Criminal Code, ante, at 400 (opinion of BURGER, C. J.), which also provides criminal sanctions for bigamy, Utah Code Ann. § 76-7-101, incest, § 76-7-102, adultery, § 76-7-103, fornication, § 76-7-104, and nonsupport and sale of children, §§ 76-7-201 to 76-7-203 (1978).
44
Wynn v. Carey, 582 F.2d, at 1385-1386; Note, The Minor's Right of Privacy: Limitations on State Action after Danforth and Carey, 77 Colum.L.Rev. 1216, 1224 (1977).
45
"The fact that the minor became pregnant and sought an abortion contrary to the parents' wishes indicates that whatever control the parent once had over the minor has diminished, if not evaporated entirely. And we believe that enforcing a single, albeit important, parental decision—at a time when the minor is near to majority status—by an instrument as blunt as a state statute is extremely unlikely to restore parental control." Poe v. Gerstein, 517 F.2d 787, 793-794 (CA5 1975), summarily aff'd, 428 U.S. 901, 96 S.Ct. 3202, 49 L.Ed.2d 1205 (1976).
46
Thus, in Prince v. Massachusetts, this Court held that even parental rights protected by the First Amendment could be limited by the State's interest in prohibiting child labor. See Wisconsin v. Yoder, 406 U.S. 205, 233-234, 92 S.Ct. 1526, 1542, 32 L.Ed.2d 15 (1972) (discussing Prince ). The State traditionally exercises a parens patriae function in protecting those who cannot take care of themselves. See Ginsberg v. New York, 390 U.S. 629, 641, 88 S.Ct. 1274, 1281, 20 L.Ed.2d 195 (1968). Some of the earliest applications of parens patriae protected children against their "objectionable" parents. E. g., Wellesley v. Wellesley, 2 Bli.N.S. 124, 133-134, 4 Eng.Rep. 1078, 1082 (H.L.1828). See generally Kleinfeld, The Balance of Power Among Infants, Their Parents and the State, Part III, 5 Family L.Q. 64, 66-71 (1971). Every State has enacted legislation to defend children from parental abuse. Wilcox, Child Abuse Laws: Past, Present, and Future, 21 J. Forensic Sciences 71, 72 (1976).
47
The contexts in which this issue may arise are too varied to support any general rule. Appellees cite our recent decision in Parham v. J. R., 442 U.S. 584, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979), to support their claim that parents should be presumed competent to be involved in their minor daughter's abortion decision. That decision is inapposite to this case in several respects. First, the minor child in Parham who was committed to a mental hospital was presumed incompetent to make the commitment decision himself. Id., at 623, 99 S.Ct., at 2154 (STEWART, J., concurring in judgment). In contrast, appellant by statute is presumed competent to make the decision about whether to complete or abort her pregnancy. Furthermore, in Parham, the Court placed critical reliance on the ultimately determinative, independent review of the commitment decision by medical experts. Here, the physician's independent medical judgment—that an abortion was in appellant's best medical interest—not only was not ultimate, it was defeated by the notice requirement. Finally, as Justice STEWART emphasized in his opinion concurring in the judgment in Parham, the pregnant minor has a "personal substantive . . . right" to decide on an abortion. Id., at 623-624, n. 6, 99 S.Ct., at 2514-2515, n. 6.
48
Most States through their legislature or courts have adopted the common-law principle that a minor may become freed of the disabilities of that status—and at the same time release his parents from their parental obligations—prior to the actual date of his majority. Certain acts, in and of themselves, may occasion emancipation. See, e. g., Cal.Civ.Code Ann. § 62 (West 1954 and Supp.1981) (emancipation upon marriage or entry in Armed Services); Utah Code Ann. § 15-2-1 (emancipation upon marriage); Crook v. Crook, 80 Ariz. 275, 296 P.2d 951 (1956) (same). A minor may become partially emancipated if he is partially self-supporting, but still entitled to some parental assistance. See Katz, Schroeder, & Sidman, Emancipating Our Children—Coming of Legal Age in America, 7 Fam.L.Q. 211, 215 (1973). Several States by statute permit emancipation for a specific purpose, such as obtaining medical care without parental consent, e. g., Cal.Civ.Code Ann. § 34.6 (West Supp.1981); Mont.Code Ann. § 41-1-402 (1979) (woman of any age may consent to pregnancy-related medical care); Utah Code Ann. § 78-14-5(4)(f) (1977) (same), § 26-6-39.1 (1976) (minor can consent to medical treatment for venereal disease); Tex.Rev.Civ.Stat.Ann. Art. 4447i (Vernon 1976) (person at least 13 years old may consent to medical treatment for drug dependency). See Pilpel, Minors' Rights to Medical Care, 36 Albany L.Rev. 462 (1972). Several States provide for emancipation once the individual becomes a parent. E. g., Ky.Rev.Stat. § 214.185(2) (1977). In Utah, minors who become parents are authorized to make all medical care decisions for their offspring. Utah Code Ann. § 78-14-5(4)(a) (1977). See generally Cohen v. Delaware, L. & W. R. Co., 150 Misc. 450, 453-457, 269 N.Y.S. 667, 671-676 (1934); L. R. v. Hansen, No. C-80-0078J (Utah, Feb. 8, 1980) (self-supporting minor seeking abortion is emancipated and mature); Goldstein, Medical Care for the Child at Risk: On State Supervention of Parental Autonomy, 86 Yale L.J. 645, 663 (1977) (recommending objective criteria to avoid case-by-case determination of emancipation).
49
The "mature minor" doctrine permits a child to consent to medical treatment if he is capable of appreciating its nature and consequences. E. g., L. R. v. Hansen, supra (this mature minor "is capable of understanding her condition and making an informed decision which she has done after carefully considering the alternatives available to her and consulting the persons with whom she felt she should consult" prior to abortion decision); Ark.Stat.Ann. § 82-363(g) (1976). See Lacey v. Laird, 166 Ohio St. 12, 139 N.E.2d 25 (1956) (physician not liable for battery after acting with minor's consent); Smith v. Seibly, 72 Wash.2d 16, 21-22, 431 P.2d 719, 723 (1967); Younts v. St. Francis Hosp. & School of Nursing, Inc., 205 Kan. 292, 300-301, 469 P.2d 330, 337 (1970).
Four Members of this Court embraced the "mature minor" concept in striking down a statute requiring parental notice and consent to a minor's abortion, regardless of her own maturity. Bellotti II, 443 U.S., at 643-644, and nn. 22 and 23, 99 S.Ct., at 3048 and nn. 22 and 23. In Bellotti II, Justice POWELL's opinion for four Members of this Court suggested that a statute could withstand constitutional attack if it permitted case-by-case administrative or judicial determination of a pregnant minor's capacity to make an abortion decision with her physician and independent of her parents. Ibid. Because this view was expressed in a case not involving such a statute, and because it would expose the minor to the arduous and public rigors of administrative or judicial process, four other Members of this Court rejected it as advisory and at odds with the privacy interest at stake. Id., at 654-656, and n. 4, 99 S.Ct., at 3054-3055, and n. 4 (STEVENS, J., joined by BRENNAN, MARSHALL, and BLACKMUN, JJ.). Nonetheless, even under Justice POWELL's reasoning in Bellotti II, the instant statute is unconstitutional. Not only does it preclude case-by-case consideration of the maturity of the minor, it also prevents individualized review to determine whether parental notice would be harmful to the minor.
50
E. g., Ky.Rev.Stat. § 214.185(3) (1977); Utah Code Ann. § 26-31-8 (1976); 1979 Utah Laws, ch. 98, § 7. The need for
emergency medical care may even overcome the religious objections of the parents. E. g., In re Clark, 21 Ohio Op.2d 86, 89-90, 185 N.E.2d 128, 131-132 (Com.Pl. Lucas County 1962); In re Sampson, 65 Misc.2d 658, 317 N.Y.S.2d 641 (Family Ct.), aff'd, 37 App.Div.2d 668, 323 N.Y.S.2d 253 (1970); Mass.Gen.Laws Ann., ch. 112, § 12F (West Supp.1981); Miss.Code Ann. § 41-41-7 (1972). Delay in treating nonemergency health needs may, of course, produce an emergency, and for that reason, this Court found statutory provision for emergency but not nonemergency care illogical. Memorial Hospital v. Maricopa County, 415 U.S. 250, 261, 265, 94 S.Ct. 1076, 1083, 1085, 39 L.Ed.2d 306 (1974). In asserting that the Utah statute would not apply to minors with emergency health care needs, the Court fails to point to anything in the statute, the record, or Utah case law to the contrary. The Supreme Court of Utah addressed only one kind of emergency: where the parents cannot be physically located in sufficient time to permit performance of the abortion. 604 P.2d, at 913. The court rejected any other emergency situation as an exception to the statute when it declined to afford a broad interpretation of the phrase, "if possible," which modifies the notice requirement. Even where the emergency is simply that the parents cannot be reached, the statute applies; the physician subject to its sanction merely has been granted an affirmative defense that he exercised "reasonable diligence" in attempting to locate and notify the parents. Ibid. The majority purports to draw support for its view of the Utah statute on this point from a Massachusetts statute, construed by the Massachusetts Supreme Judicial Court, see ante, at 407, n. 14.
51
As one medical authority observed: "One can well argue that an adolescent old enough to make the decision to be sexually active . . ., and who is then responsible enough to seek professional assistance for his or her problem, is ipso facto mature enough to consent to his own health care." Hofmann, supra n. 25, at 51. See Goldstein, 86 Yale L.J., at 663.
52
Utah Code Ann. § 78-14-5(4)(f) (1977).
53
Utah Code Ann. § 76-7-305 (1978) requires voluntary and informed written consent. See n. 36, supra.
54
Cf. Wynn v. Carey, 582 F.2d, at 1388.
| 45
|
450 U.S. 455
101 S.Ct. 1195
67 L.Ed.2d 428
Karl J. KIRCHBERG, Appellant,v.Joan Paillot FEENSTRA et al.
No. 79-1388.
Argued Dec. 10, 1980.
Decided March 23, 1981.
Syllabus
In 1974, the husband of appellee Feenstra (hereafter appellee), without her knowledge, executed a mortgage on their jointly owned home as security on the husband's promissory note to appellant. The husband executed the mortgage pursuant to a now superseded Louisiana statute (Art. 2404) that gave a husband the unilateral right to dispose of jointly owned community property without his spouse's consent. In 1976, after appellee refused to pay her husband's note, appellant commenced foreclosure proceedings and instituted the instant action in Federal District Court for declaratory relief. Appellee asserted a counterclaim challenging the constitutionality of Art. 2404, and Louisiana and its Governor were joined as third-party defendants on the counterclaim. The District Court granted the State's motion for summary judgment. While appellee's appeal to the Court of Appeals was pending, Louisiana completely revised its community-property code provisions so as to grant spouses equal control over the disposition of such property. Because the new code did not take effect until January 1, 1980, it did not control the mortgage executed by appellee's husband. The Court of Appeals held that Art. 2404 violated the Equal Protection Clause of the Fourteenth Amendment, but limited its decision to prospective application because the ruling "would create a substantial hardship with respect to property rights and obligations within the State of Louisiana."
Held :
1. Article 2404 violated the Equal Protection Clause. Gender-based discrimination is unconstitutional absent a showing that the classification substantially furthers an important governmental interest, and it is immaterial that under the earlier statutory provisions appellee could have made a "declaration by authentic act" prohibiting her husband from executing a mortgage on her home without her consent. The "absence of an insurmountable barrier" will not redeem an otherwise unconstitutionally discriminatory law. Trimble v. Gordon, 430 U.S. 762, 774, 97 S.Ct. 1459, 1467, 52 L.Ed.2d 31. Because appellant has failed to offer any justification for the challenged classification and because the State, by declining to appeal from the decision below, has apparently abandoned any claim that an important government objective was served by Art. 2404, the Court of Appeals' judgment is affirmed. Pp. 459-461.
2. There is no ambiguity on the only other question properly before this Court, which is whether the Court of Appeals' prospective decision applies to the mortgage in this case. The dispute between the parties at its core involves the validity of a single mortgage—that executed by appellee's husband—and in passing on the constitutionality of Art. 2404, the Court of Appeals clearly intended to resolve that controversy adversely to appellant. Pp. 461-463.
609 F.2d 727, affirmed.
Alan F. Schoenberger, New Orleans, La., for appellant, pro hac vice, by special leave of Court.
Barbara Hausman-Smith, White River Junction, Vt., for appellees.
Justice MARSHALL delivered the opinion of the Court.
1
In this appeal we consider the constitutionality of a now superseded Louisiana statute that gave a husband, as "head and master" of property jointly owned with his wife, the unilateral right to dispose of such property without his spouse's consent. Concluding that the provision violates the Equal Protection Clause of the Fourteenth Amendment, we affirm the judgment of the Court of Appeals for the Fifth Circuit invalidating the statute.
2
* In 1974, appellee Joan Feenstra filed a criminal complaint against her husband, Harold Feenstra, charging him with molesting their minor daughter. While incarcerated on that charge, Mr. Feenstra retained appellant Karl Kirchberg, an attorney, to represent him. Mr. Feenstra signed a $3,000 promissory note in prepayment for legal services to be performed by appellant Kirchberg. As security on this note, Mr. Feenstra executed a mortgage in favor of appellant on the home he jointly owned with his wife. Mrs. Feenstra was not informed of the mortgage, and her consent was not required because a state statute, former Art. 2404 of the Louisiana Civil Code Ann. (West 1971), gave her husband exclusive control over the disposition of community property.1
3
Mrs. Feenstra eventually dropped the charge against her husband. He did not return home, but instead obtained a legal separation from his wife and moved out of the State. Mrs. Feenstra first learned of the existence of the mortgage in 1976, when appellant Kirchberg threatened to foreclose on her home unless she paid him the amount outstanding on the promissory note executed by her husband. After Mrs. Feenstra refused to pay the obligation, Kirchberg obtained an order of executory process directing the local sheriff to seize and sell the Feenstra home.
4
Anticipating Mrs. Feenstra's defense to the foreclosure action, Kirchberg in March 1976 filed this action in the United States District Court for the Eastern District of Louisiana, seeking a declaratory judgment against Mrs. Feenstra that he was not liable under the Truth in Lending Act, 15 U.S.C. § 1601 et seq., for any nondisclosures concerning the mortgage he held on the Feenstra home. In her answer to Kirchberg's complaint, Mrs. Feenstra alleged as a counterclaim that Kirchberg has violated the Act, but also included a second counterclaim challenging the constitutionality of the statutory scheme that empowered her husband unilaterally to execute a mortgage on their jointly owned home. The State of Louisiana and its Governor were joined as third-party defendants on the constitutional counterclaim. The governmental parties, joined by appellant, moved for summary judgment on this claim. The District Court, characterizing Mrs. Feenstra's counterclaim as an attack on "the bedrock of Louisiana's community property system," granted the State's motion for summary judgment. 430 F.Supp. 642, 644 (1977).2
5
While Mrs. Feenstra's appeal from the District Court's order was pending before the Court of Appeals for the Fifth Circuit, the Louisiana Legislature completely revised its code provisions relating to community property. In so doing, the State abandoned the "head and master" concept embodied in Art. 2404, and instead granted spouses equal control over the disposition of community property. La.Civ.Code Ann., Art. 2346 (West Supp.1981).3 The new code also provided that community immovables could not be alienated, leased, or otherwise encumbered without the concurrence of both spouses. La.Civ.Code Ann., Art. 2347 (West Supp.1981).4 These provisions, however, did not take effect until January 1, 1980, and the Court of Appeals was therefore required to consider whether Art. 2404, the Civil Code provision which had authorized Mr. Feenstra to mortgage his home in 1974 without his wife's knowledge or consent, violated the Equal Protection Clause of the Fourteenth Amendment.
6
Because this provision explicitly discriminated on the basis of gender, the Court of Appeals properly inquired whether the statutory grant to the husband of exclusive control over disposition of community property was substantially related to the achievement of an important governmental objective. See, e. g., Wengler v. Druggist Mutual Insurance Co., 446 U.S. 142, 100 S.Ct. 1540, 64 L.Ed.2d 107 (1980); Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976). The court noted that the State had advanced only one justification for the provision—that "[o]ne of the two spouses has to be designated as the manager of the community."5 The court agreed that the State had an interest in defining the manner in which community property was to be managed, but found that the State had failed to show why the mandatory designation of the husband as manager of the property was necessary to further that interest. The court therefore concluded that Art. 2404 violated the Equal Protection Clause. However, because the court believed that a retroactive application of its decision "would create a substantial hardship with respect to property rights and obligations within the State of Louisiana," the decision was limited to prospective application. 609 F.2d 727, 735-736 (1979). Only Kirchberg appealed the judgment of the Court of Appeals to this Court. We noted probable jurisdiction. 446 U.S. 917, 100 S.Ct. 1849, 64 L.Ed.2d 270 (1980).6
II
7
By granting the husband exclusive control over the disposition of community property, Art. 2404 clearly embodies the type of express gender-based discrimination that we have found unconstitutional absent a showing that the classification is tailored to further an important governmental interest. In defending the constitutionality of Art. 2404, appellant Kirchberg does not claim that the provision serves any such interest.7 Instead, appellant attempts to distinguish this Court's decisions in cases such as Craig v. Boren, supra, and Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979), which struck down similar gender-based statutory classifications, by arguing that appellee Feenstra, as opposed to the disadvantaged individuals in those cases, could have taken steps to avoid the discriminatory impact of Art. 2404. Appellant notes that under Art. 2334 of the Louisiana Civil Code, in effect at the time Mr. Feenstra executed the mortgage, Mrs. Feenstra could have made a "declaration by authentic act" prohibiting her husband from executing a mortgage on her home without her consent.8 By failing to take advantage of this procedure, Mrs. Feenstra, in appellant's view, became the "architect of her own predicament" and therefore should not be heard to complain of the discriminatory impact of Art. 2404.
8
By focusing on steps that Mrs. Feenstra could have taken to preclude her husband from mortgaging their home without her consent, however, appellant overlooks the critical question: Whether Art. 2404 substantially furthers an important government interest. As we have previously noted, the "absence of an insurmountable barrier" will not redeem an otherwise unconstitutionally discriminatory law. Trimble v. Gordon, 430 U.S. 762, 774, 97 S.Ct. 1459, 1467, 52 L.Ed.2d 31 (1977). See Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973). Cf. Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975); Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971). Instead the burden remains on the party seeking to uphold a statute that expressly discriminates on the basis of sex to advance an "exceedingly persuasive justification" for the challenged classification. Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 273, 99 S.Ct. 2282, 2293, 60 L.Ed.2d 870 (1979). See also Wengler v. Druggist Mutual Ins. Co., supra, 446 U.S., at 151, 100 S.Ct., at 1546. Because appellant has failed to offer such a justification, and because the State, by declining to appeal from the decision below, has apparently abandoned any claim that an important government objective was served by the statute, we affirm the judgment of the Court of Appeals invalidating Art. 2404.9
III
9
Appellant's final contention is that even if Art. 2404 violates the Equal Protection Clause of the Fourteenth Amendment, the mortgage he holds on the Feenstra home is nonetheless valid because the Court of Appeals limited its ruling to prospective application. Appellant asserts that the opinion of the Court of Appeals is ambiguous on whether the court intended to apply its prospective ruling to his mortgage, which was executed in 1974, or only to those dispositions of community property made pursuant to Art. 2404 between December 12, 1979, the date of the court's decision, and January 1, 1980, the effective date of Louisiana's new community property law. Appellant urges this Court to adopt the latter interpretation on the ground that a contrary decision would create grave uncertainties concerning the validity of mortgages executed unilaterally by husbands between 1974 and the date of the Court of Appeals' decision.
10
We decline to address appellant's concerns about the potential impact of the Court of Appeals' decision on other mortgages executed pursuant to Art. 2404. The only question properly before us is whether the decision of the Court of Appeals applies to the mortgage in this case, and on that issue we find no ambiguity.10 This case arose not from any abstract disagreement between the parties over the constitutionality of Art. 2404, but from appellant's attempt to foreclose on the mortgage he held on the Feenstra home. Appellant brought this declaratory judgment action to further that end, and the counterclaim asserted by Mrs. Feenstra specifically sought as relief "a declaratory judgment that the mortgage executed on [her] home by her husband . . . is void as having been executed and recorded without her consent pursuant to an unconstitutional state statute." Thus, the dispute between the parties at its core involves the validity of a single mortgage, and in passing on the constitutionality of Art. 2404, the Court of Appeals clearly intended to resolve that controversy adversely to appellant.
11
Accordingly, the judgment of the Court of Appeals is affirmed.
12
So ordered.
13
Justice STEWART, with whom Justice REHNQUIST joins, concurring in the result.
14
Since men and women were similarly situated for all relevant purposes with respect to the management and disposition of community property, I agree that Art. 2404 of the Louisiana Civil Code Ann. (West 1971), which allowed husbands but not wives to execute mortgages on jointly owned real estate without spousal consent, violated the Equal Protection Clause of the Fourteenth Amendment. See Michael M. v. Sonoma County Superior Court, 450 U.S. 464, 477-479, 101 S.Ct. 1200, 1208-1209, 67 L.Ed.2d 437 (STEWART, J., concurring).
15
While it is clear that the Court is correct in holding that the judgment of the Court of Appeals applied to the particular mortgage executed by Mr. Feenstra, it is equally clear that that court's explicit announcement that its holding was to apply only prospectively means that no other mortgage executed before the date of the decision of the Court of Appeals is invalid by reason of its decision.
1
Article 2404, in effect at the time Mr. Feenstra executed the mortgage in favor of appellant, provided in pertinent part:
"The husband is the head and master of the partnership or community of gains; he administers its effects, disposes of the revenues which they produce, and may alienate them by an onerous title, without the consent and permission of his wife."
This provision has been repealed. See infra, at 458, and nn. 3 and 4.
2
After the District Court granted summary judgment against appellee Feenstra on her constitutional challenge to the head and master statute, she and appellant Kirchberg agreed to the dismissal with prejudice of their Truth in Lending Act claims.
3
Article 2346 provides that "[e]ach spouse acting alone may manage, control, or dispose of community property unless otherwise provided by law."
4
However, either spouse may renounce his or her right to concur in the disposition of community immovables. La.Civ.Code Ann., Art. 2348 (West Supp.1981).
5
This assertion was made in the State's brief before the Court of Appeals. 609 F.2d 727, 735 (1979).
6
The State and the Governor, as appellees, subsequently filed a motion to dismiss Kirchberg's appeal on the ground that extensive revisions in the State's community property law, see supra, at 458, and nn. 3 and 4, had rendered moot the controversy over the constitutionality of Art. 2404. However, because these legislative changes were effective only as of January 1, 1980, they do not govern the mortgage executed by Mr. Feenstra in 1974. The suggestion of mootness was therefore rejected. 449 U.S. 916, 101 S.Ct. 313, 66 L.Ed.2d 144 (1980).
7
Nor will this Court speculate about the existence of such a justification. "The burden . . . is on those defending the discrimination to make out the claimed justification. . . ." Wengler v. Druggist Mutual Ins. Co., 446 U.S. 142, 151, 100 S.Ct. 1540, 1546, 64 L.Ed.2d 107 (1980). We note, however, that the failure of the State to appeal from the decision of the Court of Appeals and the decision of the Louisiana Legislature to replace Art. 2404 with a gender-neutral statute, suggest that appellant would be hard pressed to show that the challenged provision substantially furthered an important governmental interest.
8
Article 2334, as it existed in 1974, provided:
"Where the title to immovable property stands in the names of both the husband and the wife, it may not be leased, mortgaged or sold by the husband without the wife's consent where she has made a declaration by authentic act that her authority and consent are required for such lease, sale or mortgage and has filed such a declaration in the mortgage and conveyance records of the parish in which the property is situated."
This Article has been replaced with a new code provision prohibiting either spouse from alienating or encumbering community immovables without the consent of the other spouse. See n. 3, supra.
9
In so ruling, we also reject appellant's secondary argument that the constitutional challenge to Art. 2404 should be rejected because the provision was an integral part of the State's community property law and its invalidation would call into question the constitutionality of related provisions of the Louisiana Civil Code. The issue before us is not whether the State's community property law, as it existed in 1974, could have functioned without Art. 2404, but rather whether that provision unconstitutionally discriminated on the basis of sex.
10
Indeed, appellant's view that some ambiguity exists concerning the applicability of the Fifth Circuit's decision to the mortgage he held on the Feenstra home appears to be of recent vintage. Appellant Kirchberg never sought clarification from the Court of Appeals on the scope of its decision, and apparently regarded the court's judgment to be sufficiently adverse and binding on him to warrant seeking review on the merits before this Court.
| 12
|
450 U.S. 464
101 S.Ct. 1200
67 L.Ed.2d 437
MICHAEL M., Petitioner,v.SUPERIOR COURT OF SONOMA COUNTY (California, Real Party in Interest).
No. 79-1344.
Argued Nov. 4, 1980.
Decided March 23, 1981.
Syllabus
Petitioner, then a 171/2-year-old male, was charged with violating California's "statutory rape" law, which defines unlawful sexual intercourse as "an act of sexual intercourse accomplished with a female not the wife of the perpetrator, where the female is under the age of 18 years." Prior to trial, petitioner sought to set aside the information on both state and federal constitutional grounds, asserting that the statute unlawfully discriminated on the basis of gender since men alone where criminally liable thereunder. The trial court and the California Court of Appeal denied relief, and on review the California Supreme Court upheld the statute.
Held: The judgment is affirmed. Pp. 468-476; 481-487.
25 Cal.3d 608, 159 Cal.Rptr. 340, 601 P.2d 572, affirmed.
Justice REHNQUIST, joined by Chief Justice BURGER, Justice STEWART, and Justice POWELL, concluded that the statute does not violate the Equal Protection Clause of the Fourteenth Amendment. Pp. 468-476.
1
(a) Gender-based classifications are not "inherently suspect" so as to be subject to so-called "strict scrutiny," but will be upheld if they bear a "fair and substantial relationship" to legitimate state ends. Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225. Because the Equal Protection Clause does not "demand that a statute necessarily apply equally to all persons" or require "things which are different in fact . . . to be treated in law as though they were the same," Rinaldi v. Yeager, 384 U.S. 305, 309, 86 S.Ct. 1497, 1499, 16 L.Ed.2d 577, a statute will be upheld where the gender classification is not invidious, but rather realistically reflects the fact that the sexes are not similarly situated in certain circumstances. Pp. 468-469.
2
(b) One of the purposes of the California statute in which the State has a strong interest is the prevention of illegitimate teenage pregnancies. The statute protects women from sexual intercourse and pregnancy at an age when the physical, emotional, and psychological consequences are particularly severe. Because virtually all of the significant harmful and identifiable consequences of teenage pregnancy fall on the female, a legislature acts well within it authority when it elects to punish only the participant who, by nature, suffers few of the consequences of his conduct. Pp. 470-473.
3
(c) There is no merit in petitioner's contention that the statute is impermissibly underinclusive and must, in order to pass judicial scrutiny, be broadened so as to hold the female as criminally liable as the male. The relevant inquiry is not whether the statute is drawn as precisely as it might have been, but whether the line chosen by the California Legislature is within constitutional limitations. In any event, a gender-neutral statute would frustrate the State's interest in effective enforcement since a female would be less likely to report violations of the statute if she herself would be subject to prosecution. The Equal Protection Clause does not require a legislature to enact a statute so broad that it may well be incapable of enforcement. Pp. 473-474.
4
(d) Nor is the statute impermissibly overbroad because it makes unlawful sexual intercourse with prepubescent females, incapable of becoming pregnant. Aside from the fact that the statute could be justified on the grounds that very young females are particularly susceptible to physical injury from sexual intercourse, the Constitution does not require the California Legislature to limit the scope of the statute to older teenagers and exclude young girls. P. 475.
5
(e) And the statute is not unconstitutional as applied to petitioner who, like the girl involved, was under 18 at the time of sexual intercourse, on the asserted ground that the statute presumes in such circumstances that the male is the culpable aggressor. The statute does not rest on such an assumption, but instead is an attempt to prevent illegitimate teenage pregnancy by providing an additional deterrent for men. The age of the man is irrelevant since young men are as capable as older men of inflicting the harm sought to be prevented. P. 475.
6
BLACKMUN, J., concluded that the California statutory rape law is a sufficiently reasoned and constitutional effort to control at its inception the problem of teenage pregnancies, and that the California Supreme Court's judgment should be affirmed on the basis of the applicable test for gender-based classifications as set forth in Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225, and Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 456, 50 L.Ed.2d 397. Pp. 481-487.
7
REHNQUIST, J., announced the judgment of the Court and delivered an opinion, in which BURGER, C. J., and STEWART and POWELL, JJ., joined.
8
STEWART, J., filed a concurring opinion post, p. 476.
9
BLACKMUN, J., filed an opinion concurring in the judgment post, p. 481.
10
BRENNAN, J., filed a dissenting opinion, in which WHITE and MARSHALL, JJ., joined post, p. 488.
11
STEVENS, J., filed a dissenting opinion post, p. 496.
12
Gregory F. Jilka, Rohnert Park, Cal., for petitioner.
13
Sandy R. Kriegler, Los Angeles, Cal., for respondent.
14
Justice REHNQUIST announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE, Justice STEWART, and Justice POWELL joined.
15
The question presented in this case is whether California's "statutory rape" law, § 261.5 of the Cal.Penal Code Ann. (West Supp.1981), violates the Equal Protection Clause of the Fourteenth Amendment. Section 261.5 defines unlawful sexual intercourse as "an act of sexual intercourse accomplished with a female not the wife of the perpetrator, where the female is under the age of 18 years." The statute thus makes men alone criminally liable for the act of sexual intercourse.
16
In July 1978, a complaint was filed in the Municipal Court of Sonoma County, Cal., alleging that petitioner, then a 171/2-year-old male, had had unlawful sexual intercourse with a female under the age of 18, in violation of § 261.5. The evidence, adduced at a preliminary hearing showed that at approximately midnight on June 3, 1978, petitioner and two friends approached Sharon, a 161/2-year-old female, and her sister as they waited at a bus stop. Petitioner and Sharon, who had already been drinking, moved away from the others and began to kiss. After being struck in the face for rebuffing petitioner's initial advances, Sharon submitted to sexual intercourse with petitioner. Prior to trial, petitioner sought to set aside the information on both state and federal constitutional grounds, asserting that § 261.5 unlawfully discriminated on the basis of gender. The trial court and the California Court of Appeal denied petitioner's request for relief and petitioner sought review in the Supreme Court of California.
17
The Supreme Court held that "section 261.5 discriminates on the basis of sex because only females may be victims, and only males may violate the section." 25 Cal.3d 608, 611, 159 Cal.Rptr. 340, 342, 601 P.2d 572, 574. The court then subjected the classification to "strict scrutiny," stating that it must be justified by a compelling state interest. It found that the classification was "supported not by mere social convention but by the immutable physiological fact that it is the female exclusively who can become pregnant." Ibid. Canvassing "the tragic human costs of illegitimate teenage pregnancies," including the large number of teenage abortions, the increased medical risk associated with teenage pregnancies, and the social consequences of teenage childbearing, the court concluded that the State has a compelling interest in preventing such pregnancies. Because males alone can "physiologically cause the result which the law properly seeks to avoid," the court further held that the gender classification was readily justified as a means of identifying offender and victim. For the reasons stated below, we affirm the judgment of the California Supreme Court.1
18
As is evident from our opinions, the Court has had some difficulty in agreeing upon the proper approach and analysis in cases involving challenges to gender-based classifications. The issues posed by such challenges range from issues of standing, see Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979), to the appropriate standard of judicial review for the substantive classification. Unlike the California Supreme Court, we have not held that gender-based classifications are "inherently suspect" and thus we do not apply so-called "strict scrutiny" to those classifications. See Stanton v. Stanton, 421 U.S. 7, 95 S.Ct. 1373, 43 L.Ed.2d 688 (1975). Our cases have held, however, that the traditional minimum rationality test takes on a somewhat "sharper focus" when gender-based classifications are challenged. See Craig v. Boren, 429 U.S. 190, 210 n.*, 97 S.Ct. 451, 464, 50 L.Ed.2d 397 (1976) (POWELL, J., concurring). In Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971), for example, the Court stated that a gender-based classification will be upheld if it bears a "fair and substantial relationship" to legitimate state ends, while in Craig v. Boren, supra, 429 U.S. at 197, 97 S.Ct. at 457, the Court restated the test to require the classification to bear a "substantial relationship" to "important governmental objectives."
19
Underlying these decisions is the principle that a legislature may not "make overbroad generalizations based on sex which are entirely unrelated to any differences between men and women or which demean the ability or social status of the affected class." Parham v. Hughes, 441 U.S. 347, 354, 99 S.Ct. 1742, 60 L.Ed.2d 269 (1979) (plurality opinion of STEWART, J.). But because the Equal Protection Clause does not "demand that a statute necessarily apply equally to all persons" or require " 'things which are different in fact . . . to be treated in law as though they were the same,' " Rinaldi v. Yeager, 384 U.S. 305, 309, 86 S.Ct. 1497, 1499, 16 L.Ed.2d 577 (1966), quoting Tigner v. Texas, 310 U.S. 141, 147, 60 S.Ct. 879, 882, 84 L.Ed. 1124 (1940), this Court has consistently upheld statutes where the gender classification is not invidious, but rather realistically reflects the fact that the sexes are not similarly situated in certain circumstances. Parham v. Hughes, supra; Califano v. Webster, 430 U.S. 313, 97 S.Ct. 1192, 51 L.Ed.2d 360 (1977); Schlesinger v. Ballard, 419 U.S. 498, 95 S.Ct. 572, 42 L.Ed.2d 610 (1975); Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974). As the Court has stated, a legislature may "provide for the special problems of women." Weinberger v. Wiesenfeld, 420 U.S. 636, 653, 95 S.Ct. 1225, 1236, 43 L.Ed.2d 514 (1975).
20
Applying those principles to this case, the fact that the California Legislature criminalized the act of illicit sexual intercourse with a minor female is a sure indication of its intent or purpose to discourage that conduct.2 Precisely why the legislature desired that result is of course somewhat less clear. This Court has long recognized that "[i]nquiries into congressional motives or purposes are a hazardous matter," United States v. O'Brien, 391 U.S. 367, 383-384, 88 S.Ct. 1673, 1682-1683, 20 L.Ed.2d 672 (1968); Palmer v. Thompson, 403 U.S. 217, 224, 91 S.Ct. 1940, 1944, 29 L.Ed.2d 438 (1971), and the search for the "actual" or "primary" purpose of a statute is likely to be elusive. Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 265, 97 S.Ct. 555, 563, 50 L.Ed.2d 450 (1977); McGinnis v. Royster, 410 U.S. 263, 276-277, 93 S.Ct. 1055, 1062-1063, 35 L.Ed.2d 282 (1973). Here, for example, the individual legislators may have voted for the statute for a variety of reasons. Some legislators may have been concerned about preventing teenage pregnancies, others about protecting young females from physical injury or from the loss of "chastity," and still others about promoting various religious and moral attitudes towards premarital sex.
21
The justification for the statute offered by the State, and accepted by the Supreme Court of California, is that the legislature sought to prevent illegitimate teenage pregnancies. That finding, of course, is entitled to great deference. Reitman v. Mulkey, 387 U.S. 369, 373-374, 87 S.Ct. 1627, 1629-1630, 18 L.Ed.2d 830 (1967). And although our cases establish that the State's asserted reason for the enactment of a statute may be rejected, if it "could not have been a goal of the legislation," Weinberger v. Wiesenfeld, supra, 420 U.S. at 648, n. 16, 95 S.Ct. at 1233, this is not such a case.
22
We are satisfied not only that the prevention of illegitimate pregnancy is at least one of the "purposes" of the statute, but also that the State has a strong interest in preventing such pregnancy. At the risk of stating the obvious, teenage pregnancies, which have increased dramatically over the last two decades,3 have significant social, medical, and economic consequences for both the mother and her child, and the State.4 Of particular concern to the State is that approximately half of all teenage pregnancies end in abortion.5 And of those children who are born, their illegitimacy makes them likely candidates to become wards of the State.6
23
We need not be medical doctors to discern that young men and young women are not similarly situated with respect to the problems and the risks of sexual intercourse. Only women may become pregnant, and they suffer disproportionately the profound physical, emotional and psychological consequences of sexual activity. The statute at issue here protects women from sexual intercourse at an age when those consequences are particularly severe.7
24
The question thus boils down to whether a State may attack the problem of sexual intercourse and teenage pregnancy directly by prohibiting a male from having sexual intercourse with a minor female.8 We hold that such a statute is sufficiently related to the State's objectives to pass constitutional muster.
25
Because virtually all of the significant harmful and inescapably identifiable consequences of teenage pregnancy fall on the young female, a legislature acts well within its authority when it elects to punish only the participant who, by nature, suffers few of the consequences of his conduct. It is hardly unreasonable for a legislature acting to protect minor females to exclude them from punishment. Moreover, the risk of pregnancy itself constitutes a substantial deterrence to young females. No similar natural sanctions deter males. A criminal sanction imposed solely on males thus serves to roughly "equalize" the deterrents on the sexes.
26
We are unable to accept petitioner's contention that the statute is impermissibly underinclusive and must, in order to pass judicial scrutiny, be broadened so as to hold the female as criminally liable as the male. It is argued that this statute is not necessary to deter teenage pregnancy because a gender-neutral statute, where both male and female would be subject to prosecution, would serve that goal equally well. The relevant inquiry, however, is not whether the statute is drawn as precisely as it might have been, but whether the line chosen by the California Legislature is within constitutional limitations. Kahn v. Shevin, 416 U.S., at 356 n. 10, 94 S.Ct., at 1737-1738.
27
In any event, we cannot say that a gender-neutral statute would be as effective as the statute California has chosen to enact. The State persuasively contends that a gender-neutral statute would frustrate its interest in effective enforcement. Its view is that a female is surely less likely to report violations of the statute if she herself would be subject to criminal prosecution.9 In an area already fraught with prosecutorial difficulties, we decline to hold that the Equal Protection Clause requires a legislature to enact a statute so broad that it may well be incapable of enforcement.10
28
We similarly reject petitioner's argument that § 261.5 is impermissibly overbroad because it makes unlawful sexual intercourse with prepubescent females, who are, by definition, incapable of becoming pregnant. Quite apart from the fact that the statute could well be justified on the grounds that very young females are particularly susceptible to physical injury from sexual intercourse, see Rundlett v. Oliver, 607 F.2d 495 (CA1 1979), it is ludicrous to suggest that the Constitution requires the California Legislature to limit the scope of its rape statute to older teenagers and exclude young girls.
29
There remains only petitioner's contention that the statute is unconstitutional as it is applied to him because he, like Sharon, was under 18 at the time of sexual intercourse. Petitioner argues that the statute is flawed because it presumes that as between two persons under 18, the male is the culpable aggressor. We find petitioner's contentions unpersuasive. Contrary to his assertions, the statute does not rest on the assumption that males are generally the aggressors. It is instead an attempt by a legislature to prevent illegitimate teenage pregnancy by providing an additional deterrent for men. The age of the man is irrelevant since young men are as capable as older men of inflicting the harm sought to be prevented.
30
In upholding the California statute we also recognize that this is not a case where a statute is being challenged on the grounds that it "invidiously discriminates" against females. To the contrary, the statute places a burden on males which is not shared by females. But we find nothing to suggest that men, because of past discrimination or peculiar disadvantages, are in need of the special solicitude of the courts. Nor is this a case where the gender classification is made "solely for . . . administrative convenience," as inFrontiero v. Richardson, 411 U.S. 677, 690, 93 S.Ct. 1764, 1772, 36 L.Ed.2d 583 (1973) (emphasis omitted), or rests on "the baggage of sexual stereotypes" as in Orr v. Orr, 440 U.S., at 283, 99 S.Ct., at 1114. As we have held, the statute instead reasonably reflects the fact that the consequences of sexual intercourse and pregnancy fall more heavily on the female than on the male.
31
Accordingly, the judgment of the California Supreme Court is
32
Affirmed.
33
Justice STEWART, concurring.
34
Section 261.5, on its face, classifies on the basis of sex. A male who engages in sexual intercourse with an underage female who is not his wife violates the statute; a female who engages in sexual intercourse with an underage male who is not her husband does not.1 The petitioner contends that this state law, which punishes only males for the conduct in question, violates his Fourteenth Amendment right to the equal protection of the law. The Court today correctly rejects that contention.
35
At the outset, it should be noted that the statutory discrimination, when viewed as part of the wider scheme of California law, is not as clearcut as might at first appear. Females are not freed from criminal liability in California for engaging in sexual activity that may be harmful. It is unlawful, for example, for any person, of either sex, to molest, annoy, or contribute to the delinquency of anyone under 18 years of age.2 All persons are prohibited from committing "any lewd or lascivious act," including consensual intercourse, with a child under 14.3 And members of both sexes may be convicted for engaging in deviant sexual acts with anyone under 18.4 Finally, females may be brought within the proscription of § 261.5 itself, since a female may be charged with aiding and abetting its violation.5
36
Section 261.5 is thus but one part of a broad statutory scheme that protects all minors from the problems and risks attendant upon adolescent sexual activity. To be sure, § 261.5 creates an additional measure of punishment for males who engage in sexual intercourse with females between the ages of 14 and 17.6 The question then is whether the Constitution prohibits a state legislature from imposing this additional sanction on a gender-specific basis.
B
37
The Constitution is violated when government, state or federal, invidiously classifies similarly situated people on the basis of the immutable characteristics with which they were born. Thus, detrimental racial classifications by government always violate the Constitution, for the simple reason that, so far as the Constitution is concerned, people of different races are always similarly situated. See Fullilove v. Klutznick, 448 U.S. 448, 522, 100 S.Ct. 2758, 2798, 65 L.Ed.2d 902 (dissenting opinion); McLaughlin v. Florida, 379 U.S. 184, 198, 85 S.Ct. 283, 13 L.Ed.2d 222 (concurring opinion); Brown v. Board of Ed., 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873; Plessy v. Ferguson, 163 U.S. 537, 552, 16 S.Ct. 1138, 1144, 41 L.Ed. 256 (dissenting opinion). By contrast, while detrimental gender classifications by government often violate the Constitution, they do not always do so, for the reason that there are differences between males and females that the Constitution necessarily recognizes. In this case we deal with the most basic of these differences: females can become pregnant as the result of sexual intercourse; males cannot.
38
As was recognized in Parham v. Hughes, 441 U.S. 347, 354, "a State is not free to make overbroad generalizations based on sex which are entirely unrelated to any differences between men and women or which demean the ability or social status of the affected class." Gender-based classifications may not be based upon administrative convenience, or upon archaic assumptions about the proper roles of the sexes. Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397; Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583; Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225. But we have recognized that in certain narrow circumstances men and women are not similarly situated; in these circumstances a gender classification based on clear differences between the sexes in not invidious, and a legislative classification realistically based upon those differences is not unconstitutional. See Parham v. Hughes, supra; Califano v. Webster, 430 U.S. 313, 316-317, 97 S.Ct. 1192, 1194-1195, 51 L.Ed.2d 360; Schlesinger v. Ballard, 419 U.S. 498, 95 S.Ct. 572, 42 L.Ed.2d 610; cf. San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 59, 93 S.Ct. 1278, 1310, 36 L.Ed.2d 16 (concurring opinion). "[G]ender-based classifications are not invariably invalid. When men and women are not in fact similarly situated in the area covered by the legislation in question, the Equal Protection Clause is not violated." Caban v. Mohammed, 441 U.S. 380, 398, 99 S.Ct. 1760, 1771, 60 L.Ed.2d 297 (dissenting opinion).
39
Applying these principles to the classification enacted by the California Legislature, it is readily apparent that § 261.5 does not violate the Equal Protection Clause. Young women and men are not similarly situated with respect to the problems and risk associated with intercourse and pregnancy, and the statute is realistically related to the legitimate state purpose of reducing those problems and risks.
C
40
As the California Supreme Court's catalog shows, the pregnant unmarried female confronts problems more numerous and more severe than any faced by her male partner.7 She alone endures the medical risks of pregnancy or abortion.8 She suffers disproportionately the social, educational, and emotional consequences of pregnancy.9 Recognizing this disproportion, California has attempted to protect teenage females by prohibiting males from participating in the act necessary for conception.10
41
The fact that males and females are not similarly situated with respect to the risks of sexual intercourse applies with the same force to males under 18 as it does to older males. The risk of pregnancy is a significant deterrent for unwed young females that is not shared by unmarried males, regardless of their age. Experienced observation confirms the commonsense notion that adolescent males disregard the possibility of pregnancy far more than do adolescent females.11 And to the extent that § 261.5 may punish males for intercourse with prepubescent females, that punishment is justifiable because of the substantial physical risks for prepubescent females that are not shared by their male counterparts.12
D
42
The petitioner argues that the California Legislature could have drafted the statute differently, so that its purpose would be accomplished more precisely. "But the issue, of course, is not whether the statute could have been drafted more wisely, but whether the lines chosen by the . . . [l]egislature are within constitutional limitations." Kahn v. Shevin, 416 U.S. 351, 356, n. 10, 94 S.Ct. 1734, 1738, 40 L.Ed.2d 189. That other States may have decided to attack the same problems more broadly, with gender-neutral statutes, does not mean that every State is constitutionally compelled to do so.13
E
43
In short, the Equal Protection Clause does not mean that the physiological differences between men and women must be disregarded. While those differences must never be permitted to become a pretext for invidious discrimination, no such discrimination is presented by this case. The Constitution surely does not require a State to pretend that demonstrable differences between men and women do not really exist.
44
Justice BLACKMUN, concurring in the judgment.
45
It is gratifying that the plurality recognizes that "[a]t the risk of stating the obvious, teenage pregnancies . . . have increased dramatically over the last two decades" and "have significant social, medical, and economic consequences for both the mother and her child, and the State." Ante, at 470 (footnotes omitted). There have been times when I have wondered whether the Court was capable of this perception, particularly when it has struggled with the different but not unrelated problems that attend abortion issues. See, for example, the opinions (and the dissenting opinions) in Beal v. Doe, 432 U.S. 438, 97 S.Ct. 2366, 53 L.Ed.2d 464 (1977); Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977); Poelker v. Doe, 432 U.S. 519, 97 S.Ct. 2391, 53 L.Ed.2d 528 (1977); Harris v. McRae, 448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980); Williams v. Zbaraz, 448 U.S. 358, 100 S.Ct. 2694, 65 L.Ed.2d 831 (1980); and today's opinion in H. L. v. Matheson, 450 U.S. 398, 101 S.Ct. 1164, 67 L.Ed.2d 388.
46
Some might conclude that the two uses of the criminal sanction—here flatly to forbid intercourse in order to forestall teenage pregnancies, and in Matheson to prohibit a physician's abortion procedure except upon notice to the parents of the pregnant minor—are vastly different proscriptions. But the basic social and privacy problems are much the same. Both Utah's statute in Matheson and California's statute in this case are legislatively created tools intended to achieve similar ends and addressed to the same societal concerns: the control and direction of young people's sexual activities. The plurality opinion impliedly concedes as much when it notes that "approximately half of all teenage pregnancies end in abortion," and that "those children who are born" are "likely candidates to become wards of the State." Ante, at 471, and n.6.
47
I, however, cannot vote to strike down the California statutory rape law, for I think it is a sufficiently reasoned and constitutional effort to control the problem at its inception. For me, there is an important difference between this state action and a State's adamant and rigid refusal to face, or even to recognize, the "significant . . . consequences"—to the woman—of a forced or unwanted conception. I have found it difficult to rule constitutional, for example, state efforts to block, at that later point, a woman's attempt to deal with the enormity of the problem confronting her, just as I have rejected state efforts to prevent women from rationally taking steps to prevent that problem from arising. See, e. g., Carey v. Population Services International, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977). See also Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). In contrast, I am persuaded that, although a minor has substantial privacy rights in intimate affairs connected with procreation, California's efforts to prevent teenage pregnancy are to be viewed differently from Utah's efforts to inhibit a woman from dealing with pregnancy once it has become an inevitability.
48
Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976), was an opinion which, in large part, I joined, id., at 214, 97 S.Ct., at 466. The plurality opinion in the present case points out, ante, at 468-469, the Court's respective phrasings of the applicable test in Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225 (1971), and in Craig v. Boren, 429 U.S., at 197, 97 S.Ct., at 457. I vote to affirm the judgment of the Supreme Court of California and to uphold the State's gender-based classification on that test and as exemplified by those two cases and by Schlesinger v. Ballard, 419 U.S. 498, 95 S.Ct. 572, 42 L.Ed.2d 610 (1975); Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975); and Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974).
49
I note, also, that § 261.5 of the California Penal Code is just one of several California statutes intended to protect the juvenile. Justice STEWART, in his concurring opinion, appropriately observes that § 261.5 is "but one part of a broad statutory scheme that protects all minors from the problems and risks attendant upon adolescent sexual activity." Ante, at 477.
50
I think, too, that it is only fair, with respect to this particular petitioner, to point out that his partner, Sharon, appears not to have been an unwilling participant in at least the initial stages of the intimacies that took place the night of June 3, 1978.* Petitioner's and Sharon's nonacquaintance with each other before the incident; their drinking; their withdrawal from the others of the group; their foreplay, in which she willingly participated and seems to have encouraged; and the closeness of their ages (a difference of only one year and 18 days) are factors that should make this case an unattractive one to prosecute at all, and especially to pros ecute as a felony, rather than as a misdemeanor chargeable under § 261.5. But the State has chosen to prosecute in that manner, and the facts, I reluctantly conclude, may fit the crime.
51
Justice BRENNAN, with whom Justices WHITE and MARSHALL join, dissenting.
52
* It is disturbing to find the Court so splintered on a case that presents such a straightforward issue: Whether the admittedly gender-based classification in Cal.Penal Code Ann. § 261.5 (West Supp.1981) bears a sufficient relationship to the State's asserted goal of preventing teenage pregnancies to survive the "mid-level" constitutional scrutiny mandated by Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976).1 Applying the analytical framework provided by our precedents, I am convinced that there is only one proper resolution of this issue: the classification must be declared unconstitutional. I fear that the plurality opinion and Justices STEWART and BLACKMUN reach the opposite result by placing too much emphasis on the desirability of achieving the State's asserted statutory goal—prevention of teenage pregnancy—and not enough emphasis on the fundamental question of whether the sex-based discrimination in the California statute is substantially related to the achievement of that goal.2
II
53
After some uncertainty as to the proper framework for analyzing equal protection challenges to statutes containing gender-based classifications, see ante, at 468, this Court settled upon the proposition that a statute containing a gender-based classification cannot withstand constitutional challenge unless the classification is substantially related to the achievement of an important governmental objective. Kirchberg v. Feenstra, 450 U.S. 455, 459, 101 S.Ct. 1195, 1198, 67 L.Ed.2d 428; Wengler v. Druggists Mutual Ins. Co., 446 U.S. 142, 150, 100 S.Ct. 1540, 1545, 64 L.Ed.2d 107 (1980); Califano v. Westcott, 443 U.S. 76, 85, 99 S.Ct. 2655, 2661, 61 L.Ed.2d 382 (1979); Caban v. Mohammed, 441 U.S. 380, 388, 99 S.Ct. 1760, 1766, 60 L.Ed.2d 297 (1979); Orr v. Orr, 440 U.S. 268, 279, 99 S.Ct. 1102, 1111, 59 L.Ed.2d 306 (1979); Califano v. Goldfarb, 430 U.S. 199, 210-211, 97 S.Ct. 1021, 1028-1029, 51 L.Ed.2d 270 (1977); Califano v. Webster, 430 U.S. 313, 316-317, 97 S.Ct. 1192, 1194-1195, 51 L.Ed.2d 360 (1977); Craig v. Boren, supra, at 197, 97 S.Ct., at 457. This analysis applies whether the classification discriminates against males or against females. Caban v. Mohammed, supra, at 394, 99 S.Ct., at 1769; Orr v. Orr, supra, at 278-279, 99 S.Ct., at 1111; Craig v. Boren, supra, at 204, 97 S.Ct., at 460. The burden is on the government to prove both the importance of its asserted objective and the substantial relationship between the classification and that objective. See Kirchberg v. Feenstra, 450 U.S., at 461, 101 S.Ct., at 1199; Wengler v. Druggists Mutual Ins. Co., supra, at 151-152, 100 S.Ct., at 1546; Caban v. Mohammed, supra, at 393, 99 S.Ct., at 1768; Craig v. Boren, supra, at 204, 97 S.Ct., at 460. And the State cannot meet that burden without showing that a gender-neutral statute would be a less effective means of achieving that goal. Wengler v. Druggists Mutual Ins. Co., supra, at 151-152, 100 S.Ct., at 1546-1547; Orr v. Orr, supra, at 281, 283, 99 S.Ct., at 1112, 1113.3
54
The State of California vigorously asserts that the "important governmental objective" to be served by § 261.5 is the prevention of teenage pregnancy. It claims that its statute furthers this goal by deterring sexual activity by males—the class of persons it considers more responsible for causing those pregnancies.4 But even assuming that prevention of teenage pregnancy is an important governmental objective and that it is in fact an objective of § 261.5, see infra, at 494-496, California still has the burden of proving that there are fewer teenage pregnancies under its gender-based statutory rape law than there would be if the law were gender neutral. To meet this burden, the State must show that because its statutory rape law punishes only males, and not females, it more effectively deters minor females from having sexual intercourse.5
55
The plurality assumes that a gender-neutral statute would be less effective than § 261.5 in deterring sexual activity because a gender-neutral statute would create significant enforcement problems. The plurality thus accepts the State's assertion that
56
"a female is surely less likely to report violations of the statute if she herself would be subject to criminal prosecution. In an area already fraught with prosecutorial difficulties, we decline to hold that the Equal Protection Clause requires a legislature to enact a statute so broad that it may well be incapable of enforcement." Ante, at 473-474 (footnotes omitted).
57
However, a State's bare assertion that its gender-based statutory classification substantially furthers an important governmental interest is not enough to meet its burden of proof under Craig v. Boren. Rather, the State must produce evidence that will persuade the court that its assertion is true. See Craig v. Boren, 429 U.S., at 200-204, 97 S.Ct., at 458-460.
58
The State has not produced such evidence in this case. Moreover, there are at least two serious flaws in the State's assertion that law enforcement problems created by a gender-neutral statutory rape law would make such a statute less effective than a gender-based statute in deterring sexual activity.
59
First, the experience of other jurisdictions, and California itself, belies the plurality's conclusion that a gender-neutral statutory rape law "may well be incapable of enforcement." There are now at least 37 States that have enacted gender-neutral statutory rape laws. Although most of these laws protect young persons (of either sex) from the sexual exploitation of older individuals, the laws of Arizona, Florida, and Illinois permit prosecution of both minor females and minor males for engaging in mutual sexual conduct.6 California has introduced no evidence that those States have been handi capped by the enforcement problems the plurality finds so persuasive.7 Surely, if those States could provide such evidence, we might expect that California would have introduced it.
60
In addition, the California Legislature in recent years has revised other sections of the Penal Code to make them gender-neutral. For example, Cal.Penal Code Ann. §§ 286(b)(1) and 288a(b)(1) (West Supp.1981), prohibiting sodomy and oral copulation with a "person who is under 18 years of age," could cause two minor homosexuals to be subjected to criminal sanctions for engaging in mutually consensual conduct. Again, the State has introduced no evidence to explain why a gender-neutral statutory rape law would be any more difficult to enforce than those statutes.
61
The second flaw in the State's assertion is that even assuming that a gender-neutral statute would be more difficult to enforce, the State has still not shown that those enforcement problems would make such a statute less effective than a gender-based statute in deterring minor females from engaging in sexual intercourse.8 Common sense, however, suggests that a gender-neutral statutory rape law is potentially a greater deterrent of sexual activity than a gender-based law, for the simple reason that a gender-neutral law subjects both men and women to criminal sanctions and thus arguably has a deterrent effect on twice as many potential violators. Even if fewer persons were prosecuted under the gender-neutral law, as the State suggests, it would still be true that twice as many persons would be subject to arrest. The State's failure to prove that a gender-neutral law would be a less effective deterrent than a gender-based law, like the State's failure to prove that a gender-neutral law would be difficult to enforce, should have led this Court to invalidate § 261.5.
III
62
Until very recently, no California court or commentator had suggested that the purpose of California's statutory rape law was to protect young women from the risk of pregnancy. Indeed, the historical development of § 261.5 demonstrates that the law was initially enacted on the premise that young women, in contrast to young men, were to be deemed legally incapable of consenting to an act of sexual intercourse.9 Because their chastity was considered particularly precious, those young women were felt to be uniquely in need of the State's protection.10 In contrast, young men were assumed to be capable of making such decisions for themselves; the law therefore did not offer them any special protection.
63
It is perhaps because the gender classification in California's statutory rape law was initially designed to further these outmoded sexual stereotypes, rather than to reduce the incidence of teenage pregnancies, that the State has been unable to demonstrate a substantial relationship between the classification and its newly asserted goal. Cf. Califano v. Goldfarb, 430 U.S., at 223, 97 S.Ct., at 1035. (STEVENS, J., concurring in judgment). But whatever the reason, the State has not shown that Cal.Penal Code § 261.5 is any more effective than a gender-neutral law would be in determining minor females from engaging in sexual intercourse. It has therefore not met its burden of proving that the statutory classification is substantially related to the achievement of its asserted goal.
64
I would hold that § 261.5 violates the Equal Protection Clause of the Fourteenth Amendment, and I would reverse the judgment of the California Supreme Court.
65
Justice STEVENS, dissenting.
66
Local custom and belief—rather than statutory laws of venerable but doubtful ancestry—will determine the volume of sexual activity among unmarried teenagers.1 The empirical evidence cited by the plurality demonstrates the futility of the notion that a statutory prohibition will significantly affect the volume of that activity or provide a meaningful solution to the problems created by it.2 Nevertheless, as a matter of constitutional power, unlike my Brother BRENNAN see ante, at 491, n. 5, I would have no doubt about the validity of a state law prohibiting all unmarried teenagers from engaging in sexual intercourse. The societal interests in reducing the incidence of venereal disease and teenage pregnancy are sufficient, in my judgment, to justify a prohibition of conduct that increases the risk of those harms.3
67
My conclusion that a nondiscriminatory prohibition would be constitutional does not help me answer the question whether a prohibition applicable to only half of the joint participants in the risk-creating conduct is also valid. It cannot be true that the validity of a total ban is an adequate justification for a selective prohibition; otherwise, the constitutional objection to discriminatory rules would be meaningless. The question in this case is whether the difference between males and females justifies this statutory discrimination based entirely on sex.4
68
The fact that the Court did not immediately acknowledge that the capacity to become pregnant is what primarily differentiates the female from the male5 does not impeach the validity of the plurality's newly found wisdom. I think the plurality is quite correct in making the assumption that the joint act that this law seeks to prohibit creates a greater risk of harm for the female than for the male. But the plurality surely cannot believe that the risk of pregnancy confronted by the female—any more than the risk of venereal disease confronted by males as well as females has provided an effective deterrent to voluntary female participation in the risk-creating conduct. Yet the plurality's decision seems to rest on the assumption that the California Legislature acted on the basis of that rather fanciful notion.
69
In my judgment, the fact that a class of persons is especially vulnerable to a risk that a statute is designed to avoid is a reason for making the statute applicable to that class. The argument that a special need for protection provides a rational explanation for an exemption is one I simply do not comprehend.6
70
In this case, the fact that a female confronts a greater risk of harm than a male is a reason for applying the prohibition to her—not a reason for granting her a license to use her own judgment on whether or not to assume the risk. Surely, if we examine the problem from the point of view of society's interest in preventing the risk-creating conduct from occurring at all, it is irrational to exempt 50% of the potential violators. See dissent of Justice BRENNAN, ante, at 493-494. And, if we view the government's interest as that of a parens patriae seeking to protect its subjects from harming themselves, the discrimination is actually perverse. Would a rational parent making rules for the conduct of twin children of opposite sex simultaneously forbid the son and authorize the daughter to engage in conduct that is especially harmful to the daughter? That is the effect of this statutory classification.
71
If pregnancy or some other special harm is suffered by one of the two participants in the prohibited act, that special harm no doubt would constitute a legitimate mitigating factor in deciding what, if any, punishment might be appropriate in a given case. But from the standpoint of fashioning a general preventive rule or, indeed, in determining appropriate punishment when neither party in fact has suffered any special harm—I regard a total exemption for the members of the more endangered class as utterly irrational.
72
In my opinion, the only acceptable justification for a general rule requiring disparate treatment of the two participants in a joint act must be a legislative judgment that one is more guilty than the other. The risk-creating conduct that this statute is designed to prevent requires the participation of two persons—one male and one female.7 In many situations it is probably true that one is the aggressor and the other is either an unwilling, or at least a less willing, participant in the joint act. If a statute authorized punishment of only one participant and required the prosecutor to prove that that participant had been the aggressor, I assume that the discrimination would be valid. Although the question is less clear, I also assume, for the purpose of deciding this case, that it would be permissible to punish only the male participant, if one element of the offense were proof that he had been the aggressor, or at least in some respects the more responsible participant in the joint act. The statute at issue in this case, however, requires no such proof. The question raised by this statute is whether the State, consistently with the Federal Constitution, may always punish the male and never the female when they are equally responsible or when the female is the more responsible of the two.
73
It would seem to me that an impartial lawmaker could give only one answer to that question. The fact that the California Legislature has decided to apply its prohibition only to the male may reflect a legislative judgment that in the typical case the male is actually the more guilty party. Any such judgment must, in turn, assume that the decision to engage in the risk-creating conduct is always—or at least typically—a male decision. If that assumption is valid, the statutory classification should also be valid. But what is the support for the assumption? It is not contained in the record of this case or in any legislative history or scholarly study that has been called to our attention. I think it is supported to some extent by traditional attitudes toward male-female relationships. But the possibility that such a habitual attitude may reflect nothing more than an irrational prejudice makes it an insufficient justification for discriminatory treatment that is otherwise blatantly unfair. For, as I read this statute, it requires that one, and only one, of two equally guilty wrongdoers be stigmatized by a criminal conviction.
74
I cannot accept the State's argument that the constitutionality of the discriminatory rule can be saved by an assumption that prosecutors will commonly invoke this statute only in cases that actually involve a forcible rape, but one that cannot be established by proof beyond a reasonable doubt.8 That assumption implies that a State has a legitimate interest in convicting a defendant on evidence that is constitutionally insufficient. Of course, the State may create a lesser-included offense that would authorize punishment of the more guilty party, but surely the interest in obtaining convictions on inadequate proof cannot justify a statute that punishes one who is equally or less guilty than his partner.9
75
Nor do I find at all persuasive the suggestion that this discrimination is adequately justified by the desire to encourage females to inform against their male partners. Even if the concept of a wholesale informant's exemption were an acceptable enforcement device, what is the justification for defining the exempt class entirely by reference to sex rather than by reference to a more neutral criterion such as relative innocence? Indeed, if the exempt class is to be composed entirely of members of one sex, what is there to support the view that the statutory purpose will be better served by granting the informing license to females rather than to males? If a discarded male partner informs on a promiscuous female, a timely threat of prosecution might well prevent the precise harm the statute is intended to minimize.
76
Finally, even if my logic is faulty and there actually is some speculative basis for treating equally guilty males and females differently, I still believe that any such speculative justification would be outweighed by the paramount interest in evenhanded enforcement of the law. A rule that authorizes punishment of only one of two equally guilty wrongdoers violates the essence of the constitutional requirement that the sovereign must govern impartially.
77
I respectfully dissent.
1
The lower federal courts and state courts have almost uniformly concluded that statutory rape laws are constitutional. See, e. g., Rundlett v. Oliver, 607 F.2d 495 (CA1 1979); Hall v. McKenzie, 537 F.2d 1232 (CA4 1976); Hall v. State, 365 So.2d 1249, 1252-1253 (Ala.App.1978), cert. denied, 365 So.2d 1253 (Ala.1979); State v. Gray, 122 Ariz. 445, 446-447, 595 P.2d 990, 991-992 (1979); People v. Mackey, 46 Cal.App.3d 755, 760-761, 120 Cal.Rptr. 157, 160, cert. denied, 423 U.S. 951, 96 S.Ct. 372, 46 L.Ed.2d 287 (1975); People v. Salinas, 191 Colo. 171, 551 P.2d 703 (1976); State v. Brothers, 384 A.2d 402 (Del.Super.1978); In re W.E.P., 318 A.2d 286, 289-290 (D.C.1974); Barnes v. State, 244 Ga. 302, 303-304, 260 S.E.2d 40, 41-42 (1979); State v. Drake, 219 N.W.2d 492, 495-496 (Iowa 1974); State v. Bell, 377 So.2d 303 (La.1979); State v. Rundlett, 391 A.2d 815 (Me.1978); Green v. State, 270 So.2d 695 (Miss.1972); In re J.D.G., 498 S.W.2d 786, 792-793 (Mo.1973); State v. Meloon, 116 N.H. 669, 366 A.2d 1176 (1976); State v. Thompson, 162 N.J.Super. 302, 392 A.2d 678 (1978); People v. Whidden, 51 N.Y.2d 457, 434 N.Y.S.2d 937, 415 N.E.2d 927 (1980); State v. Wilson, 296 N.C. 298, 311-313, 250 S.E.2d 621, 629-630 (1979); Olson v. State, 588 P.2d 1018 (Nev.1979); State v. Elmore, 24 Or.App. 651, 546 P.2d 1117 (1976); State v. Ware, 418 A.2d 1 (R.I.1980); Roe v. State, 584 S.W.2d 257, 259 (Tenn.Cr.App.1979); Ex parte Groves, 571 S.W.2d 888, 892-893 (Tex.Cr.App.1978); Moore v. McKenzie, 236 S.E.2d 342, 342-343 (W.Va.1977); Flores v. State, 69 Wis.2d 509, 510-511, 230 N.W.2d 637, 638 (1975). Contra, Navedo v. Preisser, 630 F.2d 636 (CA8 1980); United States v. Hicks, 625 F.2d 216 (CA9 1980); Meloon v. Helgemoe, 564 F.2d 602 (CA1 1977) (limited in Rundlett v. Oliver, supra ), cert. denied, 436 U.S. 950, 98 S.Ct. 2858, 56 L.Ed.2d 793 (1978).
2
The statute was enacted as part of California's first penal code in 1850, 1850 Cal.Stats., ch. 99, § 47, p. 234, and recodified and amended in 1970.
3
In 1976 approximately one million 15-to-19-year-olds became pregnant, one-tenth of all women in that age group. Two-thirds of the pregnancies were illegitimate. Illegitimacy rates for teenagers (births per 1,000 unmarried females ages 14 to 19) increased 75% for 14-to-17-year-olds between 1961 and 1974 and 33% for 18-to-19-year-olds. Alan Guttmacher Institute, 11 Million Teenagers 10, 13 (1976); C. Chilman, Adolescent Sexuality In a Changing American Society 195 (NIH Pub. No. 80-1426, 1980).
4
The risk of maternal death is 60% higher for a teenager under the age of 15 than for a women in her early twenties. The risk is 13% higher for 15-to-19-year-olds. The statistics further show that most teenage mothers drop out of school and face a bleak economic future. See, e. g., 11 Million Teenagers, supra, at 23, 25; Bennett & Bardon, The Effects of a School Program On Teenager Mothers and Their Children, 47 Am.J. Orthopsychiatry 671 (1977); Phipps-Yonas, Teenage Pregnancy and Motherhood, 50 Am.J. Orthopsychiatry 403, 414 (1980).
5
This is because teenagers are disproportionately likely to seek abortions. Center for Disease Control, Abortion Surveillance 1976, pp. 22-24 (1978). In 1978, for example, teenagers in California had approximately 54,000 abortions and 53,800 live births. California Center for Health Statistics, Reproductive Health Status of California Teenage Women 1, 23 (Mar. 1980).
6
The policy and intent of the California Legislature evinced in other legislation buttresses our view that the prevention of teenage pregnancy is a purpose of the statute. The preamble to the Pregnancy Freedom of Choice Act, for example, states: "The legislature finds that pregnancy among unmarried persons under 21 years of age constitutes an increasing social problem in the State of California." Cal.Welf. & Inst.Code Ann. § 16145 (West 1980).
Subsequent to the decision below, the California Legislature considered and rejected proposals to render § 261.5 gender neutral, thereby ratifying the judgment of the California Supreme Court. That is enough to answer petitioner's contention that the statute was the " 'accidental by-product of a traditional way of thinking about females.' " Califano v. Webster, 430 U.S. 313, 320, 97 S.Ct. 1192, 1196, 51 L.Ed.2d 360 (1977) (quoting Califano v. Goldfarb, 430 U.S. 199, 223, 97 S.Ct. 1021, 1035, 51 L.Ed.2d 270 (1977) (STEVENS, J., concurring in judgment)). Certainly this decision of the California Legislature is as good a source as is this Court in deciding what is "current" and what is "outmoded" in the perception of women.
7
Although petitioner concedes that the State has a "compelling" interest in preventing teenage pregnancy, he contends that the "true" purpose of § 261.5 is to protect the virtue and chastity of young women. As such, the statute is unjustifiable because it rests on archaic stereotypes. What we have said above is enough to dispose of that contention. The question for us—and the only question under the Federal Constitution—is whether the legislation violates the Equal Protection Clause of the Fourteenth Amendment, not whether its supporters may have endorsed it for reasons no longer generally accepted. Even if the preservation of female chastity were one of the motives of the statute, and even if that motive be impermissible, petitioner's argument must fail because "[i]t is a familiar practice of constitutional law that this court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive." United States v. O'Brien, 391 U.S. 367, 383, 88 S.Ct. 1673, 1682, 20 L.Ed.2d 672 (1968). In Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979), for example, the Court rejected one asserted purpose as impermissible, but then considered other purposes to determine if they could justify the statute. Similarly, in Washington v. Davis, 426 U.S. 229, 243, 96 S.Ct. 2040, 2049, 48 L.Ed.2d 597 (1976), the Court distinguished Palmer v. Thompson, 403 U.S. 217, 91 S.Ct. 1940, 29 L.Ed.2d 438 (1971), on the grounds that the purposes of the ordinance there were not open to impeachment by evidence that the legislature was actually motivated by an impermissible purpose. See also Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 270, n. 21, 97 S.Ct. 555, 566, 50 L.Ed.2d 450 (1977); Mobile v. Bolden, 446 U.S. 55, 91, 100 S.Ct. 1490, 1508, 64 L.Ed.2d 47 (1980) (STEVENS, J., concurring in judgment).
8
We do not understand petitioner to question a State's authority to make sexual intercourse among teenagers a criminal act, at least on a gender-neutral basis. In Carey v. Population Services International, 431 U.S. 678, 694, n. 17, 97 S.Ct. 2010, 2021, 52 L.Ed.2d 675 (1977) (plurality opinion of BRENNAN, J.), four Members of the Court assumed for the purposes of that case that a State may regulate the sexual behavior of minors, while four other Members of the Court more emphatically stated that such regulation would be permissible. Id., at 702, 703, 97 S.Ct., at 2025, 2026 (WHITE, J., concurring in part and concurring in result); Id., at 705-707, 709, 97 S.Ct., at 2026-2028, 2029 (POWELL, J., concurring in part and concurring in judgment); Id., at 713, 97 S.Ct., at 2030-2031 (STEVENS, J., concurring in part and concurring in judgment); id., at 718, 97 S.Ct., at 2033 (REHNQUIST, J., dissenting). The Court has long recognized that a State has even broader authority to protect the physical, mental, and moral well-being of its youth, than of its adults. See, e. g., Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 72-74, 96 S.Ct. 2831, 2842-2843, 49 L.Ed.2d 788 (1976); Ginsberg v. New York, 390 U.S. 629, 639-640, 88 S.Ct. 1274, 1280-1281, 20 L.Ed.2d 195 (1968); Prince v. Massachusetts, 321 U.S. 158, 170, 64 S.Ct. 438, 444, 88 L.Ed. 645 (1944).
9
Petitioner contends that a gender-neutral statue would not hinder prosecutions because the prosecutor could take into account the relative burdens on females and males and generally only prosecute males. But to concede this is to concede all. If the prosecutor, in exercising discretion, will virtually always prosecute just the man and not the woman, we do not see why it is impermissible for the legislature to enact a statute to the same effect.
10
The question whether a statute is substantially related to its asserted goals is at best an opaque one. It can be plausibly argued that a gender-neutral statute would produce fewer prosecutions than the statute at issue here. See STEWART, J., concurring, post, at 481, n. 13. Justice BRENNAN's dissent argues on the other hand, that
"even assuming that a gender-neutral statute would be more difficult to enforce, . . . [c]ommon sense . . . suggests that a gender-neutral statutory rape law is potentially a greater deterrent of sexual activity than a gender-based law, for the simple reason that a gender-neutral law subjects both men and women to criminal sanctions and thus arguably has a deterrent effect on twice as many potential violators." Post, at 493-494 (emphasis deleted).
Where such differing speculations as to the effect of a statute are plausible, we think it appropriate to defer to the decision of the California Supreme Court, "armed as it was with the knowledge of the facts and circumstances concerning the passage and potential impact of [the statute], and familiar with the milieu in which that provision would operate." Reitman v. Mulkey, 387 U.S. 369, 378-379, 87 S.Ct. 1627, 1633, 18 L.Ed.2d 830 (1967).
It should be noted that two of the three cases relied upon by Justice BRENNAN's dissent are readily distinguishable from the instant one. See post, at 490, n. 3. In both Navedo v. Preisser, 630 F.2d 636 (CA8 1980), and Meloon v. Helgemoe, 564 F.2d 602 (CA1 1977), cert. denied, 436 U.S. 950, 98 S.Ct. 2858, 56 L.Ed.2d 793 (1978), the respective governments asserted that the purpose of the statute was to protect young women from physical injury. Both courts rejected the justification on the grounds that there had been no showing that young females are more likely than males to suffer physical injury from sexual intercourse. They further held, contrary to our decision, that pregnancy prevention was not a "plausible" purpose of the legislation. Thus neither court reached the issue presented here, whether the statute is substantially related to the prevention of teenage pregnancy. Significantly, Meloon has been severely limited by Rundlett v. Oliver, 607 F.2d 495 (CA1 1979), where the court upheld a statutory rape law on the ground that the State had shown that sexual intercourse physically injures young women more than males. Here, of course, even Justice BRENNAN's dissent does not dispute that young women suffer disproportionately the deleterious consequences of illegitimate pregnancy.
1
But see n. 5 and accompanying text, infra.
2
See Cal.Penal Code Ann. §§ 272, 647a (West Supp.1981).
3
Cal.Penal Code Ann. § 288 (West Supp.1981). See People v. Dontanville, 10 Cal.App.3d 783, 796, 89 Cal.Rptr. 172, 180 (2d Dist.).
4
See Cal.Penal Code Ann. §§ 286(b)(1), 288a(b)(1) (West Supp.1981).
5
See Cal.Penal Code Ann. § 31 (West 1970); People v. Haywood, 131 Cal.App.2d 259, 280 P.2d 180 (2d Dist.); People v. Lewis, 113 Cal.App.2d 468, 248 P.2d 461 (1st Dist.). According to statistics maintained by the California Department of Justice Bureau of Criminal Statistics, approximately 14% of the juveniles arrested for participation in acts made unlawful by § 261.5 between 1975 and 1979 were females. Moreover, an underage female who is as culpable as her male partner, or more culpable, may be prosecuted as a juvenile delinquent. Cal.Welf. & Inst.Code Ann. § 602 (West Supp.1981); In re Gladys R., 1 Cal.3d 855, 867-869, 464 P.2d 127, 136-138, 83 Cal.Rptr. 671, 680-682.
6
Males and females are equally prohibited by § 288 from sexual intercourse with minors under 14. Compare Cal.Penal Code Ann. § 288 (West Supp.1981) with Cal.Penal Code Ann. §§ 18, 264 (West Supp.1981).
7
The court noted that from 1971 through 1976, 83.6% of the 4,860 children born to girls under 15 in California were illegitimate, as were 51% of those born to girls 15 to 17. The court also observed that while accounting for only 21% of California pregnancies in 1976, teenagers accounted for 34.7% of legal abortions. See ante, at 470, n. 3.
8
There is also empirical evidence that sexual abuse of young females is a more serious problem than sexual abuse of young males. For example, a review of five studies found that 88% of sexually abused minors were female. Jaffe, Dynneson, & ten Bensel, Sexual Abuse of Children, 129 Am.J. of Diseases of Children 689, 690 (1975). Another study, involving admissions to a hospital emergency room over a 3-year period, reported that 86 of 100 children examined for sexual abuse were girls. Orr & Prietto, Emergency Management of Sexually Abused Children, 133 Am.J. of Diseased Children 630 (1979). See also State v. Craig, 169 Mont. 150, 156-157, 545 P.2d 649, 653; Sarafino, An Estimate of Nationwide Incidence of Sexual Offenses Against Children, 58 Child Welfare, 127, 131 (1979).
9
Most teenage mothers do not finish high school and are disadvantaged economically thereafter. See Moore, Teenage Childbirth and Welfare Dependency, 10 Family Planning Perspectives 233-235 (1978). The suicide rate for teenage mothers is seven times greater than that for teenage girls without children. F. Nye, School-Age Parenthood (Wash.State U.Ext.Bull. No. 667) 8 (1976). And 60% of adolescent mothers aged 15 to 17 are on welfare within two to five years of the birth of their children. Teenage Pregnancy, Everybody's Problem 3-4 (DHEW Publication (HSA) No. 77-5619).
10
Despite the increased availability of contraceptives and sex education, the pregnancy rates for young women are increasing. See Alan Guttmacher Institute, 11 Million Teenagers 12 (1976). See generally C. Chilman, Adolescent Sexuality in a Changing American Society (NIH Pub.No.80-1426, 1980).
The petitioner contends that the statute is overinclusive because it does not allow a defense that contraceptives were used, or that procreation was for some other reason impossible. The petitioner does not allege, however, that he used a contraceptive, or that pregnancy could not have resulted from the conduct with which he was charged. But even assuming the petitioner's standing to raise the claim of overbreadth, it is clear that a statute recognizing the defenses he suggests would encounter difficult if not impossible problems of proof.
11
See, e. g., Phipps-Yonas, Teenage Pregnancy and Motherhood, 50 Am.J. Orthopsychiatry 403, 412 (1980). See also State v. Rundlett, 391 A.2d 815, 819, n. 13, 822 (Me.); Rundlett v. Oliver, 607 F.2d 495, 502 (CA1).
12
See Barnes v. State, 244 Ga. 302, 260 S.E.2d 40; see generally Orr & Prietto, supra; Jaffee, Dynneson, & ten Bensel, supra; Chilman, supra.
13
The fact is that a gender-neutral statute would not necessarily lead to a closer fit with the aim of reducing the problems associated with teenage pregnancy. If both parties were equally liable to prosecution, a female would be far less likely to complain; the very complaint would be self-incriminating. Accordingly, it is possible that a gender-neutral statute would result in fewer prosecutions than the one before us.
In any event, a state legislature is free to address itself to what it believes to be the most serious aspect of a broader problem. "[T]he Equal Protection Clause does not require that a State must choose between attacking every aspect of a problem or not attacking the problem at all." Dandridge v. Williams, 397 U.S. 471, 486-487, 90 S.Ct. 1153, 1162-1163, 25 L.Ed.2d 491; see also Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563.
*
Sharon at the preliminary hearing testified as follows:
"Q. [by the Deputy District Attorney]. On June the 4th, at approximately midnight—midnight of June the 3rd, were you in Rohnert Park?
"A. [by Sharon]. Yes.
"Q. Is that in Sonoma County?
"A. Yes.
"Q. Did anything unusual happen to you that night in Rohnert Park?
"A. Yes.
"Q. Would you briefly describe what happened that night? Did you see the defendant that night in Rohnert Park?
"A. Yes.
"Q. Where did you first meet him?
"A. At a bus stop.
"Q. Was anyone with you?
"A. My sister.
"Q. Was anyone with the defendant?
"A. Yes.
"Q. How many people were with the defendant?
"A. Two.
"Q. Now, after you met the defendant, what happened?
"A. We walked down to the railroad tracks.
"Q. What happened at the railroad tracks?
"A. We were drinking at the railroad tracks and we walked over to this bush and he started kissing me and stuff, and I was kissing him back, too, at first. Then, I was telling him to stop—
"Q. Yes.
"A. —and i was teLling him to slow down and stop. he said, 'okay, okay.' But then he just kept doing it. He just kept doing it and then my sister and two other guys came over to where we were and my sister said—told me to get up and come home. And then I didn't—
"Q. Yes.
"A. —and then my sister and—
"Q. All right.
"A. —David, one of the boys that were there, started walking home and we stayed there and then later—
"Q. All right.
"A. —Bruce left Michael, you know.
"The Court: Michael being the defendant?
"The Witness: Yeah. We was lying there and we were kissing each other, and then he asked me if I wanted to walk him over to the park; so we walked over to the park and we sat down on a bench and then he
started kissing me again and we were laying on the bench. And he told me to take my pants off.
"I said, 'No,' and I was trying to get up and he hit me back down on the bench and then I just said to myself, 'Forget it,' and I let him do what he wanted to do and he took my pants off and he was telling me to put my legs around him and stuff—
* * * * *
"Q. Did you have sexual intercourse with the defendant?
"A. Yeah.
"Q. He did put his penis into your vagina?
"A. Yes.
"Q. You said that he hit you?
"Q. Yeah.
"Q. How did he hit you?
"A. He slugged me in the face.
"Q. With what did he slug you?
"A. His fist.
"Q. Where abouts in the face?
"A. On my chin.
"Q. As a result of that, did you have any bruises or any kind of an injury?
"A. Yeah.
"Q. What happened?
"A. I had bruises.
"The Court: Did he hit you one time or did he hit you more than once?
"The Witness: He hit me about two or three times.
* * * * *
"Q. Now, during the course of that evening, did the defendant ask you your age?
"A. Yeah.
"Q. And what did you tell him?
"A. Sixteen.
"Q. Did you tell him you were sixteen?
"A. Yes.
"Q. Now, you said you had been drinking, is that correct?
"A. Yes.
"Q. Would you describe your condition as a result of the drinking?
"A. I was a little drunk." App. 20-23.
CROSS-EXAMINATION
"Q. Did you go off with Mr. M. away from the others?
"A. Yeah.
"Q. Why did you do that?
"A. I don't know. I guess I wanted to.
"Q. Did you have any need to go to the bathroom when you were there.
"A. Yes.
"Q. And what did you do?
"A. Me and my sister walked down the railroad tracks to some bushes and went to the bathroom.
"Q. Now, you and Mr. M., as I understand it, went off into the bushes, is that correct?
"A. Yes.
"Q. Okay. And what did you do when you and Mr. M. were there in the bushes?
"A. We were kissing and hugging.
"Q. Were you sitting up?
"A. We were laying down.
"Q. You were lying down. This was in the bushes?
"A. Yes.
"Q. How far away from the rest of them were you?
"A. They were just bushes right next to the railroad tracks. We just walked off into the bushes; not very far.
* * * * *
"Q. So your sister and the other two boys came over to where you were, you and Michael were, is that right?
"A. Yeah.
"Q. What did they say to you, if you remember?
"A. My sister didn't say anything. She said, 'Come on, Sharon, let's go home.'
"Q. She asked you to go home with her?
"A. (Affirmative nod.)
"Q. Did you go home with her?
"A. No.
"Q. You wanted to stay with Mr. M.?
"A. I don't know.
"Q. Was this before or after he hit you?
"A. Before.
* * * * *
"Q. What happened in the five minutes that Bruce stayed there with you and Michael?
"A. I don't remember.
"Q. You don't remember at all?
"A. (Negative head shake.)
"Q. Did you have occasion at that time to kiss Bruce?
"A. Yeah.
"Q. You did? You were kissing Bruce at that time?
"A. (Affirmative nod.)
"Q. Was Bruce kissing you?
"A. Yes.
"Q. And were you standing up at this time?
"A. No, we were sitting down.
* * * * *
"Q. Okay. So at this point in time you had left Mr. M. and you were hugging and kissing with Bruce, is that right?
"A. Yeah.
"Q. And you were sitting up.
"A. Yes.
"Q. Was your sister still there then?
"A. No. Yeah, she was at first.
"Q. What was she doing?
"A. She was standing up with Michael and David.
"Q. Yes. Was she doing anything with Michael and David?
"A. No, I don't think so.
"Q. Whose idea was it for you and Bruce to kiss? Did you initiate that?
"A. Yes.
"Q. What happened after Bruce left?
"A. Michael asked me if I wanted to go walk to the park.
"Q. And what did you say?
"A. I said, 'Yes.'
"Q. And then what happened?
"A. We walked to the park.
* * * * *
"Q. How long did it take you to get to the park?
"A. About ten or fifteen minutes.
"Q. And did you walk there?
"A. Yes.
"Q. Did Mr. M. ever mention his name?
"A. Yes." Id., at 27-32.
1
The California Supreme Court acknowledged, and indeed the parties do not dispute, that Cal.Penal Code Ann. § 261.5 (West Supp.1981) discriminates on the basis of sex. Ante, at 467. Because petitioner is male, he faces criminal felony charges and a possible prison term while his female partner remains immune from prosecution. The gender of the participants, not their relative responsibility, determines which of them is subject to criminal sanctions under § 261.5.
As the California Supreme Court stated in People v. Hernandez, 61 Cal.2d 529, 531, 39 Cal.Rptr. 361, 362, 393 P.2d 673, 674 (1964) (footnote omitted):
"[E]ven in circumstances where a girl's actual comprehension contradicts the law's presumption [that a minor female is too innocent and naive to understand the implications and nature of her act], the male is deemed criminally responsible for the act, although himself young and naive and responding to advances which may have been made to him."
2
None of the three opinions upholding the California statute fairly applies the equal protection analysis this Court has so carefully developed since Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976). The plurality opinion, for example, focusing on the obvious and uncontested fact that only females can become pregnant, suggests that the statutory gender discrimination, rather than being invidious, actually ensures equality of treatment. Since only females are subject to a risk of pregnancy, the plurality opinion concludes that "[a] criminal sanction imposed solely on males . . . serves to roughly 'equalize' the deterrents on the sexes." Ante, at 473. Justice STEWART adopts a similar approach. Recognizing that "females can become pregnant as the result of sexual intercourse; males cannot," Justice STEWART concludes that "[y]oung women and men are not similarly situated with respect to the problems and risks associated with intercourse and pregnancy," and therefore § 261.5 "is realistically related to the legitimate state purpose of reducing those problems and risks" (emphasis added). Ante, at 478, 479. Justice BLACKMUN, conceding that some limits must be placed on a State's power to regulate "the control and direction of young people's sexual activities," also finds the statute constitutional. Ante, at 482. He distinguishes the State's power in the abortion context, where the pregnancy has already occurred, from its power in the present context, where the "problem [is] at its inception." He then concludes, without explanation, that "the California statutory rape law . . . is a sufficiently reasoned and constitutional effort to control the problem at its inception." Ibid.
All three of these approaches have a common failing. They overlook the fact that the State has not met is burden of proving that the gender discrimination in § 261.5 is substantially related to the achievement of the State's asserted statutory goal. My Brethren seem not to recognize that California has the burden of proving that a gender-neutral statutory rape law would be less effective than § 261.5 in deterring sexual activity leading to teenage pregnancy. Because they fail to analyze the issue in these terms, I believe they reach an unsupportable result.
3
Gender-based statutory rape laws were struck down in Navedo v. Preisser, 630 F.2d 636 (CA8 1980), United States v. Hicks, 625 F.2d 216 (CA9 1980), and Meloon v. Helgemoe, 564 F.2d 602 (CA1 1977), cert. denied, 436 U.S. 950, 98 S.Ct. 2858, 56 L.Ed.2d 793 (1978), precisely because the government failed to meet this burden of proof.
4
In a remarkable display of sexual stereotyping, the California Supreme Court stated:
"The Legislature is well within its power in imposing criminal sanctions against males, alone, because they are the only persons who may physiologically cause the result which the law properly seeks to avoid." 25 Cal.3d 608, 612, 159 Cal.Rptr. 340, 343, 601 P.2d 572, 575 (1979) (emphasis in original).
5
Petitioner has not questioned the State's constitutional power to achieve its asserted objective by criminalizing consensual sexual activity. However, I note that our cases would not foreclose such a privacy challenge.
The State is attempting to reduce the incidence of teenage pregnancy by imposing criminal sanctions on those who engage in consensual sexual activity with minor females. We have stressed, however, that
"[i]f the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S.Ct. 1029, 1038, 31 L.Ed.2d 349 (1972) (footnote omitted).
Minors, too, enjoy a right of privacy in connection with decisions affecting procreation. Carey v. Population Services International, 431 U.S. 678, 693, 97 S.Ct. 2010, 2020, 52 L.Ed.2d 675 (1977). Thus, despite the suggestion of the plurality to the contrary, ante, at 472-473, n. 8, it is not settled that a State may rely on a pregnancy-prevention justification to make consensual sexual intercourse among minors a criminal act.
6
See Ariz.Rev.Stat.Ann. § 13-1405 (1978); Fla.Stat. § 794.05 (1979); Ill.Rev.Stat., ch. 38, ¶ 11-5 (1979). In addition, eight other States permit both parties to be prosecuted when one of the participants to a consensual act of sexual intercourse is under the age of 16. See Kan.Stat.Ann. § 21-3503 (1974); Mass.Gen.Laws Ann., ch. 265, § 23 (West Supp.1981); Mich.Comp.Laws § 750.13 (1970); Mont.Code Ann. §§ 45-5-501 to 45-5-503 (1979); N.H.Rev.Stat. § 632-A:3 (Supp.1979); Tenn.Code Ann. § 39-3705(4) (Supp.1979); Utah Code Ann. § 76-5-401 (Supp.1979); Vt.Stat.Ann., Tit. 13, § 3252(3) (Supp.1980).
7
There is a logical reason for this. In contrast to laws governing forcible rape, statutory rape laws apply to consensual sexual activity. Force is not an element of the crime. Since a woman who consents to an act of sexual intercourse is unlikely to report her partner to the police—whether or not she is subject to criminal sanctions—enforcement would not be undermined if the statute were to be made gender neutral. See n. 8, infra.
8
As it is, § 261.5 seems to be an ineffective deterrent of sexual activity. Cf. Carey v. Population Services International, supra, at 695, 97 S.Ct., at 2021 (substantial reason to doubt that limiting access to contraceptives will substantially discourage early sexual behavior). According to statistics provided by the State, an average of only 61 juvenile males and 352 adult males were arrested for statutory rape each year between 1975 and 1978. Brief for Respondent 19. During each of those years there were approximately one million Californian girls between the ages of 13-17. Cal. Dept. of Finance, Population Projections for California Counties, 1975-2020, with Age/Sex Detail to 2000, Series E-150 (1977). Although the record in this case does not indicate the incidence of sexual intercourse involving those girls during that period, the California State Department of Health estimates that there were almost 50,000 pregnancies among 13-to-17-year-old girls during 1976. Cal. Dept. of Health, Birth and Abortion Records, and Physician Survey of Office Abortions (1976). I think it is fair to speculate from this evidence that a comparison of the number of arrests for statutory rape in California with the number of acts of sexual intercourse involving minor females in that State would likely demonstrate to a male contemplating sexual activity with a minor female that his chances of being arrested are reassuringly low. I seriously question, therefore, whether § 261.5 as enforced has a substantial deterrent effect. See Craig v. Boren, 429 U.S., at 214, 97 S.Ct., at 465 (STEVENS, J., concurring).
9
California's statutory rape law had its origins in the Statutes of Westminster enacted during the reign of Edward I at the close of the 13th century (3 Edw. 1, ch. 13 (1275); 13 Edw. 1, ch. 34 (1285)). The age of consent at that time was 12 years, reduced to 10 years in 1576 (18 Eliz. 1, ch. 7, § 4). This statute was part of the common law brought to the United States. Thus, when the first California penal statute was enacted, it contained a provision (1850 Cal.Stats., ch. 99, § 47, p. 234) that proscribed sexual intercourse with females under the age of 10. In 1889, the California statute was amended to make the age of consent 14 (1889 Cal.Stats., ch. 191, § 1, p. 223). In 1897, the age was advanced to 16 (1897 Cal.Stats., ch. 139, § 1, p. 201). In 1913 it was fixed at 18, where it now remains (1913 Cal.Stats., ch. 122, § 1, p. 212).
Because females generally have not reached puberty by the age of 10, it is inconceivable that a statute designed to prevent pregnancy would be directed at acts of sexual intercourse with females under that age.
The only legislative history available, the draftsmen's notes to the Penal Code of 1872, supports the view that the purpose of California's statutory rape law was to protect those who were too young to give consent. The draftsmen explained that the "[statutory rape] provision embodies the well settled rule of the existing law; that a girl under ten years of age is incapable of giving any consent to an act of intercourse which can reduce it below the grade of rape." Code Commissioners' note, subd. 1, following Cal.Penal Code, p. 111 (1st ed. 1872). There was no mention whatever of pregnancy prevention. See also Note, Forcible and Statutory Rape: An Exploration of the Operation and Objectives of the Consent Standard, 62 Yale L.J. 55, 74-76 (1952).
10
Past decisions of the California courts confirm that the law was designed to protect the State's young females from their own uninformed decisionmaking. In People v. Verdegreen, 106 Cal. 211, 214-215, 39 P. 607, 608-609 (1895), for example, the California Supreme Court stated:
"The obvious purpose of [the statutory rape law] is the protection of society by protecting from violation the virtue of young and unsophisticated girls. . . . It is the insidious approach and vile tampering with their persons that primarily undermines the virtue of young girls, and eventually destroys it; and the prevention of this, as much as the principal act, must undoubtedly have been the intent of the legislature."
As recently as 1964, the California Supreme Court decided People v. Hernandez, 61 Cal.2d, at 531, 39 Cal.Rptr., at 362, 393 P.2d, at 674, in which it stated that the under-age female
"is presumed too innocent and naive to understand the implications and nature of her act. . . . The law's concern with her capacity or lack thereof to so understand is explained in part by a popular conception of the social, moral and personal values which are preserved by the abstinence from sexual indulgence on the part of a young woman. An unwise disposition of her sexual favor is deemed to do harm both to herself and the social mores by which the community's conduct patterns are established. Hence the law of statutory rape intervenes in an effort to avoid such a disposition."
It was only in deciding Michael M. that the California Supreme Court decided for the first time in the 130-year history of the statute, that pregnancy prevention had become one of the purposes of the statute.
1
"Common sense indicates that many young people will engage in sexual activity regardless of what the New York Legislature does; and further, that the incidence of venereal disease and premarital pregnancy is affected by the availability or unavailability of contraceptives. Although young persons theoretically may avoid those harms by practicing total abstention, inevitably many will not." Carey v. Population Services International, 431 U.S. 678, 714, 97 S.Ct. 2010, 2031, 52 L.Ed.2d 675 (STEVENS, J., concurring in part and in judgment).
2
If a million teenagers became pregnant in 1976, see ante, at 470, n. 3, there must be countless violations of the California statute. The statistics cited by Justice BRENNAN also indicate, as he correctly observes, that the statute "seems to be an ineffective deterrent of sexual activity." See ante, at 493-494, n. 8.
3
See Carey v. Population Services International, supra, at 713, 97 S.Ct., at 2030 (STEVENS, J., concurring in part and in judgment).
4
Equal protection analysis is often said to involve different "levels of scrutiny." It may be more accurate to say that the burden of sustaining an equal protection challenge is much heavier in some cases than in others. Racial classifications, which are subjected to "strict scrutiny," are presumptively invalid because there is seldom, if ever, any legitimate reason for treating citizens differently because of their race. On the other hand, most economic classifications are presumptively valid because they are a necessary component of most regulatory programs. In cases involving discrimination between men and women, the natural differences between the sexes are sometimes relevant and sometimes wholly irrelevant. If those differences are obviously irrelevant, the discrimination should be treated as presumptively unlawful in the same way that racial classifications are presumptively unlawful. Cf. Califano v. Goldfarb, 430 U.S. 199, 223, 97 S.Ct. 1021, 1035, 51 L.Ed.2d 270 (STEVENS, J., concurring in judgment). But if, as in this case, there is an apparent connection between the discrimination and the fact that only women can become pregnant, it may be appropriate to presume that the classification is lawful. This presumption, however, may be overcome by a demonstration that the apparent justification for the discrimination is illusory or wholly inadequate. Thus, instead of applying a "mid-level" form of scrutiny in all sex discrimination cases, perhaps the burden is heavier in some than in others. Nevertheless, as I have previously suggested,
the ultimate standard in these, as in all other equal protection cases, is essentially the same. See Craig v. Boren, 429 U.S. 190, 211-212, 97 S.Ct. 451, 464-465, 50 L.Ed.2d 397 (STEVENS, J., concurring). Professor Cox recently noted that however the level of scrutiny is described, in the final analysis, "the Court is always deciding whether in its judgment the harm done to the disadvantaged class by the legislative classification is disproportionate to the public purposes the measure is likely to achieve." Cox, Book Review, 94 Harv.L.Rev. 700, 706 (1981).
5
See General Electric Co. v. Gilbert, 429 U.S. 125, 162, 97 S.Ct. 401, 421, 50 L.Ed.2d 343 (STEVENS, J., dissenting).
6
A hypothetical racial classification will illustrate my point. Assume that skin pigmentation provides some measure of protection against cancer caused by exposure to certain chemicals in the atmosphere and, therefore, that white employees confront a greater risk than black employees in certain industrial settings. Would it be rational to require black employees to wear protective clothing but to exempt whites from that requirement? It seems to me that the greater risk of harm to white workers would be a reason for including them in the requirement—not for granting them an exemption.
7
In light of this indisputable biological fact, I find somewhat puzzling the California Supreme Court's conclusion, quoted by the plurality, ante, at 467, that males "are the only persons who may physiologically cause the result which the law properly seeks to avoid." 25 Cal.3d 608, 612, 159 Cal.Rptr. 340, 343, 601 P.2d 572, 575 (1979) (emphasis in original). Presumably, the California Supreme Court was referring to the equally indisputable biological fact that only females may become pregnant. However, if pregnancy results from sexual intercourse between two willing participants—and the California statute is directed at such conduct—I would find it difficult to conclude that the pregnancy was "caused" solely by the male participant.
8
According to the State of California:
"The statute is commonly employed in situations involving force, prostitution, pornography or coercion due to status relationships, and the state's interest in these situations is apparent." Brief for Respondent 3. See also id., at 23-25. The State's interest in these situations is indeed apparent and certainly sufficient to justify statutory prohibition of forcible rape, prostitution, pornography, and nonforcible, but nonetheless coerced, sexual intercourse. However, it is not at all apparent to me how this state interest can justify a statute not specifically directed to any of these offenses.
9
Both Justice REHNQUIST and Justice BLACKMUN apparently attach significance to the testimony at the preliminary hearing indicating that the petitioner struck his partner. See opinion of REHNQUIST, J., ante, at 467; opinion of BLACKMUN, J., ante, at 483-488, n. In light of the fact that the petitioner would be equally guilty of the crime charged in the complaint whether or not that testimony is true, it obviously has no bearing on the legal question presented by this case. The question is not whether "the facts . . . fit the crime," opinion of BLACKMUN, J., ante, at 487, that is a question to be answered at trial—but rather, whether the statute defining the crime fits the constitutional requirement that justice be administered in an evenhanded fashion.
| 12
|
450 U.S. 582
101 S.Ct. 1266
67 L.Ed.2d 521
FEDERAL COMMUNICATIONS COMMISSION et al., Petitioners,v.WNCN LISTENERS GUILD et al. INSILCO BROADCASTING CORPORATION et al., Petitioners, v. WNCN LISTENERS GUILD et al. AMERICAN BROADCASTING COMPANIES, INC. et al., Petitioners, v. WNCN LISTENERS GUILD et al. NATIONAL ASSOCIATION OF BROADCASTERS et al., Petitioners, v. WNCN LISTENERS GUILD et al.
Nos. 79-824 to 79-827.
Argued Nov. 3, 1980.
Decided March 24, 1981.
Syllabus
Sections 309(a) and 310(d) of the Communications Act of 1934 (Act) empower the Federal Communications Commission (FCC) to grant an application for renewal or transfer of a radio broadcast license only if it determines that "the public interest, convenience, and necessity" will be served thereby. In implementation of these provisions, the FCC, pursuant to its rulemaking authority, issued a Policy Statement concluding, with respect to ruling on applications for license renewal or transfer, that the public interest is best served by promoting diversity in a radio station's entertainment formats through market forces and competition among broadcasters and that review of an applicant station's format changes was not compelled by the Act's language or history, would not advance the radio-listening public's welfare, and would deter innovation in radio programming. On respondent citizen groups' petition for review of the Policy Statement, the Court of Appeals held that it violated the Act, concluding that the FCC's reliance on market forces to develop diversity in programming was an unreasonable interpretation of the Act's public-interest standard, and that in certain circumstances the FCC is required to regard a change in entertainment format as a substantial and material fact requiring a hearing to determine whether a license renewal or transfer is in the public interest.
Held : The FCC's Policy Statement is not inconsistent with the Act and is a constitutionally permissible means of implementing the Act's public-interest standard. Pp. 593-604.
(a) The FCC has provided a rational explanation for its conclusion that reliance on the market is the best method of promoting diversity in entertainment formats. It has assessed the benefits and the harm likely to flow from Government review of entertainment programming and has concluded that its statutory duties are best fulfilled by not attempting to oversee format changes. Pp. 595-596.
(b) The FCC's implementation of the public-interest standard, when based on a rational weighing of competing policies, is not to be set aside by the Court of Appeals, for "the weighing of policies under the 'public interest' standard is a task that Congress has delegated to the Commission in the first instance." FCC v. National Citizens Committee for Broadcasting, 436 U.S. 775, 810, 98 S.Ct. 2096, 2119, 56 L.Ed.2d 697. Here, the FCC's position on review of format changes reflects a reasonable accommodation of the policy of promoting diversity in programming and the policy of avoiding unnecessary restrictions on licensee discretion. P. 596.
(c) The Policy Statement is consistent with the legislative history of the Act and with the FCC's traditional view that the public interest is best served by promoting diversity in entertainment programming through market forces. Pp. 597-599.
(d) The Policy Statement does not conflict with the First Amendment rights of listeners, since the FCC seeks to further the interests of the listening public as a whole and the First Amendment does not grant individual listeners the right to have the FCC review the abandonment of their favorite entertainment programs. Pp. 603-604.
197 U.S.App.D.C. 319, 610 F.2d 838, reversed and remanded.
David J. Saylor, Washington, D. C., for petitioners, Federal Communication Commission and United States.
Timothy B. Dyk, Washington, D. C., for petitioners in 79-826 and 79-827.
Kristin Booth Glen, New York City, for respondents WNCN Listeners Guild, Inc., et al.
Wilhelmina Reuben Cooke, Washington, D. C., for respondents, The Office of Communication of United Church of Christ, et al.
Justice WHITE delivered the opinion of the Court.
1
Sections 309(a) and 310(d) of the Communications Act of 1934, 48 Stat. 1064, as amended, 47 U.S.C. § 151 et seq. (Act), empower the Federal Communications Commission to grant an application for license transfer1 or renewal only if it determines that "the public interest, convenience, and necessity" will be served thereby.2 The issue before us is whether there are circumstances in which the Commission must review past or anticipated changes in a station's entertainment programming when it rules on an application for renewal or transfer of a radio broadcast license. The Commission's present position is that it may rely on market forces to promote diversity in entertainment programming and thus serve the public interest.
2
This issue arose when, pursuant to its informal rulemaking authority, the Commission issued a "Policy Statement" concluding that the public interest is best served by promoting diversity in entertainment formats through market forces and competition among broadcasters and that a change in entertainment programming is therefore not a material factor that should be considered by the Commission in ruling on an application for license renewal or transfer. Respondents, a number of citizen groups interested in fostering and preserving particular entertainment formats, petitioned for review in the Court of Appeals for the District of Columbia Circuit. That court held that the Commission's Policy Statement violated the Act. We reverse the decision of the Court of Appeals.
3
* Beginning in 1970, in a series of cases involving license transfers,3 the Court of Appeals for the District of Columbia Circuit gradually developed a set of criteria for determining when the "public-interest" standard requires the Commission to hold a hearing to review proposed changes in entertainment formats.4 Noting that the aim of the Act is "to secure the maximum benefits of radio to all the people of the United States," National Broadcasting Co. v. United States, 319 U.S. 190, 217, 63 S.Ct. 997, 1009, 87 L.Ed. 1344 (1943), the Court of Appeals ruled in 1974 that "preservation of a format [that] would otherwise disappear, although economically and technologically viable and preferred by a significant number of listeners, is generally in the public interest." Citizens Committee to Save WEFM v. FCC, 165 U.S.App.D.C. 185, 207, 506 F.2d 246, 268 (en banc). It concluded that a change in format would not present "substantial and material questions of fact" requiring a hearing if (1) notice of the change had not precipitated "significant public grumbling"; (2) the segment of the population preferring the format was too small to be accommodated by available frequencies; (3) there was an adequate substitute in the service area for the format being abandoned;5 or (4) the format would be economically unfeasible even if the station were managed efficiently.6 The court rejected the Commission's position that the choice of entertainment formats should be left to the judgment of the licensee,7 stating that the Commission's interpretation of the public-interest standard was contrary to the Act.8
4
In January 1976, the Commission responded to these decisions by undertaking an inquiry into its role in reviewing format changes.9 In particular, the Commission sought public comment on whether the public interest would be better served by Commission scrutiny of entertainment programming or by reliance on the competitive marketplace.10
5
Following public notice and comment, the Commission issued a Policy Statement11 pursuant to its rulemaking authority under the Act.12 The Commission concluded in the Policy Statement that review of format changes was not compelled by the language or history of the Act, would not advance the welfare of the radio-listening public, would pose substantial administrative problems, and would deter innovation in radio programming. In support of its position, the Commission quoted from FCC v. Sanders Brothers Radio Station, 309 U.S. 470, 475, 60 S.Ct. 693, 697, 84 L.Ed. 869 (1940): "Congress intended to leave competition in the business of broadcasting where it found it, to permit a licensee . . . to survive or succumb according to his ability to make his programs attractive to the public."13 The Commission also emphasized that a broadcaster is not a common carrier14 and therefore should not be subjected to a burden similar to the common carrier's obligation to continue to provide service if abandonment of that service would conflict with public convenience or necessity.15
6
The Commission also concluded that practical considerations as well as statutory interpretation supported its reluctance to regulate changes in formats. Such regulation would require the Commission to categorize the formats of a station's prior and subsequent programming to determine whether a change in format had occurred; to determine whether the prior format was "unique";16 and to weigh the public detriment resulting from the abandonment of a unique format against the public benefit resulting from that change. The Commission emphasized the difficulty of objectively evaluating the strength of listener preferences, of comparing the desire for diversity within a particular type of programming to the desire for a broader range of program formats and of assessing the financial feasibility of a unique format.17
7
Finally, the Commission explained why it believed that market forces were the best available means of producing diversity in entertainment formats. First, in large markets, competition among broadcasters had already produced "an almost bewildering array of diversity" in entertainment formats.18 Second, format allocation by market forces accommodates listeners' desires for diversity within a given format and also produces a variety of formats.19 Third, the market is far more flexible than governmental regulation and responds more quickly to changing public tastes. Therefore, the Commission concluded that "the market is the allocation mechanism of preference for entertainment formats, and . . . Commission supervision in this area will not be conducive either to producing program diversity [or] satisfied radio listeners."20
8
The Court of Appeals, sitting en banc, held that the Commission's policy was contrary to the Act as construed and applied in the court's prior format decisions. 197 U.S.App.D.C. 319, 610 F.2d 838 (1979). The court questioned whether the Commission had rationally and impartially re-examined its position21 and particularly criticized the Commission's failure to disclose a staff study on the effectiveness of market allocation of formats before it issued the Policy Statement.22 The court then responded to the Commission's criticisms of the format doctrine. First, although conceding that market forces generally lead to diversification of formats, it concluded that the market only imperfectly reflects listener preferences23 and that the Commission is statutorily obligated to review format changes whenever there is "strong prima facie evidence that the market has in fact broken down." Id., at 332, 610 F.2d, at 851. Second, the court stated that the administrative problems posed by the format doctrine were not insurmountable. Hearings would only be required in a small number of cases, and the Commission could cope with problems such as classifying radio format by adopting "a rational classification schema." Id., at 334, 610 F.2d, at 853. Third, the court observed that the Commission had not demonstrated that the format doctrine would deter innovative programming.24 Finally, the court explained that it had not directed the Commission to engage in censorship or to impose common carrier obligations on licensees: WEFM did not authorize the Commission to interfere with licensee programming choices or to force retention of an existing format; it merely stated that the Commission had the power to consider a station's format in deciding whether license renewal or transfer would be consistent with the public interest. 197 U.S.App.D.C., at 332-333, 610 F.2d, at 851-852.
9
Although conceding that it possessed neither the expertise nor the authority to make policy decisions in this area, the Court of Appeals asserted that the format doctrine was "law," not "policy,"25 and was of the view that the Commission had not disproved the factual assumptions underlying the format doctrine.26 Accordingly, the court declared that the Policy Statement was "unavailing and of no force and effect." Id., at 339, 610 F.2d, at 858.27
II
10
Rejecting the Commission's reliance on market forces to develop diversity in programming as an unreasonable interpretation of the Act's public-interest standard, the Court of Appeals held that in certain circumstances the Commission is required to regard a change in entertainment format as a substantial and material fact in deciding whether a license renewal or transfer is in the public interest. With all due respect, however, we are unconvinced that the Court of Appeals' format doctrine is compelled by the Act and that the Commission's interpretation of the public-interest standard must therefore be set aside.
11
It is common ground that the Act does not define the term "public interest, convenience, and necessity."28 The Court has characterized the public-interest standard of the Act as "a supple instrument for the exercise of discretion by the expert body which Congress has charged to carry out its legislative policy." FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 138, 60 S.Ct. 437, 439, 84 L.Ed. 656 (1940). Although it was declared in National Broad casting Co. v. United States, that the goal of the Act is "to secure the maximum benefits of radio to all the people of the United States," 319 U.S., at 217, 63 S.Ct., at 1010, it was also emphasized that Congress had granted the Commission broad discretion in determining how that goal could best be achieved. The Court accordingly declined to substitute its own views on the best method of encouraging effective use of the radio for the views of the Commission. Id., at 218, 63 S.Ct., at 1010. Similarly, in FCC v. National Citizens Committee for Broadcasting, 436 U.S. 775, 98 S.Ct. 2096, 56 L.Ed.2d 697 (1978), we deemed the policy of promoting the widest possible dissemination of information from diverse sources to be consistent with both the public-interest standard and the First Amendment, id., at 795, 98 S.Ct., at 2112, but emphasized the Commission's broad power to regulate in the public interest. We noted that the Act permits the Commission to promulgate "such rules and regulations, . . . not inconsistent with law, as may be necessary to carry out the provisions of [the Act],"29 and that this general rulemaking authority permits the Commission to implement its view of the public-interest standard of the Act "so long as that view is based on consideration of permissible factors and is otherwise reasonable." Id., at 793, 98 S.Ct., at 2111.30 Furthermore, we recognized that the Commission's decisions must sometimes rest on judgment and prediction rather than pure factual determinations. In such cases complete factual support for the Commission's ultimate conclusions is not required, since " 'a forecast of the direction in which future public interest lies necessarily involves deductions based on the expert knowledge of the agency.' "31
12
The Commission has provided a rational explanation for its conclusion that reliance on the market is the best method of promoting diversity in entertainment formats. The Court of Appeals and the Commission agree that in the vast majority of cases market forces provide sufficient diversity. The Court of Appeals favors Government intervention when there is evidence that market forces have deprived the public of a "unique" format, while the Commission is content to rely on the market, pointing out that in many cases when a station changes its format, other stations will change their formats to attract listeners who preferred the discontinued format. The Court of Appeals places great value on preserving diversity among formats, while the Commission emphasizes the value of intraformat as well as interformat diversity. Finally, the Court of Appeals is convinced that review of format changes would result in a broader range of formats, while the Commission believes that Government intervention is likely to deter innovative programming.
13
In making these judgments, the Commission has not forsaken its obligation to pursue the public interest. On the contrary, it has assessed the benefits and the harm likely to flow from Government review of entertainment programming, and on balance has concluded that its statutory duties are best fulfilled by not attempting to oversee format changes. This decision was in major part based on predictions as to the probable conduct of licensees and the functioning of the broadcasting market and on the Commission's assessment of its capacity to make the determinations required by the format doctrine. The Commission concluded that " '[e]ven after all relevant facts ha[d] been fully explored in an evidentiary hearing, [the Commission] would have no assurance that a decision finally reached by [the Commission] would contribute more to listener satisfaction than the result favored by station management.' " Policy Statement, 60 F.C.C.2d 858, 865 (1976). It did not assert that reliance on the marketplace would achieve a perfect correlation between listener preferences and available entertainment programming. Rather, it recognized that a perfect correlation would never be achieved, and it concluded that the marketplace alone could best accommodate the varied and changing tastes of the listening public. These predictions are within the institutional competence of the Commission.
14
Our opinions have repeatedly emphasized that the Commission's judgment regarding how the public interest is best served is entitled to substantial judicial deference. See, e. g., FCC v. National Citizens Committee for Broadcasting, supra; FCC v. WOKO, Inc., 329 U.S. 223, 229, 67 S.Ct. 213, 216, 91 L.Ed. 204 (1946). Furthermore, diversity is not the only policy the Commission must consider in fulfilling its responsibilities under the Act. The Commission's implementation of the public-interest standard, when based on a rational weighing of competing policies, is not to be set aside by the Court of Appeals, for "the weighing of policies under the 'public interest' standard is a task that Congress has delegated to the Commission in the first instance." FCC v. National Citizens Committee for Broadcasting, supra, at 810, 98 S.Ct., at 2119. The Commission's position on review of format changes reflects a reasonable accommodation of the policy of promoting diversity in programming and the policy of avoiding unnecessary restrictions on licensee discretion. As we see it, the Commission's Policy Statement is in harmony with cases recognizing that the Act seeks to preserve journalistic discretion while promoting the interests of the listening public.32
15
The Policy Statement is also consistent with the legislative history of the Act. Although Congress did not consider the precise issue before us, it did consider and reject a proposal to allocate a certain percentage of the stations to particular types of programming.33 Similarly, one of the bills submitted prior to passage of the Radio Act of 192734 included a provision requiring stations to comply with programming priorities based on subject matter.35 This provision was eventually deleted since it was considered to border on censorship.36 Congress subsequently added a section to the Radio Act of 1927 expressly prohibiting censorship and other "interfer[ence] with the right of free speech by means of radio communication."37 That section was retained in the Communications Act.38 As we read the legislative history of the Act, Congress did not unequivocally express its disfavor of entertainment format review by the Commission, but neither is there substantial indication that Congress expected the public-interest standard to require format regulation by the Commission. The legislative history of the Act does not support the Court of Appeals and provides insufficient basis for invalidating the agency's construction of the Act.
16
In the past we have stated that "the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong . . . ."39 Prior to 1970, the Commission consistently stated that the choice of programming formats should be left to the licensee.40 In 1971, the Commission restated that position but announced that any application for license transfer or renewal involving a substantial change in program format would have to be reviewed in light of the Court of Appeals' decision in Citizens Committee to Preserve the Voice of the Arts in Atlanta, 141 U.S.App.D.C. 109, 436 F.2d 263, 267 (1970), in which the Court of Appeals first articulated the format doctrine.41 In 1973, in a statement accompanying the grant of the transfer application that was later challenged in WEFM, a majority of the Commissioners joined in a commitment to "take an extra hard look at the reasonableness of any proposal which would deprive a community of its only source of a particular type of programming."42 However, the Commission's later Policy Statement concluded that this approach was "neither administratively tenable nor necessary in the public interest."43 It is thus apparent that although the Commission was obliged to modify its policies to conform to the Court of Appeals' format doctrine, the Policy Statement reasserted the Commission's traditional preference for achieving diversity in entertainment programming through market forces.
III
17
It is contended that rather than carrying out its duty to make a particularized public-interest determination on every application that comes before it, the Commission, by invariably relying on market forces, merely assumes that the public interest will be served by changes in entertainment format. Surely, it is argued, there will be some format changes that will be so detrimental to the public interest that inflexible application of the Commission's Policy Statement would be inconsistent with the Commission's duties. But radio broadcasters are not required to seek permission to make format changes. The issue of past or contemplated entertainment format changes arises in the courses of renewal and transfer proceedings; if such an application is approved, the Commission does not merely assume but affirmatively determines that the requested renewal or transfer will serve the public interest.
18
Under its present policy, the Commission determines whether a renewal or transfer will serve the public interest without reviewing past or proposed changes in entertainment format. This policy is based on the Commission's judgment that market forces, although they operate imperfectly, not only will more reliably respond to listener preference than would format oversight by the Commission but also will serve the end of increasing diversity in entertainment programming. This Court has approved of the Commission's goal of promoting diversity in radio programming, FCC v. Midwest Video Corp., 440 U.S. 689, 699, 99 S.Ct. 1435, 1441, 59 L.Ed.2d 692 (1979), but the Commission is nevertheless vested with broad discretion in determining how much weight should be given to that goal and what policies should be pursued in promoting it. The Act itself, of course, does not specify how the Commission should make its public-interest determinations.
19
A major underpinning of its Policy Statement is the Commission's conviction, rooted in its experience, that renewal and transfer cases should not turn on the Commission's presuming to grasp, measure, and weigh the elusive and difficult factors involved in determining the acceptability of changes in entertainment format. To assess whether the elimination of a particular "unique" entertainment format would serve the public interest, the Commission would have to consider the benefit as well as the detriment that would result from the change. Necessarily, the Commission would take into consideration not only the number of listeners who favor the old and the new programming but also the intensity of their preferences. It would also consider the effect of the format change on diversity within formats as well as on diversity among formats. The Commission is convinced that its judgments in these respects would be subjective in large measure and would only approximately serve the public interest. It is also convinced that the market, although imperfect, would serve the public interest as well or better by responding quickly to changing preferences and by inviting experimentation with new types of programming. Those who would overturn the Commission's Policy Statement do not take adequate account of these considerations.44
20
It is also contended that since the Commission has responded to listener complaints about nonentertainment programming, it should also review challenged changes in entertainment formats.45 But the difference between the Commission's treatment of nonentertainment programming and its treatment of entertainment programming is not as pronounced as it may seem. Even in the area of nonentertainment programming, the Commission has afforded licensees broad discretion in selecting programs. Thus, the Commission has stated that "a substantial and material question of fact [requiring an evidentiary hearing] is raised only when it appears that the licensee has abused its broad discretion by acting unreasonably or in bad faith." Mississippi Authority for Educational TV, 71 F.C.C.2d 1296, 1308 (1979). Furthermore, we note that the Commission has recently re-examined its regulation of commercial radio broadcasting in light of changes in the structure of the radio industry. See Notice of Inquiry and Proposed Rulemaking, In the Matter of Deregulation of Radio, 73 F.C.C.2d 457 (1979). As a result of that re-examination, it is eliminated rules requiring maintenance of comprehensive program logs, guidelines on the amount of nonentertainment programming radio stations must offer, formal requirements governing ascertainment of community needs, and guidelines limiting commercial time. See Deregulation of Radio, 46 Fed.Reg. 13888 (1981) (to be codified at 47 CFR Parts 0 and 73).
21
These cases do not require us to consider whether the Commission's present or past policies in the area of nonentertainment programming comply with the Act. We attach some weight to the fact that the Commission has consistently expressed a preference for promoting diversity in entertainment programming through market forces, but our decision ultimately rests on our conclusion that the Commission has provided a reasonable explanation for this preference in its Policy Statement.
22
We decline to overturn the Commission's Policy Statement, which prefers reliance on market forces to its own attempt to oversee format changes at the behest of disaffected listeners. Of course, the Commission should be alert to the consequences of its policies and should stand ready to alter its rule if necessary to serve the public interest more fully. As we stated in National Broadcasting Co. v. United States :
23
"If time and changing circumstances reveal that the 'public interest' is not served by application of the Regulations, it must be assumed that the Commission will act in accordance with its statutory obligations." 319 U.S., at 225, 63 S.Ct., at 1013.
IV
24
Respondents contend that the Court of Appeals judgment should be affirmed because, even if not violative of the Act, the Policy Statement conflicts with the First Amendment rights of listeners "to receive suitable access to social, political, esthetic, moral, and other ideas and experiences." Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390, 89 S.Ct. 1794, 1806, 23 L.Ed.2d 371 (1969). Red Lion held that the Commission's "fairness doctrine" was consistent with the public-interest standard of the Communications Act and did not violate the First Amendment, but rather enhanced First Amendment values by promoting "the presentation of vigorous debate of controversial issues of importance and concern to the public." Id., at 385, 89 S.Ct., at 1804. Although observing that the interests of the people as a whole were promoted by debate of public issues on the radio, we did not imply that the First Amendment grants individual listeners the right to have the Commission review the abandonment of their favorite entertainment programs. The Commission seeks to further the interests of the listening public as a whole by relying on market forces to promote diversity in radio entertainment formats and to satisfy the entertainment preferences of radio listeners.46 This policy does not conflict with the First Amendment.47
25
Contrary to the judgment of the Court of Appeals, the Commission's Policy Statement is not inconsistent with the Act. It is also a constitutionally permissible means of implementing the public-interest standard of the Act. Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
26
So ordered.
27
Justice MARSHALL, with whom Justice BRENNAN joins, dissenting.
28
Under §§ 309(a) and 310(d) of the Communications Act of 1934, 48 Stat. 1064, as amended, 47 U.S.C. § 151 et seq. (Act), the Federal Communications Commission (Commission) may not approve an application for a radio license transfer, assignment, or renewal unless it finds that such change will serve "the public interest, convenience, and necessity."1 Any party in interest may petition the Commission to deny the application, § 309(d)(1), and the Commission must hold a hearing if "a substantial and material question of fact is presented," § 309(d)(2). In my judgment, the Court of Appeals correctly held that in certain limited circumstances, the Commission may be obliged to hold a hearing to consider whether a proposed change in a licensee's entertainment program format is in the "public interest."2 Accordingly, I would affirm the judgment of the Court of Appeals insofar as it vacated the Commission's "Policy Statement."3
29
* At the outset, I should point out that my understanding of the Court of Appeals' format cases is very different from the Commission's.4 Both in its Policy Statement and in its brief before this Court, the Commission has insisted that the format doctrine espoused by the Court of Appeals, "favor[s] a system of pervasive governmental regulation,"5 requiring " 'comprehensive, discriminating, and continuing state surveillance.'6 The Commission further contends that enforcement of the format doctrine would impose "common carrier" obligations on broadcasters and substitute for "the imperfect system of free competition . . . a system of broadcast programming by government decree."7 Were this an accurate description of the format doctrine, I would join the Court in reversing the judgment below.8 However, I agree with the Court of Appeals that "the actual features of [its format doctrine] are scarcely visible in [the Commission's] highly-colored portrait." 197 U.S.App.D.C. 319, 332, 610 F.2d 838, 851 (1979).
30
In fact, the Court of Appeals accepted the Commission's conclusion that entertainment program formats should ordinarily be left to competitive forces. The court emphasized that the format doctrine "was not intended as an alternative to format allocation by market forces," and "fully recognized that market forces do generally provide diversification of formats." Ibid. (Emphasis in original.) It explained that "the Commission's obligation to consider format issues arises only when there is strong prima facie evidence that the market has in fact broken down," ibid., and suggested that a breakdown in the market may be inferred when notice of a format change "precipitate[s] an outpouring of protest," id., at 323, 610 F.2d, at 842, or "significant public grumbling," ibid. The Court of Appeals further stated that "[n]o public interest issue is raised if (1) there is an adequate substitute in the service area for the format being abandoned, (2) there is no substantial support for the endangered format as evidenced by an outcry of public protest, (3) the devotees of the endangered format are too few to be served by the available frequencies, or (4) the format is not financially viable." Id., at 332, 610 F.2d, at 851. Finally, the Court of Appeals indicated that the Commission's obligation to hold an evidentiary hearing is limited to those situations in which the record presents substantial questions of material fact. Id., at 324, 610 F.2d, at 843.
31
The Court of Appeals thus made clear that the format doctrine comes into play only in a few limited situations. Consequently, the issue presented by these cases is not whether the Commission may adopt a general policy of relying on licensee discretion and market forces to ensure diversity in entertainment programming formats. Rather, the question before us is whether the Commission may apply its general policy on format changes indiscriminately and without regard to the effect in particular cases.
II
32
Although the Act does not define "public interest, convenience, and necessity," it is difficult to quarrel with the basic premise of the Court of Appeals' format cases that the term includes "a concern for diverse entertainment programming." Id., at 323, 610 F.2d, at 842.9 This Court has indicated that one of the Act's goals is "to secure the maximum benefits of radio to all the people of the United States." National Broadcasting Co. v. United States, 319 U.S. 190, 217, 63 S.Ct. 997, 1009, 87 L.Ed. 1344 (1943).10 And we have recognized "the long-established regulatory goal of . . . diversification of programming." FCC v. Midwest Video Corp., 440 U.S. 689, 699, 99 S.Ct. 1435, 1441, 59 L.Ed.2d 692 (1979). At the same time, our cases have acknowledged that the Commission enjoys broad discretion in determining how best to accomplish this goal. See FCC v. National Citizens Committee for Broadcasting, 436 U.S. 775, 98 S.Ct. 2096, 56 L.Ed.2d 697 (1978); National Broadcasting Co. v. United States, supra. The Commission has concluded that a general policy of relying on market forces is the best method for promoting diversity in entertainment programming formats. As the majority notes, ante, at 595, this determination largely rests on the Commission's predictions about licensee behavior and the functioning of the radio broadcasting market.
33
I agree with the majority that predictions of this sort are within the Commission's institutional competence. I am also willing to assume that a general policy of disregarding format changes in making the "public interest" determination required by the Act is not inconsistent with the Commission's statutory obligation to give individualized consideration to each application. The Commission has broad rulemaking powers under the Act,11 and we have approved efforts by the Commission to implement the Act's "public interest" requirement through rules and policies of general application. See, e. g., FCC v. National Citizens Committee for Broadcasting, supra; United States v. Storer Broadcasting Co., 351 U.S. 192, 76 S.Ct. 763, 100 L.Ed. 1081 (1956); National Broadcasting Co. v. United States, supra.
34
The problem with the particular Policy Statement challenged here, however, is that it lacks the flexibility we have required of such general regulations and policies. See, e. g., United States v. Storer Broadcasting Co., supra, National Broadcasting Co. v. United States, supra. The Act imposes an affirmative duty on the Commission to make a particularized "public interest" determination for each application that comes before it. As we explained in National Broadcasting Co. v. United States, supra, 319 U.S., at 225, 63 S.Ct., at 1013, the Commission must, in each case, "exercise an ultimate judgment whether the grant of a license would serve the 'public interest, convenience, or necessity.' " The Policy Statement completely forecloses any possibility that the Commission will re-examine the validity of its general policy on format changes as it applies to particular situations. Thus, even when it can be conclusively demonstrated that a particular radio market does not function in the manner predicted by the Commission, the Policy Statement indicates that the Commission will blindly assume that a proposed format change is in the "public interest." This result would occur even where reliance on the market to ensure format diversity is shown to be misplaced, and where it thus appears that action by the Commission is necessary to promote the public interest in diversity. This outcome is not consistent with the Commission's statutory responsibilities.
35
Moreover, our cases have indicated that an agency's discretion to proceed in complex areas through general rules is intimately connected to the existence of a "safety valve" procedure that allows the agency to consider applications for exemptions based on special circumstances. See E. I. du Pont de Nemours & Co. v. Train, 430 U.S. 112, 128, 97 S.Ct. 965, 975, 51 L.Ed.2d 204 (1977); Permian Basin Area Rate Cases, 390 U.S. 747, 771-772, 88 S.Ct. 1344, 1362-1363, 20 L.Ed.2d 312 (1968); FPC v. Texaco Inc., 377 U.S. 33, 40-41, 84 S.Ct. 1105, 1109-1110, 12 L.Ed.2d 112 (1964); United States v. Storer Broadcasting Co., supra, 351 U.S., at 204-205, 76 S.Ct., at 771-772; National Broadcasting Co. v. United States, supra, 319 U.S., at 207, 225, 63 S.Ct., at 1005, 1013. See also WAIT Radio v. FCC, 135 U.S.App.D.C. 317, 321, 418 F.2d 1153, 1157 (1969); American Airlines v. CAB, 123 U.S.App.D.C. 310, 359 F.2d 624 (en banc), cert. denied, 385 U.S. 843, 87 S.Ct. 73, 17 L.Ed.2d 75 (1966); WBEN, Inc. v. United States, 396 F.2d 601, 618 (CA2), cert. denied, 393 U.S. 914, 89 S.Ct. 238, 21 L.Ed.2d 200 (1968). For example, in National Broadcasting Co. v. United States, supra, we upheld the Commission's Chain Broadcasting Regulations, but we emphasized the need for flexibility in administering the rules. We noted that the "Commission provided that 'networks will be given full opportunity, on proper application . . . to call our attention to any reasons why the principle should be modified or held inapplicable.' " Id., 319 U.S., at 207, 63 S.Ct., at 1005. And we concluded:
36
"The Commission therefore did not bind itself inflexibly to the licensing policies expressed in the regulations. In each case that comes before it the Commission must still exercise an ultimate judgment whether the grant of a license would serve the 'public interest, convenience, or necessity.' If time and changing circumstances reveal that the 'public interest' is not served by application of the Regulations, it must be assumed that the Commission will act in accordance with its statutory obligations." Id., at 225, 63 S.Ct., at 1013.
37
Similarly, in upholding the Commission's Multiple Ownership Rules in United States v. Storer Broadcasting Co. supra, we noted that the regulations allowed an opportunity for a "full hearing" for applicants "that set out adequate reasons why the Rules should be waived or amended." Id., at 205, 76 S.Ct., at 771.12
38
This "safety valve" feature is particularly essential where, as here, the agency's decision that a general policy promotes the public interest is based on predictions and forecasts that by definition lack complete factual support. As the Court of Appeals admonished the Commission in a related context:
39
"The Commission is charged with administration in the 'public interest.' That an agency may discharge its responsibilities by promulgating rules of general application which, in the overall perspective, establish the 'public interest' for a broad range of situations, does not relieve it of an obligation to seek out the 'public interest' in particular, individualized cases. A general rule implies that a commission need not re-study the entire problem de novo and reconsider policy every time it receives an application for a waiver of the rule. On the other hand, a general rule, deemed valid because its overall objectives are in the public interest, may not be in the 'public interest' if extended to an applicant who proposes a new service that will not undermine the policy, served by the rule, that has been adjudged in the public interest." WAIT Radio v. FCC, supra, at 321, 418 F.2d, at 1157.
40
In my judgment, this requirement of flexibility compels the Commission to provide a procedure through which listeners can attempt to show that a particular radio market differs from the Commission's paradigm, and thereby persuade the Commission to give particularized consideration to a proposed format change. Indeed, until the Policy Statement was published, the Commission had resolved to "take an extra hard look at the reasonableness of any proposal which would deprive a community of its only source of a particular type of programming."13 As I see it, the Court of Appeals' format doctrine was merely an attempt by that court to delineate the circumstances in which the Commission must temper its general policy in view of special circumstances. Perhaps the court would have been better advised to leave the task of defining these situations to the Commission.14 But one need not endorse every feature of the Court of Appeals' approach to conclude that the court correctly invalidated the Commission's Policy Statement because of its omission of a "safety valve" procedure.
41
This omission is not only a departure from legal precedents; it is also a departure from both the Commission's consistent policies and its admissions here. For the Commission concedes that the radio market is an imperfect reflection of listener preferences,15 and that listeners have programming interests that may not be reflected in the marketplace. The Commission has long recognized its obligation to examine program formats in making the "public interest" determination required by the Act. As early as 1929, the Commission's predecessor, the Federal Radio Commission, adopted the position that licensees were expected to provide a balanced program schedule designed to serve all substantial groups in their communities. Great Lakes Broadcasting Co., 3 F.R.C.Ann.Rep. 32, 34, rev'd on other grounds, 37 F.2d 993 (D.C.Cir.), cert. dism'd, 281 U.S. 706, 50 S.Ct. 467, 74 L.Ed. 1129 (1929). The Commission's famous "Blue Book,"16 published in 1946, reaffirmed the emphasis on a well-balanced program structure and declared that the Commission has "an affirmative duty, in its public interest determinations, to give full consideration to program service."17 As the Commission explained:
42
"It has long been an established policy of broadcasters themselves and of the Commission that the American system of broadcasting must serve significant minorities among our population, and the less dominant needs and tastes which most listeners have from time to time."18
43
This theme was reiterated in the Commission's 1960 Program Statement,19 which set forth 14 specific categories of programming that were deemed "major elements usually necessary to meet the public interest, needs and desires of the community,"20 and which emphasized the necessity of each broadcaster's programming serving the "tastes and needs" of its local community.21 To ensure that licensee programming serves the needs of the community, the Commission has, for example, decreed that licensees have a special obligation to provide programs for children, even going so far as to declare that licensees must provide "a reasonable amount of [children's] programming which is designed to educate and inform and not simply to entertain."22
44
Moreover, in examining renewal applications, the Commission has considered claims that a licensee does not provide adequate children's programming,23 or programming for women and children,24 or for a substantial Spanish-American community,25 or that the licensee has ignored issues of significance to the Negro community,26 or has not provided programming of specific interest to residents of a particular area.27 In each case, the Commission reviewed submissions ranging from general summaries to transcripts of programs, to determine whether the licensee's programming met the public-interest standard.
45
There is an obvious inconsistency between the Commission's recognition that the "public interest" standard requires it to consider licensee programming in the situations described above and its Policy Statement on review of entertainment program formats. Indeed, the sole instance in which the Commission will not consider listener complaints about programming is when they pertain to proposed changes in entertainment program formats. The Policy Statement attempts to explain this exceptional treatment of format changes by drawing a distinction between entertainment and nonentertainment programming. The Policy Statement suggests that the Commission reviews only nonentertainment programming, and even then, only in special circumstances. Thus, the Policy Statement argues that the fairness doctrine and political broadcasting rules issued pursuant to § 315, 47 U.S.C. § 315, allow the Commission to exercise direct control of programming. In these areas, reasons the Statement, the Commission's role "is limited to directing the licensee to broadcast some additional material so as not to completely ignore the viewpoints of others in the community."28 This "limited involvement in licensee decisionmaking in the area of news and public affairs"29 is contrasted, in the Commission's view to "the pervasive, censorial nature of the involvement in format regulation."30 The majority presumably concludes that the Commission has provided a rational explanation for distinguishing between entertainment and nonentertainment programming. With all due respect, I disagree.
46
In the first place, the distinction the Commission tries to draw between entertainment and nonentertainment programming is questionable. It is not immediately apparent, for example, why children's programming necessarily falls on the "nonentertainment" side of the spectrum, and the Commission has provided no explanation of how it decides the category to which particular programming belongs. Second, I see no reason why the Commission's review of entertainment programming cannot be as limited as its review of nonentertainment programming. Nothing prevents the Commission from limiting its role in reviewing format changes to "directing the licensee to broadcast additional material," thereby ensuring that the viewpoints of listeners who complain about a proposed format change are not completely ignored. Third, and most important, neither the fairness doctrine nor the political broadcasting rules have anything to do with the various situations described above in which the Commission has not hesitated to consider program formats in making the "public interest" determination. The fairness doctrine imposes an obligation on licensees to devote a "reasonable percentage" of broadcast time to controversial issues of public importance, and it requires that the coverage be fair in that it accurately reflect the opposing views. See Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969). The political broadcasting rules regulate broadcasts by candidates for federal and nonfederal public office. See The Law of Political Broadcasting and Cablecasting, 69 F.C.C.2d 2209 (1978). The Commission's examination of whether a broadcaster's format includes programming directed at women or at residents of the local community, or its requirement that licensees provide programming designed to serve the unique needs of children, simply has nothing to do with either the fairness doctrine or the political broadcasting rules. Thus, the Commission's purported justification for its inconsistency is no explanation at all, and I am puzzled by the majority's apparent conclusion that it provides a rational basis for the Commission's policy.
47
The majority attempts to minimize the inconsistency in the Commission's treatment of entertainment and nonentertainment programming by postulating that the difference "is not as pronounced as it may seem," ante, at 602. This observation, even if accurate, is simply beside the point. What is germane is the Commission's failure to consider listener complaints about entertainment programming to the same extent and in the same manner as it reviews complaints about nonentertainment programming. Thus, whereas the Commission will hold an evidentiary hearing to review complaints about nonentertainment programming where " 'it appears that the licensee has . . . act[ed] unreasonably or in bad faith,' " ibid. (quoting Mississippi Authority for Educational TV, 71 F.C.C.2d 1296, 1308 (1979)), the Commission will not consider an identical complaint about a licensee's change in its entertainment programming. As I have indicated, see supra, at 614-616, neither the Commission nor the majority is able to offer a satisfactory explanation for this inconsistency.
48
Nor can the Commission find refuge in its claim that " '[e]ven after all relevant facts [h]ad been fully explored in an evidentiary hearing, [the Commission] would have no assurance that a decision finally reached by [the Commission] would contribute more to listener satisfaction than the result favored by station management.' " Policy Statement, 60 F.C.C.2d 858, 865 (1976), quoting Notice of Inquiry, 57 F.C.C.2d 580, 586 (1976). The same must be true of the decisions the Commission makes after reviewing listener complaints about nonentertainment programming, and I do not see why the Commission finds this result acceptable in one situation but not in the other. Much the same can be said for the majority's suggestion that the Commission should be spared the burden of "presuming to grasp, measure and weigh . . . elusive and difficult factors" such as determining the number of listeners who favor a particular change and measuring the intensity of their preferences, ante, at 601. But insofar as the Commission confronts these same "elusive and difficult factors" in reviewing nonentertainment programming, it need only apply the expertise it has acquired in dealing with these problems to review of entertainment programming.
III
49
Since I agree with the Court of Appeals that there may be situations in which the Commission is obliged to consider format changes in making the "public interest" determination mandated by the Act, it seems appropriate to comment briefly on the Commission's claim that the " 'acute practical problem[s]' inherent in format regulation render entirely speculative any benefits that such regulation might produce."31 One of the principal reasons given in the Policy Statement for rejecting entertainment format regulation is that it would be "administratively a fearful and comprehensive nightmare,"32 that would impose "enormous costs on the participants and the Commission alike."33 But at oral argument before the Court of Appeals, Commission counsel conceded that the " 'administrative nightmare' " argument was an " 'exaggeration' " which was not " 'very significant at all' " to the Commission's ultimate conclusion. 197 U.S.App.D.C., at 330, 610 F.2d, at 849. The Commission's reliance on claims that its own counsel later concedes to lack merit hardly strengthens one's belief in the rationality of its decisionmaking.
50
Although it has abandoned the "administrative nightmare" argument before this Court, the Commission nonetheless finds other "intractable" administrative problems in format regulation. For example, it insists that meaningful classification of radio broadcasts into format types is impractical, and that it is impossible to determine whether a proposed format change is in the public interest because the intensity of listener preferences cannot be measured.34 Moreover, the Commission argues that format regulation will discourage licensee innovation and experimentation with formats, and that its effect on format diversity will therefore be counterproductive.
51
None of these claims has merit. Broadcasters have operated under the format doctrine during the past 10 years, yet the Commission is unable to show that there has been no innovation and experimentation with formats during this period. Indeed, a Commission staff study on the effectiveness of market allocation of formats indicates that licensees have been aggressive in developing diverse entertainment formats under the format-doctrine regime.35 This "evidence"— a welcome contrast to the Commission's speculation—undermines the Commission's claim that format regulation will disserve the "public interest" because it will inhibit format diversity.
52
The Commission's claim that it is impossible to classify formats, is largely overcome by the Court of Appeals' suggestion that the Commission could develop "a format taxonomy which, even if imprecise at the margins, would be sustainable so long as not irrational."36 197 U.S.App.D.C., at 334, 610 F.2d, at 853. Even more telling is the staff study relied on by the Commission to show that there is broad format diversity in major radio markets, for the study used a format classification based on industry practice.37 As the Court of Appeals noted, it is somewhat ironic that the Commission had no trouble "endorsing the validity of a study largely premised on classifications it claims are impossible to make." Ibid.38 To be sure, courts do not sit to second-guess the assessments of specialized agencies like the Commission. But where, as here, the agency's position rests on speculations that are refuted by the agency's own administrative record, I am not persuaded that deference is due.39
IV
53
The Commission's Policy Statement is defective because it lacks a "safety valve" procedure that would allow the necessary flexibility in the application of the Commission's general policy on format changes to particular cases. In my judgment, the Court of Appeals' format doctrine was a permissible attempt by that court to provide the Commission with some guidance regarding the types of situations in which a re-examination of general policy might be necessary. Even if one were to conclude that the Court of Appeals described these situations too specifically, a view I do not share, I still think that the Court of Appeals correctly held that the Commission's Policy Statement must be vacated.
54
I respectfully dissent.
1
We shall refer to transfers and assignments of licenses as "transfers."
2
Title 47 U.S.C. § 309(a) provides:
"Subject to the provisions of this section, the Commission shall determine, in the case of each application filed with it to which section 308 of this title applies, whether the public interest, convenience, and necessity will be served by the granting of such application, and, if the Commission, upon examination of such application and upon consideration of such other matters as the Commission may officially notice, shall find that public interest, convenience, and necessity would be served by the granting thereof, it shall grant such application."
Title 47 U.S.C. § 310(d) provides in part:
"No construction permit or station license, or any rights thereunder shall be transferred, assigned, or disposed of in any manner, voluntarily or involuntarily, directly or indirectly, or by transfer of control of any corporation holding such permit or license, to any person except upon application to the Commission and upon finding by the Commission that the public interest, convenience, and necessity will be served thereby."
The Act requires broadcasting station licensees to apply for license renewal every three years. 47 U.S.C. § 307(d). It provides that the Commission shall grant the application for renewal if it determines that the public interest, convenience, and necessity will be served thereby. §§ 307(a), (d), 309(a).
Section 309(d)(1) of the Act provides that any party in interest may petition the Commission to deny an application for license transfer or renewal, but the petition must contain specific allegations of fact sufficient to show that granting the application would be "prima facie inconsistent" with the public interest. If the Commission determines on the basis of the application, the pleadings filed, or other matters which it may officially notice that no substantial and material questions of fact are presented, it may grant the application and deny the petition without conducting a hearing. § 309(d)(2). However, if a substantial and material question of fact is presented or if the Commission is unable to determine that granting the application would be consistent with the public interest, the Commission must conduct a hearing on the application. § 309(d)(2).
3
Citizens Committee to Save WEFM v. FCC, 165 U.S.App.D.C. 185, 506 F.2d 246 (1974) (en banc); Citizens Committee to Keep Progressive Rock v. FCC, 156 U.S.App.D.C. 16, 478 F.2d 926 (1973); Lakewood Broadcasting Service, Inc. v. FCC, 156 U.S.App.D.C. 9, 478 F.2d 919 (1973); Hartford Communications Committee v. FCC, 151 U.S.App.D.C. 354, 467 F.2d 408 (1972); Citizens Committee to Preserve the Voice of the Arts in Atlanta v. FCC, 141 U.S.App.D.C. 109, 436 F.2d 263 (1970).
4
We shall refer to the Court of Appeals' views on when the Commission must review changes in entertainment format as the "format doctrine," and we shall often refer to a change in entertainment programming by a radio broadcaster as a change in format.
5
In Citizens Committee to Save WEFM v. FCC, for example, the court directed the Commission to consider whether a "fine arts" format was a reasonable substitute for a classical music format. 165 U.S.App.D.C., at 203-204, 506 F.2d, at 264-265. The court observed that 19th-century classical music and 20th-century classical music could be classified as different formats, since "the loss of either would unquestionably lessen diversity." Id., at 204, n. 28, 506 F.2d, at 265, n. 28.
6
These criteria were summarized by the Court of Appeals in the opinion below. 197 U.S.App.D.C. 319, 323-324, 610 F.2d 838, 842-843 (1979). It was also stated that the format doctrine logically applies to renewal as well as transfer applications. The court noted that a mid-term format change would not be considered until the broadcaster applied for license renewal. Id., at 330, and n. 29, 610 F.2d, at 849, and n. 29. See also Citizens Committee to Preserve the Voice of the Arts in Atlanta v. FCC, supra, 141 U.S.App.D.C., at 118, 436 F.2d, at 272.
7
See Citizens Committee to Preserve the Voice of the Arts in Atlanta v. FCC, supra, at 113, 436 F.2d, at 267. See also 197 U.S.App.D.C., at 330, n. 31, 610 F.2d, at 849, n. 31.
8
Citizens Committee to Save WEFM v. FCC, supra, 165 U.S.App.D.C., at 207, and n. 34, 506 F.2d, at 268, and n. 34.
Although the issue before the Court of Appeals in each of the format cases was whether a hearing was required, the court warned the Commission in Citizens Committee to Keep Progressive Rock that its public-interest determination would also be subject to judicial review:
"[F]ailure to render a reasoned decision will be, as always, reversible error. No more is required, no less is accepted." 156 U.S.App.D.C., at 24, 478 F.2d, at 934.
9
Notice of Inquiry, Development of Policy re: Changes in the Entertainment Formats of Broadcast Stations, 57 F.C.C.2d 580 (1976).
10
The Commission also invited interested parties to consider the impact of the format doctrine on First Amendment values.
11
Memorandum Opinion and Order, 60 F.C.C.2d 858 (1976) (Policy Statement), reconsideration denied, 66 F.C.C.2d 78 (1977).
12
Section 303(r) of the Act, 47 U.S.C. § 303(r), provides that "the Commission from time to time, as public convenience, interest, or necessity requires, shall . . . [m]ake such rules and regulations and prescribe such restrictions and conditions, not inconsistent with law, as may be necessary to carry out the provisions of [the Act]."
13
The Commission observed that radio broadcasters naturally compete in the area of program formats, since there is virtually no other form of competition available. A staff study of program diversity in major markets supported the Commission's view that competition is effective in promoting diversity in entertainment formats. Policy Statement, supra, at 861.
The Notice of Inquiry also explained the Commission's reasons for relying on competition to provide diverse entertainment formats:
"Our traditional view has been that the station's entertainment format is a matter best left to the discretion of the licensee or applicant, since he will tend to program to meet certain preferences of the area and fill significant voids which are left by the programming of other stations. The Commission's accumulated experience indicates that . . . [f]requently, when a station changes its format, other stations in the area adjust or change their formats in an effort to secure the listenership of the discontinued format." 57 F.C.C.2d, at 583.
14
Section 3(h) of the Act provides that "a person engaged in radio broadcasting shall not . . . be deemed a common carrier." 47 U.S.C. § 153(h). See also, FCC v. Sanders Brothers Radio Station, 309 U.S. 470, 474, 60 S.Ct. 693, 697, 84 L.Ed. 869 (1940) ("[B]roadcasters are not common carriers and are not to be dealt with as such. Thus the [Communications] Act recognizes that the field of broadcasting is one of free competition") (footnote omitted).
15
The Commission discussed the problems arising from "the obligation to continue service" created by the Court of Appeals' format doctrine. The Commission apparently used this phrase to describe those cases in which it thought the Court of Appeals would hold that an application for license transfer or renewal should have been denied because the abandonment of a unique entertainment format was inconsistent with the public interest. Although the format cases only addressed whether a hearing was required, the Court of Appeals implied that in some situations the Commission would be required to deny an application because of a change in entertainment format. See Citizens Committee to Keep Progressive Rock v. FCC, 156 U.S.App.D.C., at 24, 478 F.2d, at 934.
The Commission also addressed the "constitutional dimension" of the format doctrine. It concluded that the doctrine would be likely to deter many licensees from experimenting with new forms of entertainment programming, since the licensee could be burdened with the expense of participating in a hearing before the Commission if for some reason it wished to abandon the experimental format. Thus, "[t]he existence of the obligation to continue service . . . inevitably deprives the public of the best efforts of the broadcast industry and results in an inhibition of constitutionally protected forms of communication with no off-setting justifications, either in terms of specific First Amendment or diversity-related values or in broader public interest terms." Policy Statement, supra, at 865.
16
In the Notice of Inquiry, the Commission discussed the difficult task of categorizing formats, noting that the Court of Appeals had suggested in the WEFM case that 19th-century classical music should be distinguished from 20th-century classical music. Notice of Inquiry, supra, at 583, and n. 2.
17
Policy Statement, 60 F.C.C.2d, at 862-864.
18
Id., at 863.
19
The Commission pointed out that a significant segment of the public may strongly prefer one station to another even if both stations play the same type of music. Although it would be difficult for the Commission to compare the strength of intraformat preferences to the strength of interformat preferences, market forces would naturally respond to intra-format preferences, albeit in an imperfect manner. Id., at 863-864.
20
Id., at 866, n. 8.
21
The court was of the view that the Commission's "Notice of Inquiry" revealed a substantial bias against the WEFM decision, and that the Commission had overstated the administrative problems created by the format doctrine.
22
The study was released prior to the Commission's denial of reconsideration of its Policy Statement. The court questioned whether the public had had an adequate opportunity to comment on the study but found it unnecessary to consider whether the Policy Statement should be set aside on that ground:
"Petitioners urge this defect as an independent ground for overturning the Commission. We agree that the study does raise serious questions about the overall rationality and fairness of the Commission's decision. However, because certain broader defects, of which the study is symptomatic, are fatal to the Commission's action, we need not decide whether the failure to obtain public comment on the study is itself of sufficient gravity to warrant rejection of the Policy Statement." 197 U.S.App.D.C., at 328, n. 24, 610 F.2d, at 847, n. 24.
Respondents urge the Court to set aside the Policy Statement because of this alleged procedural error if the Court determines that the Commission's views do not conflict with the Act or the First Amendment. We have considered the submissions of the parties and do not consider the action of the Commission, even if a procedural lapse, to be a sufficient ground for reopening the proceedings before the Commission.
23
The court observed, as it had in WEFM, that because broadcasters rely on advertising revenue they tend to serve persons with large discretionary incomes. 197 U.S.App.D.C., at 332, 610 F.2d, at 851. The dissenting opinion noted that the Commission had not rejected this assumption. Id., at 341, 610 F.2d, at 861.
24
The court stated that the Commission's staff study demonstrated that licensees had continued to develop diverse entertainment formats after the WEFM decision.
25
The court acknowledged that Congress had entrusted to the Commission the task of ensuring that license grants are used in the public interest. Nevertheless, the Commission's position on review of entertainment format changes "could not be sustained even when all due deference was given that construction." 197 U.S.App.D.C., at 336, n. 51, 610 F.2d, at 855, n. 51.
26
The Court of Appeals was not satisfied that the market functioned adequately in every case; nor was it persuaded that the loss of a unique format is comparable to the loss of a favorite station within a particular format.
27
Two judges dissented, arguing that the Policy Statement should have been upheld, since the Commission had made a reasonable judgment that the format doctrine was unnecessary to further the public interest. A third judge agreed with the dissenters that the majority had not accorded sufficient deference to the Commission's judgment, but concluded that the Commission's order should be vacated so that the record could be reopened to permit public comment on the staff study.
28
The Act provides in general terms that the Commission shall perform administrative functions "as public convenience, interest, or necessity requires." 47 U.S.C. § 303.
29
See 47 U.S.C. § 303(r), quoted in n. 12, supra.
30
Section 10(e) of the Administrative Procedure Act provides in part:
"The reviewing court shall—
* * * * *
"(2) hold unlawful and set aside agency action, findings, and conclusions found to be—
"(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law . . . ." 5 U.S.C. § 706(2)(A).
In FCC v. National Citizens Committee for Broadcasting, we observed that a reviewing court applying this standard " 'is not empowered to substitute its judgment for that of the agency.' " 436 U.S., at 803, 98 S.Ct., at 2116, quoting Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971).
31
FCC v. National Citizens Committee for Broadcasting, supra, 436 U.S., at 814, 98 S.Ct., at 2121, quoting FPC v. Transcontinental Gas Pipe Line Corp., 365 U.S. 1, 29, 81 S.Ct. 435, 450, 5 L.Ed.2d 377 (1961).
32
See, e. g., FCC v. Midwest Video Corp., 440 U.S. 689, 705, 99 S.Ct. 1435, 1444, 59 L.Ed.2d 692 (1979) (recognizing the "policy of the Act to preserve editorial control of programming in the licensee"); Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 120, 93 S.Ct. 2080, 2095, 36 L.Ed.2d 772 (1973) (discussing the Commission's duty to chart a workable "middle course" to preserve "essentially private broadcast journalism held only broadly accountable to public interest standards").
33
Congress rejected a proposal to allocate 25% of all radio stations to educational, religious, agricultural, and similar nonprofit associations. See 78 Cong.Rec. 8843-8846 (1934).
34
44 Stat. 1162. The Radio Act of 1927 was the predecessor to the Communications Act.
35
This bill would have required the administrative agency created by the Radio Act of 1927 to prescribe "priorities as to subject matter to be observed by each class of licensed stations." H.R. 7357, 68th Cong., 1st Sess., § 1(B) (1924).
36
Hearings on H.R. 5589 before the House Committee on the Merchant Marine and Fisheries, 69th Cong., 1st Sess., 39 (1926).
37
44 Stat. 1172-1173. See Hearings on S. 1 and S. 1754 before the Senate Committee on Interstate Commerce, 69th Cong., 1st Sess., 121 (1926); H.R.Conf.Rep.No. 1886, 69th Cong., 2d Sess., 16-19 (1927).
38
Section 326 of the Act provides:
"Nothing in this chapter shall be understood or construed to give the Commission the power of censorship over the radio communications or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by the Commission which shall interfere with the right of free speech by means of radio communication." 47 U.S.C. § 326.
In FCC v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978), the Court concluded that although this section prohibits the Commission from editing proposed broadcasts in advance, it does not preclude subsequent review of program content. Id., at 735, 737, 98 S.Ct., at 3033, 3034.
39
Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 1801, 23 L.Ed.2d 371 (1969). See also Columbia Broadcasting System, Inc. v. Democratic National Committee, supra, at 121, 93 S.Ct., at 2095.
40
See, e. g., En Banc Programming Inquiry, 44 F.C.C. 2303, 2308-2309 (1960); Bay Radio, Inc., 22 F.C.C. 1351, 1364 (1957).
41
Primer on Ascertainment of Community Problems by Broadcast Applicants, 27 F.C.C.2d 650, 679-680 (1971).
The Commission explained:
"Our view has been that the station's program format is a matter best left to the discretion of the licensee or applicant, since as a matter of public acceptance and economic necessity he will tend to program to meet the preferences of the area and fill whatever void is left by the programming of other stations." Id., at 679.
The Commission noted that this policy only applied to entertainment programming. "It does not include matters such as an increase in commercial matter or decrease in the amount of non-entertainment programming, both of which are subjects of review and concern, and have been for some time." Id., at 679, n. 15.
The Commission continues to review nonentertainment programming to some degree. In its memorandum opinion denying reconsideration of the Policy Statement, the Commission explained that it has limited its review of programming to preserve licensee discretion in this area:
"To the extent that the Commission exercises some direct control of programming, it is primarily through the fairness doctrine and political broadcasting rules pursuant to Section 315. In both cases the Commission's role is limited to directing the licensee to broadcast some additional material so as not to completely ignore the view points of others in the community. . . . These regulations are extremely narrow, the Commission's role is limited by strictly defined standards, and the licensee is left with virtually unrestricted discretion in programming most of the broadcast day. In contrast, [under the format doctrine] we would be faced with the prospect of rejecting virtually the entire broadcast schedule proposed by the private licensee . . . ." 66 F.C.C.2d, at 83.
42
Zenith Radio Corp., 40 F.C.C.2d 223, 231 (1973) (additional views of Chairman Burch).
43
Policy Statement, 60 F.C.C.2d, at 866, n. 8.
44
It is asserted that the Policy Statement violates the Act because it does not contain a "safety valve" procedure. The dissent relies primarily on National Broadcasting Co. v. United States, 319 U.S. 190, 63 S.Ct. 997, 87 L.Ed. 1344 (1943), and United States v. Storer Broadcasting Co., 351 U.S. 192, 76 S.Ct. 763, 100 L.Ed. 1081 (1956). In National Broadcasting Co. v. United States, the Court noted that license applicants had been advised by the Commission that they could call to its attention any reason why the challenged chain broadcasting rule should be modified or held inapplicable to their situations. 319 U.S., at 207, 63 S.Ct., at 1005. In United States v. Storer Broadcasting Co., the Court observed that under the Commission's regulations, an applicant who alleged "adequate reasons why the [Multiple Ownership] Rules should be waived or amended" would be granted a hearing. 351 U.S., at 205, 76 S.Ct., at 771. In each case the Court considered the validity of the challenged rules in light of the flexibility provided by the procedures. However, it did not hold that the Commission may never adopt a rule that lacks a waiver provision.
45
The Commission in the past has sought to promote "balanced" radio programming, but these efforts did not involve Commission review of changes in entertainment format. For example, in the En Banc Programming Inquiry, 44 F.C.C. 2303 (1960), relied on by the dissent, the Commission identified 14 types of programming that it considered "major elements usually necessary to meet the public interest." Id., at 2314. One of these categories was "entertainment programs." The Commission suggested only that a licensee should usually provide some entertainment programming: it did not require licensees to provide specific types of entertainment programming. Moreover, the Commission emphasized that a licensee is afforded broad discretion in determining what programs should be offered to the public:
"The ascertainment of the needed elements of the broadcast matter to be provided by a particular licensee for the audience he is obligated to serve remains primarily the function of the licensee. His honest and prudent judgments will be accorded great weight by the Commission. Indeed, any other course would tend to substitute the judgment of the Commission for that of the licensee." Ibid.
46
Respondents place particular emphasis on the role of foreign language programming in providing information to non-English-speaking citizens. However, the Policy Statement only applies to entertainment programming. It does not address the broadcaster's obligation to respond to community needs in the area of informational programming. See Tr. of Oral Arg. 81 (remarks of counsel for the Commission).
47
Cf. Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 93 S.Ct. 2080, 36 L.Ed.2d 772 (1973) (the First Amendment does not require the Commission to adopt a "fairness doctrine" with respect to paid editorial advertisements).
1
The pertinent portions of 47 U.S.C. §§ 309(a) and 310(d) are quoted in the majority opinion, ante, at 584-585, n. 2.
2
I will follow the majority, see ante, at 586, n. 4, in referring to a broadcaster's change in entertainment programming as a format change.
3
Memorandum Opinion and Order, 60 F.C.C.2d 858 (1976) (Policy Statement), reconsideration denied, 66 F.C.C.2d 78 (1977) (Denial of Reconsideration).
4
The opinion of the Court traces the development of the Court of Appeals' "format doctrine" and the Commission's "Policy Statement," see ante, at 586-593. I will not repeat that discussion here.
5
Notice of Inquiry, Development of Policy Re: Changes in the Entertainment Formats of Broadcast Stations, 57 F.C.C.2d 580, 582 (1976) (Notice of Inquiry).
6
Policy Statement, supra, at 865 (quoting Lemon v. Kurtzman, 403 U.S. 602, 619-620, 91 S.Ct. 2105, 2114, 29 L.Ed.2d 745 (1971)).
7
Denial of Reconsideration, supra, at 81.
8
Even the Court of Appeals agreed that "[t]here would no doubt be severe statutory and constitutional difficulties with any system that required intrusive governmental surveillance, dictated programming choices, forced broad access obligations, or imposed an obligation to continue in service under any and all circumstances." 197 U.S.App.D.C. 319, 331-332, 610 F.2d 838, 850-851 (1979).
9
See D. Ginsburg, Regulation of Radio Broadcasting 294 (1979) ("An argument against the desirability of 'diversity' in broadcast programming is difficult to imagine"). See generally Note, A Regulatory Approach to Diversifying Commercial Television Entertainment, 89 Yale L.J. 694 (1980).
10
Section 303(g) of the Act, 47 U.S.C. § 303(g), directs the Commission to "encourage the larger and more effective use of radio in the public interest."
11
The Commission is authorized to promulgate "such rules and regulations . . . not inconsistent with law, as may be necessary to carry out the provisions of [the Act]." 47 U.S.C. § 303(r).
12
The majority argues, ante, at 601, n. 44, that although the Court considered the presence of a "safety valve" procedure in upholding the rules challenged in National Broadcasting Co. v. United States, and United States v. Storer Broadcasting Co., the Court "did not hold that the Commission may never adopt a rule that lacks a waiver provision." Since this general question was not before the Court in those cases, it is hardly surprising that it did not render an advisory opinion to this effect. What is instructive, however, is the majority's inability to explain why a waiver provision was necessary in those cases, but is not required in the instant situation. As the cases cited in text make clear, this Court and the lower federal courts have insisted on a "safety valve" feature in upholding general rules promulgated by a variety of agencies. I believe it is incumbent on those who would depart from this practice to explain their reasoning.
13
Zenith Radio Corp., 40 F.C.C.2d 223, 231 (1973) (additional views of Chairman Burch) (joined by a majority of the Commissioners).
14
Confronted as it was by the Commission's resistance to its format doctrine, it is easy to understand why the Court of Appeals felt compelled to undertake this task.
15
Policy Statement, 60 F.C.C.2d, at 863.
16
Public Service Responsibility of Broadcast Licensees (1946).
17
Id., at 12.
18
Id., at 15.
19
En Banc Programming Inquiry, 44 F.C.C. 2303 (1960).
20
Id., at 2314.
21
Id., at 2312.
22
Children's Television Report and Policy Statement, 50 F.C.C.2d 1, 6 (1974).
23
Channel 20, Inc., 70 F.C.C.2d 1770 (1979).
24
Community Television of Southern California, 72 F.C.C.2d 349 (1979).
25
Central California Communications Corp., 70 F.C.C.2d 1947 (1979).
26
Mississippi Authority for Educational TV, 71 F.C.C.2d 1296 (1979); Alabama Educational Television Comm'n, 33 F.C.C.2d 495 (1971), renewal denied, 50 F.C.C.2d 461 (1975).
27
Educational Broadcasting Corp., 70 F.C.C.2d 2204 (1979).
As the majority notes, ante, at 602-603, the Commission recently voted to reduce its role in regulating several aspects of commercial radio broadcasting, including regulation of nonentertainment programming. Thus, the Commission has announced its intention of eliminating its current guideline on the amounts of nonentertainment programming that radio stations should air. And the Commission has indicated that petitions to deny license renewals based on only the quantity of a licensee's nonentertainment programming will no longer be sufficient to support a challenge. For example, a petitioner would have to show that a licensee is doing little or no programming responsive to community issues in order to successfully challenge renewal of the license. Nonetheless, the Commission reiterated that nonentertainment programming is still a relevant issue for petitions to deny, that licensees have an obligation to offer nonentertainment programming addressing issues facing the community, and that the Commission will continue to inquire into the reasonableness of licensee programming decisions. See Deregulation of Radio, 46 Fed.Reg. 13888, 13890-13897 (1981) (to be codified at 47 CFR Parts 0 and 73).
28
Denial of Reconsideration, 66 F.C.C.2d, at 83 (emphasis in original).
29
Ibid.
30
Ibid.
31
Brief for Federal Communications Commission and United States 35.
32
Policy Statement, 60 F.C.C.2d, at 865.
33
Id., at 864.
34
The Commission also insists that any findings about the financial viability of a particular format would be entirely speculative.
35
See Policy Statement, supra, at 873-881.
36
There have been a number of comments and suggestions about how the Commission might best accomplish this task. See e. g., 57 F.C.C.2d, at 587-589 (concurring statement of Commissioner Hooks); D. Ginsburg, supra n. 9, at 316; Note, Judicial Review of FCC Program Diversity Regulation, 75 Colum.L.Rev. 401, 436-437 (1975).
The Court of Appeals suggested that the Commission could consider an alternative approach of "dispensing altogether with the need for classifying formats by simply taking the existence of significant and bona fide listener protest as sufficient evidence that the station's endangered programming has certain unique features for which there are no ready substitutes." 197 U.S.App.D.C., at 334, n. 47, 610 F.2d, at 853, n. 47. The court indicated that "this approach would focus attention on the essentials of the format doctrine, namely, that when a significant sector of the populace is aggrieved by a planned programming change, this fact raises a legitimate question as to whether the proposed change is in the public interest." Id., at 334-335, n. 47, 610 F.2d, at 853-854, n. 47.
37
See Policy Statement, supra, at 875-880.
38
Nor do I find merit in the Commission's claim that there are serious First Amendment problems with format regulation. In the first place, I see no reason to find constitutional defect in limited review of entertainment formats when no such defect arises with review of nonentertainment programming. In Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 395, 89 S.Ct. 1794, 1809, 23 L.Ed.2d 371 (1969), we held that the Commission does not transgress the First Amendment "in interesting itself in general program format and the kinds of programs broadcast by licensees." Indeed, First Amendment principles, if anything, would support format review as requested by listeners, for as we indicated in Red Lion "[i]t is the [First Amendment] right of the viewers and listeners, not the right of the broadcasters, which is paramount." Id., at 390, 89 S.Ct., at 1806.
39
All this suggests that the "practical difficulties" the Commission has identified are not intractable, and that these problems could be solved if the Commission channelled as much energy into devising workable standards as it has devoted to mischaracterizing the Court of Appeals' format doctrine.
| 78
|
450 U.S. 544
101 S.Ct. 1245
67 L.Ed.2d 493
State of MONTANA et al., Petitioners,v.UNITED STATES et al.
No. 79-1128.
Argued Dec. 3, 1980.
Decided March 24, 1981.
Rehearing Denied June 1, 1981.
See 452 U.S. 911, 101 S.Ct. 3042.
Syllabus
By a tribal regulation, the Crow Tribe of Montana sought to prohibit hunting and fishing within its reservation by anyone who is not a member of the Tribe. Relying on its purported ownership of the bed of the Big Horn River, on treaties which created its reservation, and on its inherent power as a sovereign, the Tribe claimed authority to prohibit hunting and fishing by nonmembers of the Tribe even on lands within the reservation owned in fee simple by non-Indians. Montana, however, continued to assert its authority to regulate hunting and fishing by non-Indians within the reservation. The First Treaty of Fort Laramie of 1851, in which the signatory tribes acknowledged various designated lands as their respective territories, specified that, by making the treaty, the tribes did not "surrender the privilege of hunting, fishing, or passing over" any of the lands in dispute. In 1868, the Second Treaty of Fort Laramie established the Crow Reservation, including land through which the Big Horn River flows, and provided that the reservation "shall be . . . set apart for the absolute and undisturbed use and occupation" of the Tribe, and that no non-Indians except Government agents "shall ever be permitted to pass over, settle upon, or reside in" the reservation. To resolve the conflict between the Tribe and the State, the United States, proceeding in its own right and as fiduciary for the Tribe, filed the present action, seeking a declaratory judgment quieting title to the riverbed in the United States as trustee for the Tribe and establishing that the Tribe and the United States have sole authority to regulate hunting and fishing within the reservation, and an injunction requiring Montana to secure the Tribe's permission before issuing hunting or fishing licenses for use within the reservation. The District Court denied relief, but the Court of Appeals reversed. It held that the bed and banks of the river were held by the United States in trust for the Tribe; that the Tribe could regulate hunting and fishing within the reservation by nonmembers, except for hunting and fishing on fee lands by resident nonmember owners of those lands; and that nonmembers permitted by the Tribe to hunt or fish within the reservation remained subject to Montana's fish and game laws.
Held :
1. Title to the bed of the Big Horn River passed to Montana upon its admission into the Union, the United States not having conveyed beneficial ownership of the riverbed to the Crow Tribe by the treaties of 1851 or 1868. As a general principle, the Federal Government holds lands under navigable waters in trust for future States, to be granted to such States when they enter the Union, and there is a strong presumption against conveyance of such lands by the United States. The 1851 treaty failed to overcome this presumption, since it did not by its terms formally convey any land to the Indians at all. And whatever property rights the 1868 treaty created, its language is not strong enough to overcome the presumption against the sovereign's conveyance of the riverbed. Cf. United States v. Holt State Bank, 270 U.S. 49, 46 S.Ct. 197, 70 L.Ed. 465. Moreover, the situation of the Crow Indians at the time of the treaties presented no "public exigency" which would have required Congress to depart from its policy of reserving ownership of beds under navigable waters for the future States. Pp. 550-557.
2. Although the Tribe may prohibit or regulate hunting or fishing by nonmembers on land belonging to the Tribe or held by the United States in trust for the Tribe, it has no power to regulate non-Indian fishing and hunting on reservation land owned in fee by nonmembers of the Tribe. Pp. 557-567.
(a) The 1851 treaty nowhere suggested that Congress intended to grant such power to the Tribe. And while the 1868 treaty obligated the United States to prohibit most non-Indians from residing on or passing through reservation lands used and occupied by the Tribe, thereby arguably conferring upon the Tribe authority to control fishing and hunting on those lands, that authority can only extend to land on which the Tribe exercises "absolute and undisturbed use and occupation" and cannot apply to subsequently alienated lands held in fee by non-Indians. Cf. Puyallup Tribe v. Washington Game Dept., 433 U.S. 165, 97 S.Ct. 2616, 53 L.Ed.2d 667. Nor does the federal trespass statute, 18 U.S.C. § 1165, which prohibits trespassing to hunt or fish, "augment" the Tribe's regulatory powers over non-Indian lands. That statute is limited to lands owned by Indians, held in trust by the United States for Indians, or reserved for use by Indians, and Congress deliberately excluded fee-patented lands from its scope. Pp. 557-563.
(b) The Tribe's "inherent sovereignty" does not support its regulation of non-Indian hunting and fishing on non-Indian lands within the reservation. Through their original incorporation into the United States, as well as through specific treaties and statutes, the Indian tribes have lost many of the attributes of sovereignty, particularly as to the relations between a tribe and nonmembers of the tribe. United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303. Exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express congressional delegation. Here, regulation of hunting and fishing by nonmembers of the Tribe on lands no longer owned by the Tribe bears no clear relationship to tribal self-government or internal relations. Non-Indian hunters and fishermen on non-Indian fee land do not enter any agreements or dealings with the Tribe so as to subject themselves to tribal civil jurisdiction. And nothing suggests that such non-Indian hunting and fishing so threatened the Tribe's political or economic security as to justify tribal regulation. Pp. 563-567.
9 Cir., 604 F.2d 1162, reversed and remanded.
Urban L. Roth, Butte, Mont., for petitioners.
Louis F. Claiborne, Washington, D. C., for respondent U. S.
Thomas J. Lynaugh, Billings, Mont., for respondent Crow Tribe of Indians.
Justice STEWART delivered the opinion of the Court.
1
This case concerns the sources and scope of the power of an Indian tribe to regulate hunting and fishing by non-Indians on lands within its reservation owned in fee simple by non-Indians. Relying on its purported ownership of the bed of the Big Horn River, on the treaties which created its reservation and on its inherent power as a sovereign, the Crow Tribe of Montana claims the authority to prohibit all hunting and fishing by nonmembers of the Tribe on non-Indian property within reservation boundaries. We granted certiorari, 445 U.S. 960, 100 S.Ct. 1645, 64 L.Ed.2d 234 to review a decision of the United States Court of Appeals for the Ninth Circuit that substantially upheld this claim.
2
* The Crow Indians originated in Canada, but some three centuries ago they migrated to what is now southern Montana. In the 19th century, warfare between the Crows and several other tribes led the tribes and the United States to sign the First Treaty of Fort Laramie of 1851, in which the signatory tribes acknowledged various designated lands as their respective territories. See 11 Stat. 749 and 2 C. Kappler, Indian Affairs: Laws and Treaties 594 (1904) (hereinafter Kappler). The treaty identified approximately 38.5 million acres as Crow territory and, in Article 5, specified that, by making the treaty, the tribes did not "surrender the privilege of hunting, fishing, or passing over" any of the lands in dispute. In 1868, the Second Treaty of Fort Laramie established a Crow Reservation of roughly 8 million acres, including land through which the Big Horn River flows. 15 Stat. 649. By Article II of the treaty, the United States agreed that the reservation "shall be . . . set apart for the absolute and undisturbed use and occupation" of the Crow Tribe, and that no non-Indians except agents of the Government "shall ever be permitted to pass over, settle upon, or reside in" the reservation.
3
Several subsequent Acts of Congress reduced the reservation to slightly fewer than 2.3 million acres. See 22 Stat. 42 (1882); § 31, 26 Stat. 1039-1040 (1891); ch. 1624, 33 Stat. 352 (1904); ch. 890, 50 Stat. 884 (1937). In addition, the General Allotment Act of 1887, ch. 119, 24 Stat. 388, and the Crow Allotment Act of 1920, 41 Stat. 751, authorized the issuance of patents in fee to individual Indian allottees within the reservation. Under these Acts, an allottee could alienate his land to a non-Indian after holding it for 25 years. Today, roughly 52 percent of the reservation is allotted to members of the Tribe and held by the United States in trust for them, 17 percent is held in trust for the Tribe itself, and approximately 28 percent is held in fee by non-Indians. The State of Montana owns in fee simple 2 percent of the reservation, the United States less than 1 percent.
4
Since the 1920's, the State of Montana has stocked the waters of the reservation with fish, and the construction of a dam by the United States made trout fishing in the Big Horn River possible. The reservation also contains game, some of it stocked by the State. Since the 1950's, the Crow Tribal Council has passed several resolutions respecting hunting and fishing on the reservation, including Resolution No. 74-05, the occasion for this lawsuit. That resolution prohibits hunting and fishing within the reservation by anyone who is not a member of the Tribe. The State of Montana, however, has continued to assert its authority to regulate hunting and fishing by non-Indians within the reservation.
5
On October 9, 1975, proceeding in its own right and as fiduciary for the Tribe, the United States endeavored to resolve the conflict between the Tribe and the State by filing the present lawsuit. The plaintiff sought (1) a declaratory judgment quieting title to the bed of the Big Horn River in the United States as trustee for the Tribe, (2) a declaratory judgment establishing that the Tribe and the United States have sole authority to regulate hunting and fishing within the reservation, and (3) an injunction requiring Montana to secure the permission of the Tribe before issuing hunting or fishing licenses for use within the reservation.
6
The District Court denied the relief sought. 457 F.Supp. 599. In determining the ownership of the river, the court invoked the presumption that the United States does not intend to divest itself of its sovereign rights in navigable waters and reasoned that here, as in United States v. Holt State Bank, 270 U.S. 49, 46 S.Ct. 197, 70 L.Ed. 465, the language and circumstances of the relevant treaties were insufficient to rebut the presumption. The court thus concluded that the bed and banks of the river had remained in the ownership of the United States until they passed to Montana on its admission to the Union. As to the dispute over the regulation of hunting and fishing the court found that "[i]mplicit in the Supreme Court's decision in Oliphant [v. Suquamish Indian Tribe, 435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209] is the recognition that Indian tribes do not have the power, nor do they have the authority to regulate non-Indians unless so granted by an act of Congress." 457 F.Supp., at 609. Because no treaty or Act of Congress gave the Tribe authority to regulate hunting or fishing by non-Indians, the court held that the Tribe could not exercise such authority except by granting or withholding authority to trespass on tribal or Indian land. All other authority to regulate non-Indian hunting and fishing resided concurrently in the State of Montana and, under 18 U.S.C. § 1165 (which makes it a federal offense to trespass on Indian land to hunt or fish without permission), the United States.
7
The Court of Appeals reversed the judgment of the District Court. 604 F.2d 1162. Relying on its opinion in United States v. Finch, 548 F.2d 822, vacated on other grounds, 433 U.S. 676, 97 S.Ct. 2909, 53 L.Ed.2d 1048, the appellate court held that, pursuant to the treaty of 1868, the bed and banks of the river were held by the United States in trust for the Tribe. Relying on the treaties of 1851 and 1868, the court held that the Tribe could regulate hunting and fishing within the reservation by nonmembers, although the court noted that the Tribe could not impose criminal sanctions on those nonmembers. The court also held, however, that the two Allotment Acts implicitly deprived the Tribe of the authority to prohibit hunting and fishing on fee lands by resident non-member owners of those lands. Finally, the court held that non-members permitted by the Tribe to hunt or fish within the reservation remained subject to Montana's fish and game laws.
II
8
The respondents seek to establish a substantial part of their claim of power to control hunting and fishing on the reservation by asking us to recognize their title to the bed of the Big Horn River.1 The question is whether the United States conveyed beneficial ownership of the riverbed to the Crow Tribe by the treaties of 1851 or 1868, and therefore continues to hold the land in trust for the use and benefit of the Tribe, or whether the United States retained ownership of the riverbed as public land which then passed to the State of Montana upon its admission to the Union. Choctaw Nation v. Oklahoma, 397 U.S. 620, 627-628, 90 S.Ct. 1328, 1332-1333, 25 L.Ed.2d 615.
9
Though the owners of land riparian to nonnavigable streams may own the adjacent riverbed, conveyance by the United States of land riparian to a navigable river carries no interest in the riverbed. Packer v. Bird, 137 U.S. 661, 672, 11 S.Ct. 210, 212, 34 L.Ed. 819; Railroad Co. v. Schurmeir, 7 Wall. 272, 289, 19 L.Ed. 74; 33 U.S.C. § 10; 43 U.S.C. § 931. Rather, the ownership of land under navigable waters is an incident of sovereignty. Martin v. Waddell, 16 Pet. 367, 409-411, 10 L.Ed. 997. As a general principle, the Federal Government holds such lands in trust for future States, to be granted to such States when they enter the Union and assume sovereignty on an "equal footing" with the established States. Pollard's Lessee v. Hagan, 3 How. 212, 222-223, 229, 11 L.Ed. 565. After a State enters the Union, title to the land is governed by state law. The State's power over the beds of navigable waters remains subject to only one limitation: the paramount power of the United States to ensure that such waters remain free to interstate and foreign commerce. United States v. Oregon, 295 U.S. 1, 14, 55 S.Ct. 610, 615, 79 L.Ed. 1267. It is now established, however, that Congress may sometimes convey lands below the high-water mark of a navigable water,
10
"[and so defeat the title of a new State,] in order to perform international obligations, or to effect the improvement of such lands for the promotion and convenience of commerce with foreign nations and among the several States, or to carry out other public purposes appropriate to the objects for which the United States hold the Territory." Shively v. Bowlby, 152 U.S. 1, 48, 14 S.Ct. 548, 566, 38 L.Ed. 331.
11
But because control over the property underlying navigable waters is so strongly identified with the sovereign power of government, United States v. Oregon, supra, at 14, 55 S.Ct., at 615, it will not be held that the United States has conveyed such land except because of "some international duty or public exigency." United States v. Holt State Bank, 270 U.S., at 55, 46 S.Ct., at 199. See also Shively v. Bowlby, supra, at 48, 14 S.Ct., at 566. A court deciding a question of title to the bed of a navigable water must, therefore, begin with a strong presumption against conveyance by the United States, United States v. Oregon, supra, at 14, 55 S.Ct., at 615, and must not infer such a conveyance "unless the intention was definitely declared or otherwise made plain," United States v. Holt State Bank, supra, 270 U.S., at 55, 46 S.Ct., at 199, or was rendered "in clear and especial words," Martin v. Waddell, supra, at 411, or "unless the claim confirmed in terms embraces the land under the waters of the stream," Packer v. Bird, supra, at 672, 11 S.Ct., at 212.2
12
In United States v. Holt State Bank, supra, this Court applied these principles to reject an Indian Tribe's claim of title to the bed of a navigable lake. The lake lay wholly within the boundaries of the Red Lake Indian Reservation, which had been created by treaties entered into before Minnesota joined the Union. In these treaties the United States promised to "set apart and withhold from sale, for the use of" the Chippewas, a large tract of land, Treaty of Sept. 30, 1854, 10 Stat. 1109, and to convey "a sufficient quantity of land for the permanent homes" of the Indians, Treaty of Feb. 22, 1855, 10 Stat. 1165. See Minnesota v. Hitchcock, 185 U.S. 373, 389, 22 S.Ct. 650, 656, 46 L.Ed. 954.3 The Court concluded that there was nothing in the treaties "which even approaches a grant of rights in lands underlying navigable waters; nor anything evincing a purpose to depart from the established policy . . . of treating such lands as held for the benefit of the future State." United States v. Holt State Bank, 270 U.S., at 58-59, 46 S.Ct., at 200. Rather, "[t]he effect of what was done was to reserve in a general way for the continued occupation of the Indians what remained of their aboriginal territory." Id., at 58, 46 S.Ct., at 200.
13
The Crow treaties in this case, like the Chippewa treaties in Holt State Bank, fail to overcome the established presumption that the beds of navigable waters remain in trust for future States and pass to the new States when they assume sovereignty. The 1851 treaty did not by its terms formally convey any land to the Indians at all, but instead chiefly represented a covenant among several tribes which recognized specific boundaries for their respective territories. Treaty of Fort Laramie, 1851, Art. 5, 2 Kappler 594-595. It referred to hunting and fishing only insofar as it said that the Crow Indians "do not surrender the privilege of hunting, fishing, or passing over any of the tracts of country heretofore described," a statement that had no bearing on ownership of the riverbed. By contrast, the 1868 treaty did expressly convey land to the Crow Tribe. Article II of the treaty described the reservation land in detail4 and stated that such land would be "set apart for the absolute and undisturbed use and occupation of the Indians herein named. . . ." Second Treaty of Fort Laramie, May 7, 1868, Art. II, 15 Stat. 650. The treaty then stated:
14
"[T]he United States now solemnly agrees that no persons, except those herein designated and authorized to do so, and except such officers, agents, and employes of the Government as may be authorized to enter upon Indian reservations in discharge of duties enjoined by law, shall ever be permitted to pass over, settle upon, or reside in the territory described in this article for the use of said Indians. . . ." Ibid.
15
Whatever property rights the language of the 1868 treaty created, however, its language is not strong enough to overcome the presumption against the sovereign's conveyance of the riverbed. The treaty in no way expressly referred to the riverbed, Packer v. Bird, 137 U.S., at 672, 11 S.Ct., at 212, nor was an intention to convey the riverbed expressed in "clear and especial words," Martin v. Waddell, 16 Pet., at 411, or "definitely declared or otherwise made very plain," United States v. Holt State Bank, 270 U.S., at 55, 46 S.Ct., at 199. Rather, as in Holt, "[t]he effect of what was done was to reserve in a general way for the continued occupation of the Indians what remained of their aboriginal territory." Id., at 58, 46 S.Ct., at 200.
16
Though Article 2 gave the Crow Indians the sole right to use and occupy the reserved land, and, implicitly, the power to exclude others from it, the respondents' reliance on that provision simply begs the question of the precise extent of the conveyed lands to which this exclusivity attaches. The mere fact that the bed of a navigable water lies within the boundaries described in the treaty does not make the riverbed part of the conveyed land, especially when there is no express reference to the riverbed that might overcome the presumption against its conveyance. In the Court of Appeals' Finch decision, on which recognition of the Crow Tribe's title to the riverbed rested in this case, that court construed the language of exclusivity in the 1868 treaty as granting to the Indians all the lands, including the riverbed, within the described boundaries. United States v. Finch, 548 F.2d, at 829. Such a construction, however, cannot survive examination. As the Court of Appeals recognized, ibid., and as the respondents concede, the United States retains a navigational easement in the navigable waters lying within the described boundaries for the benefit of the public, regardless of who owns the riverbed. Therefore, such phrases in the 1868 treaty as "absolute and undisturbed use and occupation" and "no persons, except those herein designated . . . shall ever be permitted," whatever they seem to mean literally, do not give the Indians the exclusive right to occupy all the territory within the described boundaries. Thus, even if exclusivity were the same as ownership, the treaty language establishing this "right of exclusivity" could not have the meaning that the Court of Appeals ascribed to it.5
17
Moreover, even though the establishment of an Indian reservation can be an "appropriate public purpose" within the meaning of Shively v. Bowlby, 152 U.S., at 48, 14 S.Ct., at 566, justifying a congressional conveyance of a riverbed, see, e. g., Alaska Pacific Fisheries v. United States, 248 U.S. 78, 85, 39 S.Ct. 40, 63 L.Ed. 138, the situation of the Crow Indians at the time of the treaties presented no "public exigency" which would have required Congress to depart from its policy of reserving ownership of beds under navigable waters for the future States. See Shively v. Bowlby, supra, at 48, 14 S.Ct., at 566. As the record in this case shows, at the time of the treaty the Crows were a nomadic tribe dependent chiefly on buffalo, and fishing was not important to their diet or way of life. 1 App. 74. Cf., Alaska Pacific Fisheries v. United States, supra, at 88, 39 S.Ct., at 41; Skokomish Indian Tribe v. France, 320 F.2d 205, 212 (CA9).
18
For these reasons, we conclude that title to the bed of the Big Horn River passed to the State of Montana upon its admission into the Union, and that the Court of Appeals was in error in holding otherwise.
III
19
Though the parties in this case have raised broad questions about the power of the Tribe to regulate hunting and fishing by non-Indians on the reservation, the regulatory issue before us is a narrow one. The Court of Appeals held that the Tribe may prohibit nonmembers from hunting or fishing on land belonging to the Tribe or held by the United States in trust for the Tribe, 604 F.2d, at 1165-1166, and with this holding we can readily agree. We also agree with the Court of Appeals that if the Tribe permits nonmembers to fish or hunt on such lands, it may condition their entry by charging a fee or establishing bag and creel limits. Ibid. What remains is the question of the power of the Tribe to regulate non-Indian fishing and hunting on reservation land owned in fee by nonmembers of the Tribe. The Court of Appeals held that, with respect to fee-patented lands, the Tribe may regulate, but may not prohibit, hunting and fishing by non-member resident owners or by those, such as tenants or employees, whose occupancy is authorized by the owners. Id., at 1169. The court further held that the Tribe may totally prohibit hunting and fishing on lands within the reservation owned by non-Indians who do not occupy that land. Ibid.
20
The Court of Appeals found two sources for this tribal regulatory power: the Crow treaties, "augmented" by 18 U.S.C. § 1165, and "inherent" Indian sovereignty. We believe that neither source supports the court's conclusion.
A.
21
The purposes of the 1851 treaty were to assure safe passage for settlers across the lands of various Indian Tribes; to compensate the Tribes for the loss of buffalo, other game animals, timber, and forage; to delineate tribal boundaries; to promote intertribal peace; and to establish a way of iden tifying Indians who committed depredations against non-Indians. As noted earlier, the treaty did not even create a reservation, although it did designate tribal lands. See Crow Tribe v. United States, 284 F.2d 361, 364, 366, 368, 151 Ct.Cl. 281, 285-286, 289, 292-293. Only Article 5 of that Treaty referred to hunting and fishing, and it merely provided that the eight signatory tribes "do not surrender the privilege of hunting, fishing, or passing over any of the tracts of country heretofore described." 2 Kappler 595.6 The treaty nowhere suggested that Congress intended to grant authority to the Crow Tribe to regulate hunting and fishing by nonmembers on nonmember lands. Indeed, the Court of Appeals acknowledged that after the treaty was signed non-Indians, as well as members of other Indian tribes, undoubtedly hunted and fished within the treaty-designated territory of the Crows. 604 F.2d, at 1167.
22
The 1868 Fort Laramie Treaty, 15 Stat. 649, reduced the size of the Crow territory designated by the 1851 treaty. Article II of the treaty established a reservation for the Crow Tribe, and provided that it be "set apart for the absolute and undisturbed use and occupation of the Indians herein named, and for such other friendly tribes or individual Indians as from time to time they may be willing, with the consent of the United States, to admit amongst them . . .," (emphasis added) and that "the United States now solemnly agrees that no persons, except those herein designated and authorized so to do . . . shall ever be permitted to pass over, settle upon, or reside in the territory described in this article for the use of said Indians. . . ." The treaty, therefore, obligated the United States to prohibit most non-Indians from residing on or passing through reservation lands used and occupied by the Tribe, and, thereby, arguably conferred upon the Tribe the authority to control fishing and hunting on those lands.7 But that authority could only extend to land on which the Tribe exercises "absolute and undisturbed use and occupation." And it is clear that the quantity of such land was substantially reduced by the allotment and alienation of tribal lands as a result of the passage of the General Allotment Act of 1887, 24 Stat. 388, as amended, 25 U.S.C. § 331 et seq., and the Crow Allotment Act of 1920, 41 Stat. 751.8 If the 1868 treaty created tribal power to restrict or prohibit non-Indian hunting and fishing on the reservation, that power cannot apply to lands held in fee by non-Indians.9
23
In Puyallup Tribe v. Washington Game Dept., 433 U.S. 165, 97 S.Ct. 2616, 53 L.Ed.2d 667 (Puyallup III ), the relevant treaty included language virtually identical to that in the 1868 Treaty of Fort Laramie. The Puyallup Reservation was to be "set apart, and, so far as necessary, surveyed and marked out for their exclusive use . . . [and no] white man [was to] be permitted to reside upon the same without permission of the tribe. . . ." Seeid., at 174, 97 S.Ct., at 2622. The Puyallup Tribe argued that those words amounted to a grant of authority to fish free of state interference. But this Court rejected that argument, finding, in part, that it "clashe[d] with the subsequent history of the reservation . . .," ibid., notably two Acts of Congress under which the Puyallups alienated, in fee simple, the great majority of the lands in the reservation, including all the land abutting the Puyallup River. Thus, "[n]either the Tribe nor its members continue to hold Puyallup River fishing grounds for their 'exclusive use.' " Ibid. Puyallup III indicates, therefore, that treaty rights with respect to reservation lands must be read in light of the subsequent alienation of those lands. Accordingly, the language of the 1868 treaty provides no support for tribal authority to regulate hunting and fishing on land owned by non-Indians.
24
The Court of Appeals also held that the federal trespass statute, 18 U.S.C. § 1165, somehow "augmented" the Tribe's regulatory powers over non-Indian land. 604 F.2d, at 1167. If anything, however, that statute suggests the absence of such authority, since Congress deliberately excluded fee-patented lands from the statute's scope. The statute provides:
25
"Whoever, without lawful authority or permission, willfully and knowingly goes upon any land that belongs to any Indian or Indian tribe, band, or group and either are held by the United States in trust or are subject to a restriction against alienation imposed by the United States, or upon any lands of the United States that are reserved for Indian use, for the purpose of hunting, trapping, or fishing thereon, or for the removal of game, peltries, or fish therefrom, shall be fined . . . ."
26
The statute is thus limited to lands owned by Indians, held in trust by the United States for Indians, or reserved for use by Indians.10 If Congress had wished to extend tribal jurisdiction to lands owned by non-Indians, it could easily have done so by incorporating in § 1165 the definition of "Indian country" in 18 U.S.C. § 1151: "all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and including rights-of-way running through the reservation." Indeed, a Subcommittee of the House Committee on the Judiciary proposed that this be done. But the Department of the Interior recommended against doing so in a letter dated May 23, 1958. The Department pointed out that a previous congressional Report, H.R.Rep.No.2593, 85th Cong., 2d Sess. (1958),11 had made clear that the bill contained no implication that it would apply to land other than that held or controlled by Indians or the United States.12 The Committee on the Judiciary then adopted the present language, which does not reach fee-patented lands within the boundaries of an Indian reservation.
B
27
Beyond relying on the Crow treaties and 18 U.S.C. § 1165 as source for the Tribe's power to regulate non-Indian hunting and fishing on non-Indian lands within the reservation, the Court of Appeals also identified that power as an incident of the inherent sovereignty of the Tribe over the entire Crow Reservation. 604 F.2d, at 1170. But "inherent sovereignty" is not so broad as to support the application of Resolution No. 74-05 to non-Indian lands.
28
This Court most recently reviewed the principles of inherent sovereignty in United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303. In that case, noting that Indian tribes are "unique aggregations possessing attributes of sovereignty over both their members and their territory," id., at 323, 98 S.Ct., at 1086, the Court upheld the power of a tribe to punish tribal members who violate tribal criminal laws. But the Court was careful to note that, through their original incorporation into the United States as well as through specific treaties and statutes, the Indian tribes have lost many of the attributes of sovereignty. Id., at 326, 98 S.Ct., at 1087. The Court distinguished between those inherent powers retained by the tribes and those divested:
29
"The areas in which such implicit divestiture of sovereignty has been held to have occurred are those involving the relations between an Indian tribe and nonmembers of the tribe . . . .
30
These limitations rest on the fact that the dependent status of Indian tribes within our territorial jurisdiction is necessarily inconsistent with their freedom independently to determine their external relations. But the powers of self-government, including the power to prescribe and enforce internal criminal laws, are of a different type. They involve only the relations among members of a tribe. Thus, they are not such powers as would necessarily be lost by virtue of a tribe's dependent status." Ibid. (Emphasis added.)
31
Thus, in addition to the power to punish tribal offenders, the Indian tribes retain their inherent power to determine tribal membership, to regulate domestic relations among members, and to prescribe rules of inheritance for members. Id., at 322, n. 18, 98 S.Ct., at 1085, n. 18. But exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express congressional delegation. Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148, 93 S.Ct. 1267, 1270, 36 L.Ed.2d 114; Williams v. Lee, 358 U.S. 217, 219-220, 79 S.Ct. 269, 270, 3 L.Ed.2d 251; United States v. Kagama, 118 U.S. 375, 381-382, 6 S.Ct. 1109, 1112-1113, 30 L.Ed. 228; see McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 171, 93 S.Ct. 1257, 1261, 36 L.Ed.2d 129. Since regulation of hunting and fishing by nonmembers of a tribe on lands no longer owned by the tribe bears no clear relationship to tribal self-government or internal relations,13 the general principles of retained inherent sovereignty did not authorize the Crow Tribe to adopt Resolution No. 74-05.
32
The Court recently applied these general principles in Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209, rejecting a tribal claim of inherent sovereign authority to exercise criminal jurisdiction over non-Indians. Stressing that Indian tribes cannot exercise power inconsistent with their diminished status as sovereigns, the Court quoted Justice Johnson's words in his concurrence in Fletcher v. Peck, 6 Cranch 87, 147, 3 L.Ed. 162—the first Indian case to reach this Court—that the Indian tribes have lost any "right of governing every person within their limits except themselves." 435 U.S., at 209, 98 S.Ct., at 1021. Though Oliphant only determined inherent tribal authority in criminal matters,14 the principles on which it relied support the general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe. To be sure, Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians on their reservations, even on non-Indian fee lands. A tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements. Williams v. Lee, supra, at 223, 79 S.Ct., at 272; Morris v. Hitchcock, 194 U.S. 384, 24 S.Ct. 712, 48 L.Ed. 1030; Buster v. Wright, 135 F. 947, 950 (CA8); see Washington v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134, 152-154, 100 S.Ct. 2069, 2080-2082, 65 L.Ed.2d 10. A tribe may also retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe. See Fisher v. District Court, 424 U.S. 382, 386, 96 S.Ct. 943, 946, 47 L.Ed.2d 106; Williams v. Lee, supra, at 220, 79 S.Ct., at 270; Montana Catholic Missions v. Missoula County, 200 U.S. 118, 128-129, 26 S.Ct. 197, 200-201, 50 L.Ed. 398; Thomas v. Gay, 169 U.S. 264, 273, 18 S.Ct. 340, 343, 42 L.Ed. 740.15
33
No such circumstances, however, are involved in this case. Non-Indian hunters and fishermen on non-Indian fee land do not enter any agreements or dealings with the Crow Tribe so as to subject themselves to tribal civil jurisdiction. And nothing in this case suggests that such non-Indian hunting and fishing so threaten the Tribe's political or economic security as to justify tribal regulation. The complaint in the District Court did not allege that non-Indian hunting and fishing on fee lands imperil the subsistence or welfare of the Tribe.16 Furthermore, the District Court made express findings, left unaltered by the Court of Appeals, that the Crow Tribe has traditionally accommodated itself to the State's "near exclusive" regulation of hunting and fishing on fee lands within the reservation. 457 F.Supp., at 609-610. And the District Court found that Montana's statutory and regulatory scheme does not prevent the Crow Tribe from limiting or forbidding non-Indian hunting and fishing on lands still owned by or held in trust for the Tribe or its members. Id., at 609.
IV
34
For the reasons stated in this opinion, the judgment of the Court of Appeals is reversed, and the case is remanded to that court for further proceedings.
35
It is so ordered.
36
Justice STEVENS, concurring.
37
In its opinion in Choctaw Nation v. Oklahoma, 397 U.S. 620, 90 S.Ct. 1328, 25 L.Ed.2d 615, the Court repeatedly pointed out that ambiguities in the governing treaties should be resolved in favor of the Indian tribes.1 That emphasis on a rule of construction favoring the tribes might arguably be read as having been intended to indicate that the strong presumption against dispositions by the United States of land under navigable waters in the territories is not applicable to Indian reservations. However, for the following reasons, I do not so read the Choctaw Nation opinion.
38
In United States v. Holt State Bank, 270 U.S. 49, 46 S.Ct. 197, 70 L.Ed. 465, the Court unanimously and unequivocally had held that the presumption applied to Indian reservations. Although the references to Holt State Bank in the Court's opinion in Choctaw Nation can hardly be characterized as enthusiastic, see 397 U.S., at 634, 90 S.Ct., at 1336, the Choctaw Nation opinion did not purport to abandon or to modify the rule of Holt State Bank. Indeed, Justice Douglas, while joining the opinion of the Court, wrote a separate opinion to explain why he had concluded that the Choctaw Nation record supplied the "exceptional circumstances" required under the Holt State Bank rule.2
39
Only seven Justices participated in the Choctaw Nation decision.3 Justice WHITE, joined by THE CHIEF JUSTICE and Justice Black in dissent, relied heavily on the Holt State Bank line of authority, see 397 U.S., at 645-648, 90 S.Ct., at 1341-1343, and, as I noted above, Justice Douglas, in his concurrence, also appears to have accepted the Holt State Bank rule. Because only four Justices, including Justice Douglas, joined the Court's opinion, I do not believe it should be read as having made a substantial change in settled law.
40
Finally, it is significant for me that Justice STEWART, who joined the Choctaw Nation opinion, is the author of the Court's opinion today. Just as he is, I am satisfied that the circumstances of the Choctaw Nation case differ significantly from the circumstances of this case. Whether I would have voted differently in the two cases if I had been a Member of the Court when Choctaw Nation was decided is a question I cannot answer. I am, however, convinced that unless the Court is to create a broad exception for Indian reservations, the Holt State Bank presumption is controlling. I therefore join the Court's opinion.
41
Justice BLACKMUN, with whom Justice BRENNAN and Justice MARSHALL join, dissenting in part.
42
Only two years ago, this Court reaffirmed that the terms of a treaty between the United States and an Indian tribe must be construed " 'in the sense in which they would naturally be understood by the Indians.' " Washington v. Fishing Vessel Assn., 443 U.S. 658, 676, 99 S.Ct. 3055, 3070, 61 L.Ed.2d 823 (1979), quoting from Jones v. Meehan, 175 U.S. 1, 11, 20 S.Ct. 1, 5, 44 L.Ed. 49 (1899). In holding today that the bed of the Big Horn River passed to the State of Montana upon its admission to the Union, the Court disregards this settled rule of statutory construction. Because I believe that the United States intended, and the Crow Nation understood, that the bed of the Big Horn was to belong to the Crow Indians, I dissent from so much of the Court's opinion as holds otherwise.1
43
* As in any case involving the construction of a treaty, it is necessary at the outset to determine what the parties intended. Washington v. Fishing Vessel Assn., 443 U.S., at 675, 99 S.Ct., at 3069. With respect to an Indian treaty, the Court has said that "the United States, as the party with the presumptively superior negotiating skills and superior knowledge of the language in which the treaty is recorded, has a responsibility to avoid taking advantage of the other side." Id., at 675-676, 99 S.Ct., at 3069-3070. Obviously, this rule is applicable here. But before determining what the Crow Indians must have understood the Treaties of Fort Laramie to mean, it is appropriate to ask what the United States intended, for our inquiry need go no further if the United States meant to convey the bed of the Big Horn River to the Indians.
44
The Court concedes that the establishment of an Indian reservation can be an "appropriate public purpose" justifying a congressional conveyance of a riverbed. Ante, at 556. It holds, however, that no such public purpose or exigency could have existed here, since at the time of the Fort Laramie Treaties the Crow were a nomadic tribe dependent chiefly upon buffalo, and fishing was not important to their diet or way of life. Ibid. The factual premise upon which the Court bases its conclusion is open to serious question: while the District Court found that fish were not "a central part of the Crow diet," 457 F.Supp. 599, 602 (Mont.1978), there was evidence at trial that the Crow ate fish both as a supplement to their buffalo diet and as a substitute for meat in time of scarcity.2
45
Even if it were true that fishing was not important to the Crow Indians at the time the Fort Laramie Treaties came into being, it does not necessarily follow that there was no public purpose or exigency that could have led Congress to convey the riverbed to the Crow. Indeed, history informs us that the very opposite was true. In negotiating these treaties, the United States was actuated by two somewhat conflicting purposes: the desire to provide for the Crow Indians, and the desire to obtain the cession of all Crow territory not within the ultimate reservation's boundaries. Retention of ownership of the riverbed for the benefit of the future State of Montana would have been inconsistent with each of these purposes.
46
First: It was the intent of the United States that the Crow Indians be converted from a nomadic, hunting tribe to a settled, agricultural people.3 The Treaty of Fort Laramie of Sept. 17, 1851, see 11 Stat. 749, and 2 C. Kappler, Indian Affairs: Laws and Treaties 594 (1904) (hereinafter Kappler), was precipitated by the depletion of game, timber, and forage by the constantly increasing number of settlers who crossed the lands of the Plains Indians on their way to California. Aggrieved by these depredations, the Indians had opposed that passage, sometimes by force.4 In order to ensure safe passage for the settlers, the United States in 1851 called together at Fort Laramie eight Indian Nations, including the Crow. The pronouncement made at that time by the United States Commissioner emphasized the Government's concern over the destruction of the game upon which the Indians depended.5 The treaty's Art. 5, which set specified boundaries for the Indian Nations, explicitly provided that the signatory tribes "do not surrender the privilege of hunting, fishing, or passing over any of the tracts" described in the treaty, 2 Kappler, at 595 (emphasis added), and, further, its Art. 7 stated that the United States would provide an annuity in the form of "provisions, merchandise, domestic animals, and agricultural implements." Ibid.
47
The intent of the United States to provide alternative means of subsistence for the Plains Indians is demonstrated even more clearly by the subsequent Fort Laramie Treaty of May 7, 1868, between the United States and the Crow Nation. 15 Stat. 649. United States Commissioner Taylor, who met with the Crow Indians in 1867, had acknowledged to them that the game upon which they relied was "fast disappearing," and had stated that the United States proposed to furnish them with "homes and cattle, to enable you to begin to raise a supply or stock with which to support your families when the game has disappeared."6 Proceedings of the Great Peace Commission of 1867-1868, pp. 86-87 (Institute for the Development of Indian Law (1975)) (hereinafter Proceedings). Given this clear recognition by the United States that the traditional mainstay of the Crow Indians' diet was disappearing, it is inconceivable that the United States intended by the 1868 treaty to deprive the Crow of "potential control over a source of food on their reservation."7 United States v. Finch, 548 F.2d 822, 832 (CA9 1976), vacated on other grounds, 433 U.S. 676, 97 S.Ct. 2909, 53 L.Ed.2d 1048 (1977). See Alaska Pacific Fisheries v. United States, 248 U.S. 78, 39 S.Ct. 40, 63 L.Ed. 138 (1918).8
48
Second: The establishment of the Crow Reservation was necessitated by the same "public purpose" or "exigency" that led to the creation of the Choctaw and Cherokee Reservations discussed in Choctaw Nation v. Oklahoma, 397 U.S. 620, 90 S.Ct. 1328, 25 L.Ed.2d 615 (1970). In both cases, Congress responded to pressure for Indian land by establishing reservations in return for the Indians' relinquishment of their claims to other territories.9 Just as the Choctaws and the Cherokees received their reservation in fee simple " 'to inure to them while they shall exist as a nation and live on it,' " id., at 625, 90 S.Ct., at 1331, so the Crow were assured in 1867 that they would receive "a tract of your country as a home for yourselves and children forever, upon which your great Father will not permit the white man to trespass." Proceedings, at 86. Indeed, during the negotiations of both the 1851 and 1868 Treaties of Fort Laramie the United States repeatedly referred to the land as belonging to the Indians, and the treaties reflect this understanding.10 Finally, like the Cherokee Reservation, see 397 U.S., at 628, the Crow Reservation created by Art. II of the 1868 treaty consisted of "one undivided tract of land described merely by exterior metes and bounds." 15 Stat. 650.
49
Since essentially the same "public purpose" led to the creation of both reservations, it is highly appropriate that the analysis of Choctaw Nation be applied in this case. As the State of Montana does here, the State of Oklahoma in Choctaw Nation claimed a riverbed that was surrounded on both sides by lands granted to an Indian tribe. This Court in Choctaw Nation found Oklahoma's claim to be "at the least strained," and held that all the land inside the reservation's exterior metes and bounds, including the riverbed, "seems clearly encompassed within the grant." even though no mention had been made of the bed. 397 U.S., at 628, 90 S.Ct., at 1333. The Court found that the "natural inference" to be drawn from the grants to the Choctaws and Cherokees was that "all the land within their metes and bounds was conveyed, including the banks and bed of rivers." Id., at 634, 90 S.Ct., at 1336. See also Donnelly v. United States, 228 U.S. 243, 259, 33 S.Ct. 449, 453, 57 L.Ed. 820 (1913). The Court offers no plausible explanation for its failure to draw the same "natural inference" here.11
50
In Choctaw Nation, the State of Oklahoma also laid claim to a portion of the Arkansas River at the border of the Indian reservation. The Court's analysis of that claim lends weight to the conclusion that the bed of the Big Horn belongs to the Crow Indians. Interpreting the treaty language setting the boundary of the Cherokee Reservation "down the main channel of the Arkansas river," the Choctaw Court noted that such language repeatedly has been held to convey title to the midpoint of the channel, relying on Brewer-Elliott Oil & Gas Co. v. United States, 260 U.S. 77, 43 S.Ct. 60, 67 L.Ed. 140 (1922).12 397 U.S., at 631-633, 90 S.Ct., at 1334-1335. Here, Art. II of the 1868 Treaty of t Laramie established the boundary of the Crow Reservation as running in part up the "mid-channel of the Yellowstone river." 15 Stat. 650. Thus, under Brewer-Elliott and Choctaw Nation, it is clear that the United States intended to grant the Crow the bed of the Yellowstone to the mid-point of the channel; it follows a fortiori that it was the intention of the United States to grant the Crow Indians the bed of that portion of the Big Horn that was totally encompassed by the reservation.13
II
51
But even assuming, arguendo, that the United States intended to retain title to the bed of the Big Horn River for the benefit of the future State of Montana, it defies common sense to suggest that the Crow Indians would have so understood the terms of the Fort Laramie Treaties.14 In negotiating the 1851 treaty, the United States repeatedly referred to the territories at issue as "your country," as "your land," and as "your territory." See Crow Tribe of Indians v. United States, 151 Ct.Cl. 281, 287-291, 284 F.2d 361, 364-367 (1960). Further, in Art. 3 of the treaty itself the Government undertook to protect the signatory tribes "against the commission of all depredations by the people of the said United States," and to compensate the tribes for any damages they suffered thereby; in return, in Art. 2, the United States received the right to build roads and military posts on the Indians' territories. 2 Kappler, at 594.
52
The history of the treaty of 1868 is even more telling. By this time, whites were no longer simply passing through the Indian territories on their way to California. Instead, in the words of United States Commissioner Taylor, who addressed the Crow representatives gathered at Fort Laramie in 1867:
53
"We learn that valuable mines have been discovered in your country which in some instances are taken possession of by the whites. We learn that roads are laid out and travelled through your land, that settlements have been made upon your lands, that your game is being driven away and is fast disappearing. We know also that the white people are rapidly increasing and are taking possession of and occupying all the valuable lands. Under these circumstances we are sent by the great Father and the Great Council in Washington to arrange some plan to relieve you, as far as possible, from the bad consequences of this state of things and to protect you from future difficulties." Proceedings, at 86. (Emphasis added.)
54
It is hardly credible that the Crow Indians who heard this declaration would have understood that the United States meant to retain the ownership of the riverbed that ran through the very heart of the land the United States promised to set aside for the Indians and their children "forever." Indeed, Chief Blackfoot, when addressed by Commissioner Taylor, responded: "The Crows used to own all this Country including all the rivers of the West." Id., at 88. (Emphasis added.) The conclusion is inescapable that the Crow Indians understood that they retained the ownership of at least those rivers within the metes and bounds of the reservation granted them.15 This understanding could only have been strengthened by the reference in the 1868 treaty to the mid-channel of the Yellowstone River as part of the boundary of the reservation; the most likely interpretation that the Crow could have placed on that reference is that half the Yellowstone belonged to them, and it is likely that they accordingly deduced that all of the rivers within the boundary of the reservation belonged to them.
55
In fact, any other conclusion would lead to absurd results. Gold had been discovered in Montana in 1858, and sluicing operations had begun on a stream in western Montana in 1862; hundreds of prospectors were lured there by this news, and some penetrated Crow territory. N. Plummer, Crow Indians 109-110 (1974). As noted, Commissioner Taylor remarked in 1867 that whites were mining in Indian territory, and he specifically indicated that the United States intended to protect the Indians from such intrusions. Yet the result reached by the Court today indicates that Montana or its licensees would have been free to enter upon the Big Horn River for the purpose of removing minerals from its bed or banks; further, in the Court's view, they remain free to do so in the future. The Court's answer to a similar claim made by the State of Oklahoma in Choctaw Nation is fully applicable here: "We do not believe that [the Indians] would have considered that they could have been precluded from exercising these basic ownership rights to the river bed, and we think it very unlikely that the United States intended otherwise."16 397 U.S., at 635, 90 S.Ct., at 1336.
III
56
In Choctaw Nation, the Court was confronted with a claim almost identical to that made by the State of Montana in this case. There, as here, the argument was made that the silence of the treaties in question with regard to the ownership of the disputed riverbeds was fatal to the Indians' case. In both cases, the state claimant placed its principal reliance on this Court's statement in United States v. Holt State Bank, 270 U.S. 49, 55, 46 S.Ct. 197, 199, 70 L.Ed. 465 (1926), that the conveyance of a riverbed "should not be regarded as intended unless the intention was definitely declared or otherwise made very plain." The Court flatly rejected this argument in Choctaw Nation, pointing out that "nothing in the Holt State Bank case or in the policy underlying its rule of construction . . . requires that courts blind themselves to the circumstances of the grant in determining the intent of the grantor."17 397 U.S., at 634, 90 S.Ct., at 1336. Since I believe that the Court has so blinded itself today, I respectfully dissent from its holding that the State of Montana has title to the bed of the Big Horn River.18
1
According to the respondents, the Crow Tribe's interest in restricting hunting and fishing on the reservation focuses almost entirely on sports fishing and duck hunting in the waters and on the surface of the Big Horn River. The parties, the District Court, and the Court of Appeals have all assumed that ownership of the riverbed will largely determine the power to control these activities. Moreover, although the complaint in this case sought to quiet title only to the bed of the Big Horn River, we note the concession of the United States that if the bed of the river passed to Montana upon its admission to the Union, the State at the same time acquired ownership of the banks of the river as well.
2
Congress was, of course, aware of this presumption once it was established by this Court. See Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 588, 97 S.Ct. 1361, 1363, 51 L.Ed.2d 660.
3
The Hitchcock decision expressly stated that the Red Lake Reservation was "a reservation within the accepted meaning of the term." 185 U.S., at 389, 22 S.Ct., at 656.
4
"[C]ommencing where the 107th degree of longitude west of Greenwich crosses the south boundary of Montana Territory; thence north along said 107th meridian to the mid-channel of the Yellowstone River; thence up said mid-channel of the Yellowstone to the point where it crosses the said southern boundary of Montana, being the 45th degree of north latitude; and thence east along said parallel of latitude to the place of beginning. . . ." Second Treaty of Fort Laramie, May 7, 1868, Art. II, 15 Stat. 650.
5
In one recent case, Choctaw Nation v. Oklahoma, 397 U.S. 620, 90 S.Ct. 1328, 25 L.Ed.2d 615, this Court did construe a reservation grant as including the bed of a navigable water, and the respondents argue that this case resembles Choctaw Nation more than it resembles the established line of cases to which Choctaw Nation is a singular exception. But the finding of a conveyance of the riverbed in Choctaw Nation was based on very peculiar circumstances not present in this case.
Those circumstances arose from the unusual history of the treaties there at issue, a history which formed an important basis of the decision. Id. at 622-628, 90 S.Ct., at 1330-1333. Immediately after the Revolutionary War, the United States had signed treaties of peace and protection with the Cherokee and Choctaw Tribes, reserving them lands in Georgia and Mississippi. In succeeding years the United States bought large areas of land from the Indians to make room for white settlers who were encroaching on tribal lands, but the Government signed new treaties guaranteeing that the Indians could live in peace on those lands not ceded. The United States soon betrayed that promise. It proposed that the Tribes be relocated in a newly acquired part of the Arkansas Territory, but the new territory was soon overrun by white settlers, and through a series of new cession agreements the Indians were forced to relocate farther and farther west. Ultimately, most of the Tribes' members refused to leave their eastern lands, doubting the reliability of the Government's promises of the new western land, but Georgia and Mississippi, anxious for the relocation westward so they could assert jurisdiction over the Indian lands, purported to abolish the Tribes and distribute the tribal lands. The Choctaws and Cherokees finally signed new treaties with the United States aimed at rectifying their past suffering at the hands of the Federal Government and the States.
Under the Choctaw treaty, the United States promised to convey new lands west of the Arkansas Territory in fee simple, and also pledged that "no Territory or State shall ever have a right to pass laws for the government of the Choctaw Nation . . . and that no part of the land granted to them shall ever be embraced in any Territory or State." Treaty of Dancing Rabbit Creek, Sept. 27, 1830, 7 Stat. 333-334, quoted in Choctaw Nation v. Oklahoma, 397 U.S., at 625, 90 S.Ct., at 1331. In 1835, the Cherokees signed a treaty containing similar provisions granting reservation lands in fee simple and promising that the tribal lands would not become part of any State or Territory. Id., at 626, 90 S.Ct., at 1332. In concluding that the United States had intended to convey the riverbed to the Tribes before the admission of Oklahoma to the Union, the Choctaw Court relied on these circumstances surrounding the treaties and placed special emphasis on the Government's promise that the reserved lands would never become part of any State. Id., at 634-635, 90 S.Ct., at 1336. Neither the special historical origins of the Choctaw and Cherokee treaties nor the crucial provisions granting Indian lands in fee simple and promising freedom from state jurisdiction in those treaties have any counterparts in the terms and circumstances of the Crow treaties of 1851 and 1868.
6
The complaint in this case did not allege that non-Indian hunting and fishing on reservation lands has impaired this privilege.
7
Article IV of the treaty addressed hunting rights specifically. But that Article referred only to "unoccupied lands of the United States," viz., lands outside the reservation boundaries, and is accordingly not relevant here.
8
The 1920 Crow Allotment Act was one of the special Allotment Acts Congress passed from time to time pursuant to the policy underlying the General Allotment Act. See S.Rep.No.219, 66th Cong., 1st Sess., 5 (1919). The Senate Committee Report on the Crow Allotment bill stated that it "is in accordance with the policy to which Congress gave its adherence many years ago, and which found expression in the [General Allotment Act]." Ibid..
9
The Court of Appeals discussed the effect of the Allotment Acts as follows:
"While neither of these Acts, nor any other to which our attention has been called, explicitly qualifies the Tribe's rights over hunting and fishing, it defies reason to suppose that Congress intended that non-members who reside on fee patent lands could hunt and fish thereon only by consent of the Tribe. So far as the record of this case reveals, no efforts to exclude completely non-members of the Crow Tribe from hunting and fishing within the reservation were being made by the Crow Tribe at the time of enactment of the Allotment Acts." 604 F.2d 1162, 1168 (footnote omitted).
But nothing in the Allotment Acts supports the view of the Court of Appeals that the Tribe could nevertheless bar hunting and fishing by non-resident fee owners. The policy of the Acts was the eventual assimilation of the Indian population. Organized Village of Kake v. Egan, 369 U.S. 60, 72, 82 S.Ct. 562, 569, 7 L.Ed.2d 573, and the "gradual extinction of Indian reservations and Indian titles." Draper v. United States, 164 U.S. 240, 246, 17 S.Ct. 107, 109, 41 L.Ed. 419. The Secretary of the
Interior and the Commissioner of Indian Affairs repeatedly emphasized that the allotment policy was designed to eventually eliminate tribal relations. See, e. g., Secretary of the Interior Ann.Rep., vol. 1, pp. 25-28 (1885); Secretary of the Interior Ann.Rep., vol. 1, p. 4 (1886); Commissioner of Indian Affairs Ann.Rep., vol. 1, pp. IV-X (1887); Secretary of the Interior Ann.Rep., vol. 1, pp. XXIX-XXXII (1888); Commissioner of Indian Affairs Ann.Rep. 3-4 (1889); Commissioner of Indian Affairs Ann.Rep. VI, XXXIX (1890); Commissioner of Indian Affairs Ann.Rep., vol. 1, pp. 3-9, 26 (1891); Commissioner of Indian Affairs Ann.Rep. 5 (1892); Secretary of the Interior Ann.Rep., vol. 1, p. IV (1894). And throughout the congressional debates on the subject of allotment, it was assumed that the "civilization" of the Indian population was to be accomplished, in part, by the dissolution of tribal relations. See, e. g., 11 Cong.Rec. 779 (Sen. Vest), 782 (Sen. Coke), 783-784 (Sen. Saunders), 875 (Sens. Morgan and Hoar), 881 (Sen. Brown), 905 (Sen. Butler), 939 (Sen. Teller), 1003 (Sen. Morgan), 1028 (Sen. Hoar), 1064, 1065 (Sen. Plumb), 1067 (Sen. Williams) (1881).
There is simply no suggestion in the legislative history that Congress intended that the non-Indians who would settle upon alienated allotted lands would be subject to tribal regulatory authority. Indeed, throughout the congressional debates, allotment of Indian land was consistently equated with the dissolution of tribal affairs and jurisdiction. See, e. g., id., at Cong.Rec. 785 (Sen. Morgan), 875 (Sen. Hoar), 876 (Sen. Morgan), 878 (Sens. Hoar and Coke), 881 (Sen. Brown), 908 (Sen. Call), 939 (Sen. Teller), 1028 (Sen. Hoar), 1067 (Sens. Edmunds and Williams). It defies common sense to suppose that Congress would intend that non-Indians purchasing allotted lands would become subject to tribal jurisdiction when an avowed purpose of the allotment policy was the ultimate destruction of tribal government. And it is hardly likely that Congress could have imagined that the purpose of peaceful assimilation could be advanced if fee-holders could be excluded from fishing or hunting on their acquired property.
The policy of allotment and sale of surplus reservation land was, of course, repudiated in 1934 by the Indian Reorganization Act, 48 Stat. 984, at 25 U.S.C. § 461 et seq. But what is relevant in this case is the effect of the land alienation occasioned by that policy on Indian treaty rights tied to Indian use and occupation of reservation land.
10
See United States v. Bouchard, 464 F.Supp. 1316, 1336 (W D Wis.); United States v. Pollmann, 364 F.Supp. 995 (D C Mont.).
11
House Report No.2593 stated that the purpose of the bill that became 18 U.S.C. § 1165 was to make it unlawful to enter Indian land to hunt, trap, or fish without the consent of the individual Indian or tribe:
"Indian property owners should have the same protection as other property owners, for example, a private hunting club may keep nonmembers off its game lands or it may issue a permit for a fee. One who comes on such lands without permission may be prosecuted under State law but a non-Indian trespasser on an Indian reservation enjoys immunity.
* * * * *
"Non-Indians are not subject to the jurisdiction of Indian courts and cannot be tried in Indian courts on trespass charges. Further, there are no Federal laws which can be invoked against trespassers." H.R.Rep.No.2593, 85th Cong., 2d Sess., at 2.
12
Subsequent Reports in the House and Senate, H.R.Rep.No.625, 86th Cong., 1st Sess. (1959); S.Rep.No.1686, 86th Cong., 2d Sess. (1960), also refer to "Indian lands" and "Indian property owners" rather than "Indian country." In Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209, this Court referred to S.Rep.No.1686, which stated that "the legislation [18 U.S.C. § 1165] will give to the Indian tribes and to individual Indian owners certain rights that now exist as to others, and fills a gap in the present law for the protection of their property." 435 U.S., at 206, 98 S.Ct., at 1019. (Emphasis added.)
Before the Court of Appeals decision, several other courts interpreted § 1165 to be confined to lands owned by Indians, or held in trust for their benefit. State v. Baker, 464 F.Supp. 1377 (W D Wis.); United States v. Bouchard, 464 F.Supp. 1316 (W D Wis.); United States v. Pollmann, supra; Donahue v. California Justice Court, 15 Cal.App.3d 557, 93 Cal.Rptr. 310. Cf. United States v. Sanford, 547 F.2d 1085, 1089 (CA9) (holding that § 1165 was designed to prevent encroachments on Indian lands, rejecting the argument that § 1165 makes illegal the unauthorized killing of wildlife on an Indian reservation, and noting that "the application of Montana game laws to the activities of non-Indians on Indian reservations does not interfere with tribal self-government on reservations).
13
Any argument that Resolution No. 74-05 is necessary to Crow tribal self-government is refuted by the findings of the District Court that the State of Montana has traditionally exercised "near exclusive" jurisdiction over hunting and fishing on fee lands within the reservation, and that the parties to this case had accommodated themselves to the state regulation. 457 F.Supp. 599, 610. The Court of Appeals left these findings unaltered and indeed implicitly reaffirmed them, adding that the record reveals no attempts by the Tribe at the time of the Crow Allotment Act to forbid non-Indian hunting and fishing on reservation lands. 604 F.2d, at 1168, and n. 11A.
14
By denying the Suquamish Tribe criminal jurisdiction over non-Indians, however, the Oliphant case would seriously restrict the ability of a tribe to enforce any purported regulation of non-Indian hunters and fishermen. Moreover, a tribe would not be able to rely for enforcement on the federal criminal trespass statute, 18 U.S.C. § 1165, since that statute does not apply to fee patented lands. See supra, at 516-563, and nn. 10-12.
15
As a corollary, this Court has held that Indian tribes retain rights to river waters necessary to make their reservations livable. Arizona v. California, 373 U.S. 546, 599, 83 S.Ct. 1468, 1497, 10 L.Ed.2d 542.
16
Similarly, the complaint did not allege that the State has abdicated or abused its responsibility for protecting and managing wildlife, has established its season, bag, or creel limits in such a way as to impair the Crow Indians' treaty rights to fish or hunt, or has imposed less stringent hunting and fishing regulations within the reservation than in other parts of the State. Cf. United States v. Washington, 384 F.Supp. 312, 410-411 (W D Wash.), aff'd, 520 F.2d 676 (CA9).
1
The Court described this rule of construction, and explained the reasoning underlying it:
"[T]hese treaties are not to be considered as exercises in ordinary conveyancing. The Indian Nations did not seek out the United States and agree upon an exchange of lands in an arm's-length transaction. Rather, treaties were imposed upon them and they had no choice but to consent. As a consequence, this Court has often held that treaties with the Indians must be interpreted as they would have understood them, see, e. g., Jones v. Meehan, 175 U.S. 1, 11, 20 S.Ct. 1, 5, 44 L.Ed. 49 (1899), and any doubtful expressions in them should be resolved in the Indians' favor. See Alaska Pacific Fisheries v. United States, 248 U.S. 78, 89, 39 S.Ct. 40, 41, 63 L.Ed. 138 (1918). Indeed, the Treaty of Dancing Rabbit Creek itself provides that 'in the construction of this Treaty wherever well founded doubt shall arise, it shall be construed most favourably towards the Choctaws.' 7 Stat. 336." 397 U.S., 630-631, 90 S.Ct., at 1334.
The Court went on to base its decision on this rule of construction:
"[T]he court in [United States v.] Holt State Bank [270 U.S. 49, 46 S.Ct. 197, 70 L.Ed. 465] itself examined the circumstances in detail and concluded 'the reservation was not intended to effect such a disposal.' 270 U.S., at 58 [46 S.Ct., at 200]. We think that the similar conclusion of the Court of Appeals in this case was in error, given the circumstances of the treaty grants and the countervailing rule of construction that well-founded doubt should be resolved in petitioners' favor." Id. at 634, 90 S.Ct., at 1336.
2
Before reviewing the history of the Cherokee and Choctaw Reservations, Justice Douglas wrote:
"[W]hile the United States holds a domain as a territory, it may convey away the right to the bed of a navigable river, not retaining that property for transfer to a future State, though as stated in Holt State Bank that purpose is 'not lightly to be inferred, and should not be regarded as intended unless the intention was definitely declared or otherwise made very plain.' 270 U.S., at 55 [46 S.Ct., at 199]. Such exceptional circumstances are present here." 397 U.S., at 639, 90 S.Ct., at 1338.
3
When Choctaw Nation was decided, the Court consisted of only eight active Justices. Justice Harlan did not participate in the consideration or decision of Choctaw Nation.
1
While the complaint in this case sought to quiet title only to the bed of the Big Horn River, see ante, at 550, n. 1, I think it plain that if the bed of the river was reserved to the Crow Indians before statehood, so also were the banks up to the high-water mark.
2
See 1 App. 39-40 (testimony of Joe Medicine Crow, Tribal Historian). See also id., at 90, 97 (testimony of Henry Old Coyote). Thus, while one historian has stated that "I have never met a reference to eating of fish" by the Crow Indians, R. Lowie, The Crow Indians 72 (1935), it is clear that such references do exist. See 457 F.Supp., at 602. See also n. 7, infra.
3
See generally United States v. Sioux Nation of Indians, 448 U.S. 371, 380, n. 11, 100 S.Ct. 2716, 2722, n. 11, 65 L.Ed.2d 844 (1980) (discussing federal reservation policy).
4
The history of the events leading up to the Fort Laramie Treaty of 1851 is recounted in detail in Crow Tribe of Indians v. United States, 151 Ct.Cl. 281, 284 F.2d 361 (1960), cert. denied, 366 U.S. 924, 81 S.Ct. 1350, 6 L.Ed.2d 383 (1961); Crow Nation v. United States, 81 Ct.Cl. 238 (1935); and Fort Berthold Indians v. United States, 71 Ct.Cl. 308 (1930).
5
According to an account published in the Saint Louis Republican, Oct. 26, 1851, Treaty Commissioner Mitchell stated:
"The ears of your Great Father are always open to the complaints of his Red Children. He has heard and is aware that your buffalo and game are driven off and your grass and timber consumed by the opening of roads and the passing of emigrants through your countries. For these losses he desires to compensate you." Quoted in Crow Tribe of Indians v. United States, 151 Ct.Cl., at 290, 284 F.2d, at 366.
The same concern was expressed in internal communications of the Government. See, e. g., id., at 287-288, 284 F.2d, at 365 (letter of W. Medill, Commissioner of Indian Affairs to the Secretary of the Interior).
6
The 1868 treaty provided that members of the Crow Tribe who commenced farming would be allotted land and given agricultural supplies; it also provided that subsistence rations for a period of four years would be supplied to every Indian who agreed to settle on the reservation. See Arts. VI, VIII, and IX of the treaty, 15 Stat. 650-652.
7
It is significant that in 1873 the United States Commissioners who sought to negotiate a further diminishment of the Crow Reservation were instructed by the very Act of Mar. 3, 1873, ch. 321, 17 Stat. 626, that "if there is upon such reservation a locality where fishing could be valuable to the Indians, [they should] include the same [in the diminished reservation] if practicable. . . ."
That those fishing rights would have been valuable to the Crow Indians is suggested by the statement of Chief Blackfoot at the 1867 Fort Laramie Conference:
"There is plenty of buffalo, deer, elk, and antelope in my country. There is plenty of beaver in all the streams. There is plenty of fish too. I never yet heard of any of the Crow Nation dying of starvation. I know that the game is fast decreasing, and whenever it gets scarce, I will tell my Great Father. That will be time enough to go farming." Proceedings, at 91. (Emphasis added.)
Edwin Thompson Denig, a white fur trader who resided in Crow territory from approximately 1833 until 1856, also remarked:
"Every creek and river teems with beaver, and good fish and fowl can be had at any stream in the proper season." E. Denig, Of the Crow Nation 21 (1980).
8
In Alaska Pacific Fisheries, the United States sued to enjoin a commercial fishing company from maintaining a fish trap in navigable waters off the Annette Islands in Alaska, which had been set aside for the Metlakahtla Indians. The lower courts granted the relief sought, and this Court affirmed. The Court noted: "That Congress had power to make the reservation inclusive of the adjacent waters and submerged land as well as the upland needs little more than statement." 248 U.S., at 87, 39 S.Ct., at 41. This was because the reservation was a setting aside of public property "for a recognized public purpose—that of safe-guarding and advancing a dependent Indian people dwelling within the United States." Id., at 88, 39 S.Ct., at 41. The Court observed that "[t]he Indians naturally looked on the fishing grounds as part of the islands," and it found further support for its conclusion "in the general rule that statutes passed for the benefit of dependent Indian tribes or communities are to be liberally construed, doubtful expressions being resolved in favor of the Indians." Id., at 89, 39 S.Ct., at 42.
9
That the Choctaws and Cherokees were forced to leave their original homeland entirely, while the Crow were forced to accept repeated diminishments of their territory, does not distinguish Choctaw Nation from this case; indeed, if anything, that distinction suggests that the Crow Indians would have had an even greater expectancy than did the Choctaws and Cherokees that the rivers encompassed by their reservation would continue to belong to them. The "public purpose" behind the creation of these reservations in each case was the same: "to provide room for the increasing numbers of new settlers who were encroaching upon Indian lands during their westward migrations." Choctaw Nation v. Oklahoma, 397 U.S., at 623, 90 S.Ct., at 1330. While the Fort Laramie Treaty of 1851 may have been designed primarily to assure safe passage for settlers crossing Indian lands, by 1868 settlers and miners were remaining in Montana. See N. Plummer, Crow Indians 109-114 (1974). Accordingly, whereas the signatory tribes, by Art. 5 of the 1851 treaty did not "abandon or prejudice any rights or claims they may have to other lands," see 2 Kappler, at 595, by Art. II of the 1868 treaty the Crow Indians "relinquish[ed] all title, claims, or rights in and to any portion of the territory of the United States, except such as is embraced within the [reservation] limits aforesaid." 15 Stat. 650.
10
See Crow Tribe of Indians v. United States, 151 Ct.Cl., at 288-291, 284 F.2d at 365-367; Proceedings, at 86. The Court suggests that the 1851 treaty was simply "a covenant among several tribes which recognized specific boundaries for their respective territories." Ante, at 553. But this interpretation of the treaty consistently has been rejected by the Court of Claims, which has held that the treaty recognized title in the signatory Indian Nations. See Crow Tribe of Indians, 151 Ct.Cl., at 291, 284 F.2d, at 367; Crow Nation v. United States, 81 Ct.Cl., at 271-272; Fort Berthold Indians v. United States, 71 Ct.Cl. 308 (1930). Further, the Court's interpretation is contrary to the analysis of the 1851 treaty made in Shoshone Indians v. United States, 324 U.S. 335, 349, 65 S.Ct. 690, 697, 89 L.Ed. 985 (1945) ("the circumstances surrounding the execution of the Fort Laramie treaty [of 1851] indicate a purpose to recognize the Indian title to the lands described").
In any event, as the Court concedes, ante, at 553, it is beyond dispute that the 1868 treaty set apart a reservation "for the absolute and undisturbed use and occupation" of the Crow Indians. Cf. United States v. Sioux Nation of Indians, 448 U.S., at 374-376, 100 S.Ct., at 2719-2721 (discussing the similar provisions of the Fort Laramie Treaty of April 29, 1868, 15 Stat. 635, between the United States and the Sioux Nation).
11
As noted above, neither the "special historical origins" of the Choctaw and Cherokee treaties, nor the provisions of those treaties granting Indian lands in fee simple, serve to distinguish this case from Choctaw Nation. Equally unpersuasive is the suggestion that in Choctaw the Court placed "special emphasis on the Government's promise that the reserved lands would never become part of any State." Ante, at 556, n. 5. Rather than placing "special emphasis" on this promise, the Choctaw Court indicated only that the promise reinforced the conclusion that the Court drew from an analysis of the language of conveyance contained in the treaties. 397 U.S., at 635, 90 S.Ct., at 1336.
12
In Brewer-Elliott, the United States established a reservation for the Osage Indians that was bounded on one side "by . . . the main channel of the Arkansas river." 260 U.S., at 81, 43 S.Ct., at 62. This Court held that the portion of the Arkansas River in question was nonnavigable and that "the title of the Osages as granted certainly included the bed of the river as far as the main channel, because the words of the grant expressly carry the title to that line." Id., at 87, 43 S.Ct., at 64 (Emphasis added). While the Court purported to reserve the question whether vesting ownership of the riverbed in the Osage Indians would have constituted an appropriate "public purpose" within the meaning of Shively v. Bowlby, 152 U.S. 1, 14 S.Ct. 548, 38 L.Ed. 331 (1894), if the stream had been navigable, that question essentially had been resolved four years earlier in Alaska Pacific Fisheries. See n. 8, supra. In any event, Choctaw Nation clearly holds, and the Court concedes, ante, at 556, that the establishment of an Indian reservation can be an "appropriate public purpose" within the meaning of Shively v. Bowlby.
13
Later events confirm this conclusion. In 1891, the Crow Indians made a further cession of territory. See Act of Mar. 3, 1891, § 31, 26 Stat. 1040. This cession was bounded in part by the Big Horn River. Significantly, the Act, described the boundary of the cession as the "mid-channel" of the river; that language necessarily indicates that the Crow owned the entire bed of the Big Horn prior to the cession, and that by the Act they were ceding half the bed in the affected stretch of the river, while retaining the other half in that stretch and the whole of the bed in the portion of the river that remained surrounded by their lands.
14
Counsel for the State of Montana acknowledged at oral argument that the Crow Indians did not understand the meaning of the equal-footing doctrine at the times they entered into the Fort Laramie Treaties. Tr. of Oral Arg. 13-14.
15
Statements made by Chief Blackfoot during the treaty negotiations of 1873 buttress this conclusion. See, e. g., 3 App. 136 ("The Great Spirit made these mountains and rivers for us, and all this land"); id., at 171 ("On the other side of the river all those streams belong to the Crows").
16
The Court suggests that the fact the United States retained a navigational easement in the Big Horn River indicates that the 1868 treaty could not have granted the Crow the exclusive right to occupy all the territory within the reservation boundary. Ante, at 555. But the retention of a navigational easement obviously does not preclude a finding that the United States meant to convey the land beneath the navigable water. See, e. g. Choctaw Nation, supra; Alaska Pacific Fisheries, 248 U.S. 78, 39 S.Ct. 40, 63 L.Ed. 138 (1918).
17
The Court's reliance on Holt State Bank is misplaced for other reasons as well. At issue in that case was the bed of Mud Lake, a once navigable body of water in the Red Lake Reservation in Minnesota. Prior to the case, most of the reservation, and all the tracts surrounding the lake, had been "relinquished and ceded" by the Indians and sold off to homesteaders. 270 U.S., at 52-53, 46 S.Ct., at 198. No such circumstances are present here. See n. 18, infra.
Moreover, a critical distinction between this case and Holt State Bank arises from the questionable status of the Red Lake Reservation before Minnesota became a State. The Court in Holt State Bank concluded that in the treaties preceding statehood there had been, with respect to the Red Lake area—unlike other areas—"no formal setting apart of what was not ceded, nor any affirmative declaration of the rights of the Indians therein. . . ." 270 U.S., at 58, 46 S.Ct., at 200 (footnote omitted). Thus, Holt State Bank clearly does not control a case, such as this one, in which, prior to statehood, the United States set apart by formal treaty a reservation that included navigable waters. See n. 10, supra.
Finally, the Court fails to recognize that it is Holt State Bank, not Choctaw Nation, that stands as "a singular exception" to this Court's established line of cases involving claims to submerged lands adjacent to or encompassed by Indian reservations. See Choctaw Nation; Brewer-Elliott; Alaska Pacific Fisheries; Donnelly v. United States, all supra.
18
I agree with the Court's resolution of the question of the power of the Tribe to regulate non-Indian fishing and hunting on reservation land owned in fee by nonmembers of the Tribe. I note only that nothing in the Court's disposition of that issue is inconsistent with the conclusion that the bed of the Big Horn River belongs to the Crow Indians. There is no suggestion that any parcels alienated in consequence of the Indian General Allotment Act of 1887, 24 Stat. 388, or the Crow Allotment Act of 1920, 41 Stat. 751, included portions of the bed of the Big Horn River. Further, the situation here is wholly unlike that in Puyallup Tribe v. Washington Game Dept., 433 U.S. 165, 97 S.Ct. 2616, 53 L.Ed.2d 667 (1977). As the Court recognizes, ante, at 561, the Puyallups alienated, in fee simple, the great majority of the lands in the reservation, including all the land abutting the Puyallup River. 433 U.S., at 173-174, and n. 11, 97 S.Ct., at 2621-2622, and n. 11. This is not such a case.
| 12
|
450 U.S. 621
101 S.Ct. 1287
67 L.Ed.2d 551
SAN DIEGO GAS & ELECTRIC COMPANY, Appellant,v.CITY OF SAN DIEGO et al.
No. 79-678.
Argued Dec. 1, 1980.
Decided March 24, 1981.
Syllabus
Appellant owns land in appellee city that when purchased as a possible site for a nuclear power plant was mostly zoned for industrial or agricultural use. The city rezoned parts of the property, reducing the acreage for industrial use, and also established an open-space plan that included appellant's property and proposed that the city acquire the property to preserve it as a parkland. A bond issue to provide funds for this acquisition was not approved by the voters, and the property remained in appellant's hands, subject to the new zoning ordinance and the open-space plan. Thereafter, appellant brought an action in California Superior Court, alleging that the city had taken its property without just compensation in violation of the Federal and State Constitutions on the theory that the city had deprived it of the beneficial use of the property through the rezoning and adoption of the open-space plan. Appellant sought damages for inverse condemnation, as well as mandamus and declaratory relief. The Superior Court awarded damages but dismissed the mandamus claim, and the California Court of Appeal affirmed. The California Supreme Court vacated the Court of Appeal's judgment and retransferred the case to that court for reconsideration in light of the intervening holding in Agins v. City of Tiburon, 24 Cal.3d 266, 157 Cal.Rptr. 372, 598 P.2d 25, aff'd on other grounds, 447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106, that an owner deprived of the beneficial use of his land by a zoning regulation is not entitled to damages for inverse condemnation but that his exclusive remedy is invalidation of the regulation in an action for mandamus or declaratory relief. On reconsideration, the Court of Appeal then reversed the Superior Court's judgment, holding that appellant could not recover compensation through inverse condemnation and that, because the record presented factual disputes not covered by the trial court, mandamus and declaratory relief would be available if appellant desired to retry the case. The California Supreme Court denied further review. Appellant appealed to this Court, claiming that the Fifth and Fourteenth Amendments required that compensation be paid whenever private property is taken for public use.
Held : Since 28 U.S.C. § 1257 permits this Court to review only "[f]inal judgments or decrees" of a state court, the appeal must be dismissed because of the absence of a final judgment. While the Court of Appeal decided that monetary compensation is not an appropriate remedy, it did not decide whether any other remedy is available because it has not decided whether any taking, in fact, occurred but appeared to have contemplated further proceedings in the trial court on remand to resolve the disputed factual issues. Pp. 631-633.
Appeal dismissed.
Louis E. Goebel, San Diego, Cal., for appellant.
C. Alan Sumption, San Diego, Cal., for appellees.
Justice BLACKMUN delivered the opinion of the Court.
1
Appellant San Diego Gas & Electric Company, a California corporation, asks this Court to rule that a State must provide a monetary remedy to a landowner whose property allegedly has been "taken" by a regulatory ordinance claimed to violate the Just Compensation Clause of the Fifth Amendment.1 This question was left open last Term in Agins v. City of Tiburon, 447 U.S. 255, 263, 100 S.Ct. 2138, 2142, 65 L.Ed.2d 106 (1980). Because we conclude that we lack jurisdiction in this case, we again must leave the issue undecided.
2
* Appellant owns a 412-acre parcel of land in Sorrento Valley, an area in the northwest part of the city of San Diego, Cal. It assembled and acquired the acreage in 1966, at a cost of about $1,770,000 as a possible site for a nuclear power plant to be constructed in the 1980's. Approximately 214 acres of the parcel lie within or near an estuary known as the Los Penasquitos Lagoon.2 These acres are low-lying land which serves as a drainage basin for three river systems. About a third of the land is subject to tidal action from the nearby Pacific Ocean. The 214 acres are unimproved, except for sewer and utility lines.3
3
When appellant acquired the 214 acres, most of the land was zoned either for industrial use or in an agricultural "holding" category.4 The city's master plan, adopted in 1967, designated nearly all the area for industrial use.
4
Several events that occurred in 1973 gave rise to this litigation. First, the San Diego City Council rezoned parts of the property. It changed 39 acres from industrial to agricultural, and increased the minimum lot size in some of the agricultural areas from 1 acre to 10 acres. The Council recommended, however, that 50 acres of the agricultural land be considered for industrial development upon the submission of specific development plans.
5
Second, the city, pursuant to Cal.Gov't Code Ann. § 65563 (West Supp.1981), established an open-space plan. This statute required each California city and county to adopt a plan "for the comprehensive and long-range preservation and conservation of open-space land within its jurisdiction." The plan adopted by the city of San Diego placed appellant's property among the city's open-space areas, which it defined as "any urban land or water surface that is essentially open or natural in character, and which has appreciable utility for park and recreation purposes, conservation of land, water or other natural resources or historic or scenic purposes." App. 159. The plan acknowledged appellant's intention to construct a nuclear power plant on the property, stating that such a plant would not necessarily be incompatible with the open-space designation.5 The plan proposed, however, that the city acquire the property to preserve it as parkland.
6
Third, the City Council proposed a bond issue in order to obtain funds to acquire open-space lands. The Council identified appellant's land as among those properties to be acquired with the proceeds of the bond issue. The proposition, however, failed to win the voters' approval. The open-space plan has remained in effect, but the city has made no attempt to acquire appellant's property.
7
On August 15, 1974, appellant instituted this action in the Superior Court for the County of San Diego against the city and a number of its officials. It alleged that the city had taken its property without just compensation, in violation of the Constitutions of the United States and California. Appellant's theory was that the city had deprived it of the entire beneficial use of the property through the rezoning and the adoption of the open-space plan. It alleged that the city followed a policy of refusing to approve any development that was inconsistent with the plan, and that the only beneficial use of the property was as an industrial park, a use that would be inconsistent with the open-space designation.6 The city disputed this allegation, arguing that appellant had never asked its approval for any development plan for the property. It also contended that, as a charter city, it was not bound by the open-space plan, even if appellant's proposed development would be inconsistent, with the plan, citing Cal.Gov't Code Ann. §§ 65700, 65803 (West 1966 and Supp.1981).
8
Appellant sought damages of $6,150,000 in inverse condemnation, as well as mandamus and declaratory relief. Prior to trial, the court dismissed the mandamus claim, holding that "mandamus is not the proper remedy to challenge the validity of a legislative act." Clerk's Tr. 42. After a nonjury trial on the issue of liability, the court granted judgment for appellant, finding that:
9
"29. [Due to the] continuing course of conduct of the defendant City culminating in June of 1973, and, in particular, the designation of substantially all of the subject property as open space . . ., plaintiff has been deprived of all practical, beneficial or economic use of the property designated as open space, and has further suffered severance damage with respect to the balance of the subject property.
10
"30. No development could proceed on the property designated as open space unless it was consistent with open space. In light of the particular characteristics of the said property, there exists no practical, beneficial or economic use of the said property designated as open space which is consistent with open space.
11
"31. Since June 19, 1973, the property designated as
12
open space has been devoted to use by the public as open space.
13
"32. Following the actions of the defendant City in June
14
of 1973, it would have been totally impractical and futile for plaintiff to have applied to defendant City for the approval of any development of the property designated as open space or the remainder of the subject property.
15
"33. Since the actions of the defendant City in June of
16
1973, the property designated as open space and the remainder of the larger parcel is unmarketable in that no other person would be willing to purchase the property, and the property has at most a nominal fair market value." App. 41-42.
17
The court concluded that these findings established that the city had taken the property and that just compensation was required by the Constitutions of both the United States and California. A subsequent jury trial on the question of damages resulted in a judgment for appellant for over $3 million.
18
On appeal, the California Court of Appeal, Fourth District, affirmed. App. to Juris, Statement B-1; see 146 Cal.Rptr. 103 (1978). It held that neither a change in zoning nor the adoption of an open-space plan automatically entitled a property owner to compensation for any resulting diminution in the value of the property. In this case, however, the record revealed that the city followed the policy of enacting and enforcing zoning ordinances that were consistent with its open-space plan. The Court of Appeal also found that the evidence supported the conclusion that industrial use was the only feasible use for the property and that the city would have denied any application for industrial development because it would be incompatible with the open-space designation. Appellant's failure to present a plan for developing the property therefore did not preclude an award of damages in its favor. The Court of Appeal, with one judge dissenting, denied the city's petition for rehearing. See 146 Cal.Rptr., at 118.
19
The Supreme Court of California, however, on July 13, 1978, granted the city's petition for a hearing. This action automatically vacated the Court of Appeal's decision, depriving it of all effect. Knouse v. Nimocks, 8 Cal.2d 482, 483-484, 66 P.2d 438 (1937). See also Cal.Rules of Court 976(d) and 977 (West 1981). Before the hearing, the Supreme Court in June 1979 retransferred the case to the Court of Appeal for reconsideration in light of the intervening decision in Agins v. City of Tiburon, 24 Cal.3d 266, 157 Cal.Rptr. 372, 598 P.2d 25 (1979), aff'd, 447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980).7 The California court in Agins held that an owner who is deprived of substantially all beneficial use of his land by a zoning regulation is not entitled to an award of damages in an inverse condemnation proceeding. Rather, his exclusive remedy is invalidation of the regulation in an action for mandamus or declaratory relief.8 Agins also held that the plaintiffs in that case were not entitled to such relief because the zoning ordinance at issue permitted the building of up to five residences on their property. Therefore, the court held, it did not deprive those plaintiffs of substantially all reasonable use of their land.9
20
When the present case was retransferred, the Court of Appeal, in an unpublished opinion, reversed the judgment of the Superior Court. App. 63. It relied upon the California decision in Agins and held that appellant could not recover compensation through inverse condemnation. It, however, did not invalidate either the zoning ordinance or the open-space plan. Instead, it held that factual disputes precluded such relief on the present state of the record:
21
"[Appellant] complains it has been denied all use of its land which is zoned for agriculture and manufacturing but lies within the open space area of the general plan. It has not made application to use or improve the property nor has it asked [the] City what development might be permitted. Even assuming no use is acceptable to the City, [appellant's] complaint deals with the alleged overzealous use of the police power by [the] City. Its remedy is mandamus or declaratory relief, not inverse condemnation. [Appellant] did in its complaint seek these remedies asserting that [the] City had arbitrarily exercised its police power by enacting an unconstitutional zoning law and general plan element or by applying the zoning and general plan unconstitutionally. However, on the present record these are disputed fact issues not covered by the trial court in its findings and conclusions. They can be dealt with anew should [appellant] elect to retry the case." App. 66.
22
The Supreme Court of California denied further review. App. to Juris. Statement I-1. Appellant appealed to this Court, arguing that the Fifth and Fourteenth Amendments require that compensation be paid whenever private property is taken for public use. Appellant takes issue with the California Supreme Court's holding in Agins that its remedy is limited to invalidation of the ordinance in a proceeding for mandamus or declaratory relief. We postponed consideration of our jurisdiction until the hearing on the merits. 447 U.S. 919, 100 S.Ct. 3008, 65 L.Ed.2d 1111 (1980). We now conclude that the appeal must be dismissed because of the absence of a final judgment.10
II
23
In Agins, the California Supreme Court held that mandamus or declaratory relief is available whenever a zoning regulation is claimed to effect an uncompensated taking in violation of the Fifth and Fourteenth Amendments. The Court of Appeal's failure, therefore, to award such relief in this case clearly indicates its conclusion that the record does not support appellant's claim that an uncompensated taking has occurred.11 Because the court found that the record presented "disputed fact issues not covered by the trial court in its findings and conclusions," App. 66,12 it held that mandamus and declaratory relief would be available "should [appellant] elect to retry the case." Ibid. While this phrase appears to us to be somewhat ambiguous, we read it as meaning that appellant is to have an opportunity on remand to convince the trial court to resolve the disputed issues in its favor. We do not believe that the Court of Appeal was holding that judgment must be entered for the city. It certainly did not so direct. This indicates that appellant is free to pursue its quest for relief in the Superior Court. The logical course of action for an appellate court that finds unresolved factual disputes in the record is to remand the case for the resolution of those disputes. We therefore conclude that the Court of Appeal's decision contemplates further proceedings in the trial court.13
III
24
Ever since this Court's decision in Grays Harbor Co. v. Coats-Fordney Co., 243 U.S. 251, 37 S.Ct. 295, 61 L.Ed. 702 (1917), a state court's holding that private property has been taken in violation of the Fifth and Fourteenth Amendments and that further proceedings are necessary to determine the compensation that must be paid has been regarded as a classic example of a decision not reviewable in this Court because it is not "final." In such a case, "the remaining litigation may raise other federal questions that may later come here." Radio Station WOW, Inc. v. Johnson, 326 U.S. 120, 127, 65 S.Ct. 1480, 89 L.Ed. 2092 (1945). This is because "the federal constitutional question embraces not only a taking, but a taking on payment of just compensation. A state judgment is not final unless it covers both aspects of that integral problem." North Dakota Board of Pharmacy v. Snyder's Drug Stores, Inc., 414 U.S. 156, 163, 94 S.Ct. 407, 412, 38 L.Ed.2d 379 (1973).
25
This case presents the reverse aspect of that situation. The Court of Appeal has decided that monetary compensation is not an appropriate remedy for any taking of appellant's property that may have occurred, but it has not decided whether any other remedy is available because it has not decided whether any taking in fact has occurred. Thus, however we might rule with respect to the Court of Appeal's decision that appellant is not entitled to a monetary remedy—and we are frank to say that the federal constitutional aspects of that issue are not to be cast aside lightly—further proceedings are necessary to resolve the federal question whether there has been a taking at all. The court's decision, therefore, is not final, and we are without jurisdiction to review it.
26
Because § 1257 permits us to review only "[f]inal judgments or decrees" of a state court, the appeal must be, and is, dismissed.
27
It is so ordered.
28
Justice REHNQUIST, concurring.
29
If I were satisfied that this appeal was from a "final judgment or decree" of the California Court of Appeal, as that term is used in 28 U.S.C. § 1257, I would have little difficulty in agreeing with much of what is said in the dissenting opinion of Justice BRENNAN. Indeed, the Court's opinion notes, that "the federal constitutional aspects of that issue are not to be cast aside lightly. . . ." Ante, p. 633.
30
But "the judicial Power of the United States" which is vested in this Court by Art. III of the Constitution is divided by that article into original jurisdiction and appellate jurisdiction. With respect to appellate jurisdiction, Art. III provides:
31
"In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."
32
The particular "regulation" of our appellate jurisdiction here relevant is found in 28 U.S.C. § 1257, which provides:
33
"Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court as follows:
34
* * * * *
35
"(2) By appeal, where is drawn in question the validity of a statute of any state on the ground of its being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of its validity."
36
The principal case construing § 1257 is Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975), from which I dissented on the issue of finality. In Cox, the Court said:
37
"The Court has noted that '[c]onsiderations of English usage as well as those of judicial policy' would justify an interpretation of the final-judgment rule to preclude review 'where anything further remains to be determined by a State court, no matter how dissociated from the only federal issue that has finally been adjudicated by the highest court of the State.' Radio Station WOW, Inc. v. Johnson, 326 U.S. 120, 124 [65 S.Ct. 1475, 1478, 89 L.Ed. 2092] (1945). But the Court there observed that the rule had not been administered in such a mechanical fashion and that there were circumstances in which there had been 'a departure from this requirement of finality for federal appellate jurisdiction.' Ibid.
38
"These circumstances were said to be 'very few,' ibid.; but as the cases have unfolded, the Court has recurringly encountered situations in which the highest court of a State has finally determined the federal issue present in a particular case, but in which there are further proceedings in the lower state courts to come. There are now at least four categories of such cases in which the Court has treated the decision of the federal issue as a final judgment for the purposes of 28 U.S.C. § 1257 and has taken jurisdiction without awaiting the completion of the additional proceedings anticipated in the lower state courts." Id., at 477, 95 S.Ct., at 1037.
39
In Cox, the Court stated that the fourth category of cases which fell within the ambit of § 1257 finality were "those situations where the federal issue has been finally decided in the state courts with further proceedings pending in which the party seeking review here might prevail on the merits on nonfederal grounds, thus rendering unnecessary review of the federal issue by this Court, and where reversal of the state court on the federal issue would be preclusive of any further litigation on the relevant cause of action rather than merely controlling the nature and character of, or determining the admissibility of evidence in, the state proceedings still to come. In these circumstances, if a refusal to immediately review the state-court decision might seriously erode federal policy, the Court has entertained and decided the federal issue, which itself has been finally determined by the state courts for purposes of the state litigation." Id., at 482-483, 95 S.Ct., at 1039.
40
I am not sure under how many of the four exceptions of Cox Justice BRENNAN may view this case as falling, but it seems to me that this case illustrates the problems which arise from a less-than-literal reading of the language "final judgment or decree." The procedural history of this case in the state courts is anomalous, to say the least, and it has resulted in a majority of this Court concluding that the California courts have not decided whether any taking in fact has occurred, ante, at 631, n. 11, and Justice BRENNAN concluding that the Court of Appeal has held that the city of San Diego's course of conduct could not effect a "taking" of appellant's property. Post, at 661, n. 27. Having read the characterization of the California court proceedings in the opinion of this Court and in the opinion of Justice BRENNAN as carefully as I can, I can only conclude that they disagree as to what issues remain open on remand from the State Court of Appeal to the Superior Court, but agree that such proceedings may occur.
41
Under these circumstances, it seems to me to be entirely in accord with the language of 28 U.S.C. § 1257, though perhaps not entirely in accord with the above-quoted portion of the opinion in Cox Broadcasting Corp. v. Cohn, supra, to conclude that this appeal is not from a "final judgment or decree." I would feel much better able to formulate federal constitutional principles of damages for land-use regulation which amounts to a taking of land under the Eminent Domain Clause of the Fifth Amendment if I knew what disposition the California courts finally made of this case. Because I do not, and cannot at this stage of the litigation, know that, I join the opinion of the Court today in which the appeal is dismissed for want of a final judgment.
42
Justice BRENNAN, with whom Justice STEWART, Justice MARSHALL, and Justice POWELL join, dissenting.
43
Title 28 U.S.C. § 1257 limits this Court's jurisdiction to review judgments of state courts to "[f]inal judgments or decrees rendered by the highest court of a State in which a decision could be had." The Court today dismisses this appeal on the ground that the Court of Appeal of California, Fourth District, failed to decide the federal question whether a "taking" of appellant's property had occurred, and therefore had not entered a final judgment or decree on that question appealable under § 1257. Because the Court's conclusion fundamentally mischaracterizes the holding and judgment of the Court of Appeal, I respectfully dissent from the Court's dismissal and reach the merits of appellant's claim.
44
* In 1966, appellant assembled a 412-acre parcel of land as a potential site for a nuclear power plant. At that time, approximately 116 acres of the property were zoned for industrial use, with most of the balance zoned in an agricultural holding category. In 1967, appellee city of San Diego adopted its general plan, designating most of appellant's property for industrial use. In 1973, the city took three critical actions which together form the predicate of the instant litigation: it down-zoned some of appellant's property from industrial to agricultural; it incorporated a new open-space element in its plan that designated about 233 acres of appellant's land for open-space use;1 and it prepared a report mapping appellant's property for purchase by the city for open-space use, contingent on passage of a bond issue. App. 49.
45
Appellant filed suit in California Superior Court alleging, inter alia, a "taking" of its property by "inverse condemnation" in violation of the United States and California Constitutions,2 and seeking compensation of over $6 million. After a nonjury trial on liability, the court held that appellee city had taken a portion of appellant's property without just compensation, thereby violating the United States and California Constitutions. Id., at 42-43. A subsequent jury trial on damages resulted in a judgment of over $3 million, plus interest as of the date of the "taking," and appraisal, engineering, and attorney's fees. Id., at 46.
46
The California Court of Appeal, Fourth District, affirmed, holding that there was "substantial evidence to support the court's conclusion [that] there was inverse condemnation." Id., at 54. The California Supreme Court granted the city's petition for a hearing, App. to Juris. Statement D-1, but later transferred the case back to the Court of Appeal for reconsideration in light of Agins v. City of Tiburon, 24 Cal.3d 266, 157 Cal.Rptr. 372, 598 P.2d 25 (1979), aff'd, 447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980). App. to Juris. Statement E-1. Expressly relying on Agins, the Court of Appeal this time reversed the Superior Court, holding:
47
"Unlike the person whose property is taken in eminent domain, the individual who is deprived of his property due to the state's exercise of its police power is not entitled to compensation. . . . A local entity's arbitrary unconstitutional exercise of the police power which deprives the owner of the beneficial use of his land does not require compensation; rather the party's remedy is administrative mandamus. . . ." App. 65-66.
48
The California Supreme Court denied further review. App. to Juris. Statement I-1.
II
49
The Court today holds that the judgment below is not "final" within the meaning of 28 U.S.C. § 1257 because, although the California Court of Appeal "has decided that monetary compensation is not an appropriate remedy for any taking of appellant's property that may have occurred, . . . it has not decided whether any other remedy is available because it has not decided whether any taking in fact has occurred." Ante, at 633 (emphasis added). With all due respect, this conclusion misreads the holding of the Court of Appeal. In faithful compliance with the instructions of the California Supreme Court's opinion in Agins v. City of Tiburon, supra, the Court of Appeal held that the city's exercise of its police power, however arbitrary or excessive, could notas a matter of federal constitutional law constitute a "taking" under the Fifth and Fourteenth Amendments, and therefore that there was no "taking" without just compensation in the instant case.
50
Examination of the Court of Appeal's opinion and the California Supreme Court's Agins opinion confirms this reading. As indicated above, the Court of Appeal noted that, "[u]nlike the person whose property is taken in eminent domain, the individual who is deprived of his property dueto the state's exercise of its police power is not entitled to compensation." App. 65-66 (emphasis added). Under the Court of Appeal's view, there can be no Fifth Amendment "taking" outside of the eminent domain context. Thus, a "local entity's arbitrary unconstitutional exercise of the police power which deprives the owner of the beneficial use of his land does not require compensation; rather the party's remedy is administrative mandamus." Id., at 66 (emphasis added).3
51
The Court of Appeal's analysis was required by the California Supreme Court's opinion in Agins v. City of Tiburon, supra. There the court stated:
52
"Plaintiffs contend that the limitations on the use of their land imposed by the ordinance constitute an unconstitutional 'taking of [plaintiff's] property without payment of just compensation' for which an action in inverse condemnation will lie. Inherent in the contention is the argument that a local entity's exercise of its police power which, in a given case, may exceed constitutional limits is equivalent to the lawful taking of property by eminent domain thereby necessitating the payment of compensation. We are unable to accept this argument believing the preferable view to be that, while such governmental action is invalid because of its excess, remedy by way of damages in eminent domain is not thereby made available." 24 Cal.3d, at 272, 157 Cal.Rptr. 372, 598 P.2d, at 28 (brackets in original) (emphasis added).4
53
A landowner may not "elect to sue in inverse condemnation and thereby transmute an excessive use of the police power- into a lawful taking for which compensation in eminent domain must be paid." Id., at 273, 157 Cal.Rptr., at 375, 598 P.2d, at 28 (emphasis added).5
54
This Court therefore, errs, I respectfully submit, when it concludes that the Court of Appeal "has not decided whether any taking in fact has occurred." Ante, at 633. For whatever the merits of the California courts' substantive rulings on the federal constitutional issue, see infra, at 646-661, it is clear that the California Supreme Court has held that California courts in a challenge, as here, to a police power regulation, are barred from holding that a Fifth Amendment "taking" requiring just compensation has occurred.6 No set of factual circumstances, no matter how severe, can "transmute" an arbitrary exercise of the city's police power into a Fifth Amendment "taking." Agins v. City of Tiburon, supra, at 273, 157 Cal.Rptr., at 375, 598 P.2d, at 28. This Court's focus on the last full paragraph of the Court of Appeal decision, ante, at 630, to support its conclusion is misplaced, because that paragraph merely raises the possibility that appellant may "elect to retry the case" on a different constitutional theory—an allegation of "overzealous use of the police power," App. 66. Whatever factual findings of the trial court might be relevant to that inquiry, they would have no bearing on a Fifth Amendment "taking" claim.7 Therefore, the Court's suggestion that "further proceedings are necessary to resolve the federal question whether there has been a taking at all," is plainly wrong. Ante, at 633.8
55
The trial court has held expressly that the "actions of defendant City . . . taken as a whole, constitute a taking of the portion of plaintiff's property designated as open space without due process of law and just compensation within the meaning of the California and United States constitutions." App. 42-43 (emphasis added). The Court of Appeal reversed this holding and concluded as a matter of law that no Fifth Amendment "taking" had occurred. This is indistinguishable, then, from a dismissal of appellant's case for legal insufficiency. In any such dismissal, factual questions are necessarily left unresolved. But when a litigant is denied relief as a matter of law, the judgment is necessarily final within the meaning of § 1257. See, e. g., Allenberg Cotton Co. v. Pittman, 419 U.S. 20, 24-25, 95 S.Ct. 260, 263, 42 L.Ed.2d 195 (1974); Windward Shipping v. American Radio Assn., 415 U.S. 104, 108, 94 S.Ct. 959, 962, 39 L.Ed.2d 195 (1974).9
56
Since the Court of Appeal held that no Fifth Amendment "taking" had occurred, no just compensation was required. This is a classic final judgment. See North Dakota Pharmacy Bd. v. Snyder's Drug Stores, Inc., 414 U.S. 156, 163, 94 S.Ct. 407, 412, 38 L.Ed.2d 379 (1973); Grays Harbor Logging Co. v. Coats-Fordney Logging Co., 243 U.S. 251, 256, 37 S.Ct. 295, 297, 61 L.Ed. 702 (1917). I therefore dissent from the dismissal of this appeal, and address the merits of the question presented.10
III
57
The Just Compensation Clause of the Fifth Amendment made applicable to the States through the Fourteenth Amendment, Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 160, 101 S.Ct. 446, 450, 66 L.Ed.2d 358 (1980); see Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, 239, 241, 17 S.Ct. 581, 585, 586, 41 L.Ed. 976 (1897), states in clear and unequivocal terms: "[N]or shall private property be taken for public use, without just compensation." The question presented on the merits in this case is whether a government entity must pay just compensation when a police power regulation has effected a "taking" of "private property" for "public use" within the meaning of that constitutional provision.11 Implicit in this question is the corollary issue whether a government entity's exercise of its regulatory police power can ever effect a "taking" within the meaning of the Just Compensation Clause.12
58
* As explained in Part II, supra, the California courts have held that a city's exercise of its police power, however arbitrary or excessive, cannot as a matter of federal constitutional law constitute a "taking" within the meaning of the Fifth Amendment. This holding flatly contradicts clear precedents of this Court. For example, in last Term's Agins v. City of Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 2141, 65 L.Ed.2d 106 (1980), the Court noted that "[t]he application of a general zoning law to particular property effects a taking if the ordinance does not substantially advance legitimate state interests . . . or [if it] denies an owner economically viable use of his land . . .."13 Applying that principle, the Court examined whether the Tiburon zoning ordinance effected a "taking" of the Agins' property, concluding that it did not have such an effect. Id., at 262-263, 100 S.Ct., at 2142-2143.
59
In Penn Central Transp. Co. v. New York City, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978), the Court analyzed "whether the restrictions imposed by New York City's [Landmarks Preservation] law upon appellants' exploitation of the [Grand Central] Terminal site effect a 'taking' of appellants' property . . . within the meaning of the Fifth Amendment." Id., at 122, 98 S.Ct., at 2658. Canvassing the appropriate inquiries necessary to determine whether a particular restriction effected a "taking," the Court identified the "economic impact of the regulation on the claimant" and the "character of the governmental action" as particularly relevant considerations. Id., at 124, 98 S.Ct., at 2659; see id., at 130-131, 98 S.Ct., at 2662. Although the Court ultimately concluded that application of New York's Landmarks Law did not effect a "taking" of the railroad property, it did so only after deciding that "[t]he restrictions imposed are substantially related to the promotion of the general welfare and not only permit reasonable beneficial use of the landmark site but also afford appellants opportunities further to enhance not only the Terminal site proper but also other properties." Id., at 138, 98 S.Ct., at 2666 (footnote omitted).
60
The constitutionality of a local ordinance regulating dredging and pit excavating on a property was addressed in Goldblatt v. Town of Hempstead, 369 U.S. 590, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962). After observing that an otherwise valid zoning ordinance that deprives the owner of the most beneficial use of his property would not be unconstitutional, id., at 592, 82 S.Ct., at 989, the Court cautioned: "That is not to say, however, that governmental action in the form of regulation cannot be so onerous as to constitute a taking which constitutionally requires compensation," id., at 594, 82 S.Ct., at 990. On many other occasions, the Court has recognized in passing the vitality of the general principle that a regulation can effect a Fifth Amendment "taking." See, e. g., PruneYard Shopping Center v. Robins, 447 U.S. 74, 83, 100 S.Ct. 2035, 2042, 64 L.Ed.2d 741 (1980); Kaiser Aetna v. United States, 444 U.S. 164, 174, 100 S.Ct. 383, 390, 62 L.Ed.2d 332 (1979); Andrus v. Allard, 444 U.S. 51, 65-66, 100 S.Ct. 318, 326, 62 L.Ed.2d 210 (1979); United States v. Central Eureka Mining Co., 357 U.S. 155, 168, 78 S.Ct. 1097, 1104, 2 L.Ed.2d 1228 (1958).
61
The principle applied in all these cases has its source in Justice Holmes' opinion for the Court in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 160, 67 L.Ed. 322 (1922), in which he stated: "The general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking."14 The determination of a "taking" is "a question of degree—and therefore cannot be disposed of by general propositions." Id., at 416, 43 S.Ct., at 160.15 While acknowledging that "[g]overnment hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law," id., at 413, 43 S.Ct., at 159, the Court rejected the proposition that police power restrictions could never be recognized as a Fifth Amendment "taking."16 Indeed, the Court concluded that the Pennsylvania statute forbidding the mining of coal that would cause the subsidence of any house effected a "taking." Id., at 414-416, 43 S.Ct., at 159.17
B
62
Not only does the holding of the California Court of Appeal contradict precedents of this Court, but it also fails to recognize the essential similarity of regulatory "takings" and other "takings." The typical "taking" occurs when a government entity formally condemns a landowner's property and obtains the fee simple pursuant to its sovereign power of eminent domain. See,e. g., Berman v. Parker, 348 U.S. 26, 33, 75 S.Ct. 98, 102, 99 L.Ed. 27 (1954). However, a "taking" may also occur without a formal condemnation proceeding or transfer of fee simple. This Court long ago recognized that
63
"[i]t would be a very curious and unsatisfactory result, if in construing [the Just Compensation Clause] . . . it shall be held that if the government refrains from the absolute conversion of real property to the uses of the public it can destroy its value entirely, can inflict irreparable and permanent injury to any extent, can, in effect, subject it to total destruction without making any compensation, because, in the narrowest sense of that word, it is not taken for the public use." Pumpelly v. Green Bay Co., 13 Wall. 166, 177-178, 20 L.Ed. 557 (1872) (emphasis in original).
64
See Chicago, R. I. & P. R. Co. v. United States, 284 U.S. 80, 96, 52 S.Ct. 87, 92, 76 L.Ed. 177 (1931).
65
In service of this principle, the Court frequently has found "takings" outside the context of formal condemnation proceedings or transfer of fee simple, in cases where government action benefiting the public resulted in destruction of the use and enjoyment of private property. E. g., Kaiser Aetna v. United States, 444 U.S., at 178-180, 100 S.Ct., at 392 (navigational servitude allowing public right of access); United States v. Dickinson, 331 U.S. 745, 750-751, 67 S.Ct. 1382, 1385, 91 L.Ed. 1789 (1947) (property flooded because of Government dam project); United States v. Causby, 328 U.S. 256, 261-262, 66 S.Ct. 1062, 1065, 90 L.Ed. 1206 (1946) (frequent low altitude flights of Army and Navy aircraft over property); Pennsylvania Coal Co. v. Mahon, 260 U.S., at 414-416, 43 S.Ct., at 159 (state regulation forbidding mining of coal).
66
Police power regulations such as zoning ordinances and other land-use restrictions can destroy the use and enjoyment of property in order to promote the public good just as effectively as formal condemnation or physical invasion of property.18 From the property owner's point of view, it may matter little whether his land is condemned or flooded, or whether it is restricted by regulation to use in its natural state, if the effect in both cases is to deprive him of all beneficial use of it. From the government's point of view, the benefits flowing to the public from preservation of open space through regulation may be equally great as from creating a wildlife refuge through formal condemnation or increasing electricity production through a dam project that floods private property. Appellees implicitly posit the distinction that the government intends to take property through condemnation or physical invasion whereas it does not through police power regulations. See Brief for Appellees 43. But "the Constitution measures a taking of property not by what a State says, or by what it intends, but by what it does." Hughes v. Washington, 389 U.S. 290, 298, 88 S.Ct. 438, 443, 19 L.Ed.2d 530 (1967) (STEWART, J., concurring) (emphasis in original); see Davis v. Newton Coal Co., 267 U.S. 292, 301, 45 S.Ct. 305, 306, 69 L.Ed. 617 (1925). It is only logical, then, that government action other than acquisition of title, occupancy, or physical invasion can be a "taking," and therefore a de facto exercise of the power of eminent domain, where the effects completely deprive the owner of all or most of his interest in the property. United States v. Dickinson, supra, at 748, 67 S.Ct., at 1384; United States v. General Motors Corp., 323 U.S. 373, 378, 65 S.Ct. 357, 359, 89 L.Ed. 311 (1945).
IV
67
Having determined that property may be "taken for public use" by police power regulation within the meaning of the Just Compensation Clause of the Fifth Amendment, the question remains whether a government entity may constitutionally deny payment of just compensation to the property owner and limit his remedy to mere invalidation of the regulation instead. Appellant argues that it is entitled to the full fair market value of the property. Appellees argue that invalidation of the regulation is sufficient without payment of monetary compensation. In my view, once a court establishes that there was a regulatory "taking," the Constitution demands that the government entity pay just compensation for the period commencing on the date the regulation first effected the "taking," and ending on the date the government entity chooses to rescind or otherwise amend19 the regulation.20 This interpretation, I believe, is supported by the express words and purpose of the Just Compensation Clause, as well as by cases of this Court construing it.
68
The language of the Fifth Amendment prohibits the "tak[ing]" of private property for "public use" without payment of "just compensation." As soon as private property has been taken, whether through formal condemnation proceedings, occupancy, physical invasion, or regulation, the landowner has already suffered a constitutional violation, and " 'the self-executing character of the constitutional provision with respect to compensation,' " United States v. Clarke, 445 U.S. 253, 257, 100 S.Ct. 1127, 1130, 63 L.Ed.2d 373 (1980), quoting 6 J. Sackman, Nichols' Law of Eminent Domain § 25.41 (rev. 3d ed. 1980), is triggered. This Court has consistently recognized that the just compensation requirement in the Fifth Amendment is not precatory: once there is a "taking," compensation must be awarded. In Jacobs v. United States, 290 U.S. 13, 54 S.Ct. 26, 78 L.Ed. 142 (1933), for example, a Government dam project creating intermittent overflows onto petitioners' property resulted in the "taking" of a servitude. Petitioners brought suit against the Government to recover just compensation for the partial "taking." Commenting on the nature of the landowners' action, the Court observed:
69
"The suits were based on the right to recover just compensation for property taken by the United States for public use in the exercise of its power of eminent domain. That right was guaranteed by the Constitution. The fact that condemnation proceedings were not instituted and that the right was asserted in suits by the owners did not change the essential nature of the claim. The form of the remedy did not qualify the right. It rested upon the Fifth Amendment. Statutory recognition was not necessary. A promise to pay was not necessary.
70
Such a promise was implied because of the duty to pay imposed by the Amendment." Id., at 16, 54 S.Ct., at 27.
71
See also Griggs v. Allegheny County, 369 U.S. 84, 84-85, 88-90, 82 S.Ct. 531, 533, 7 L.Ed.2d 585 (1962); United States v. Causby, 328 U.S., at 268, 66 S.Ct., at 1069.21 Invalidation unaccompanied by payment of damages would hardly compensate the landowner for any economic loss suffered during the time his property was taken.22
72
Moreover, mere invalidation would fall far short of fulfilling the fundamental purpose of the Just Compensation Clause. That guarantee was designed to bar the government from forcing some individuals to bear burdens which, in all fairness, should be borne by the public as a whole. Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 1569, 4 L.Ed.2d 1554 (1960). See Agins v. City of Tiburon, 447 U.S., at 260, 100 S.Ct., at 2141; Andrus v. Allard, supra, 444 U.S., at 65, 100 S.Ct., at 326. When one person is asked to assume more than a fair share of the public burden, the payment of just compensation operates to redistribute that economic cost from the individual to the public at large. See United States v. Willow River Co., 324 U.S. 499, 502, 65 S.Ct. 761, 763, 89 L.Ed. 1101 (1945); Monongahela Navigation Co. v. United States, 148 U.S. 312, 325, 13 S.Ct. 622, 625, 37 L.Ed. 463 (1893). Because police power regulations must be substantially related to the advancement of the public health, safety, morals, or general welfare, see Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 395, 47 S.Ct. 114, 121, 71 L.Ed. 303 (1926), it is axiomatic that the public receives a benefit while the offending regulation is in effect.23 If the regulation denies the private property owner the use and enjoyment of his land and is found to effect a "taking," it is only fair that the public bear the cost of benefits received during the interim period between application of the regulation and the government entity's rescission of it. The payment of just compensation serves to place the landowner in the same position monetarily as he would have occupied if his property had not been taken. Almota Farmers Elevator & Warehouse Co. v. United States, 409 U.S. 470, 473-474, 93 S.Ct. 791, 794, 35 L.Ed.2d 1 (1973); United State v. Reynolds, 397 U.S. 14, 16, 90 S.Ct. 803, 805, 25 L.Ed.2d 12 (1970).
73
The fact that a regulatory "taking" may be temporary, by virtue of the government's power to rescind or amend the regulation, does not make it any less of a constitutional "taking." Nothing in the Just Compensation Clause suggests that "takings" must be permanent and irrevocable. Nor does the temporary reversible quality of a regulatory "taking" render compensation for the time of the "taking" any less obligatory. This Court more than once has recognized that temporary reversible "takings" should be analyzed according to the same constitutional framework applied to permanent irreversible "takings." For example, in United States v. Causby, supra, at 258-259, 66 S.Ct., at 1064, the United States had executed a lease to use an airport for a one-year term "ending June 30, 1942, with a provision for renewals until June 30, 1967, or six months after the end of the national emergency, whichever [was] the earlier." The Court held that the frequent low-level flights of Army and Navy airplanes over respondents' chicken farm, located near the airport, effected a "taking" of an easement on respondents' property. 328 U.S., at 266-267, 66 S.Ct., at 1068. However, because the flights could be discontinued by the Government at any time, the Court remanded the case to the Court of Claims: "Since on this record it is not clear whether the easement taken is a permanent or a temporary one, it would be premature for us to consider whether the amount of the award made by the Court of Claims was proper." Id., at 268, 66 S.Ct., at 1069 (emphasis added). In other cases where the Government has taken only temporary use of a building, land, or equipment, the Court has not hesitated to determine the appropriate measure of just compensation. See Kimball Laundry Co. v. United States, 338 U.S. 1, 6, 69 S.Ct. 1434, 1438, 93 L.Ed. 1765 (1949); United States v. Petty Motor Co., 327 U.S. 372, 374-375, 66 S.Ct. 596, 598, 90 L.Ed. 729 (1946); United States v. General Motors Corp., 323 U.S., at 374-375, 65 S.Ct., at 358.
74
But contrary to appellant's claim that San Diego must formally condemn its property and pay full fair market value, nothing in the Just Compensation Clause empowers a court to order a government entity to condemn the property and pay its full fair market value, where the "taking" already effected is temporary and reversible and the government wants to halt the "taking." Just as the government may cancel condemnation proceedings before passage of title, see 6 J. Sackman, Nichols' Law of Eminent Domain § 24.113, p. 24-21 (rev. 3d ed. 1980), or abandon property it has temporarily occupied or invaded, see United States v. Dow, 357 U.S. 17, 26, 78 S.Ct. 1039, 1046, 2 L.Ed.2d 1109 (1958), it must have the same power to rescind a regulatory "taking." As the Court has noted: "[A]n abandonment does not prejudice the property owner. It merely results in an alteration of the property interest taken—from full ownership to one of temporary use and occupation. . . . In such cases compensation would be measured by the principles normally governing the taking of a right to use property temporarily." Ibid.; see Danforth v. United States, 308 U.S. 271, 284, 60 S.Ct. 231, 236, 84 L.Ed. 240 (1939).
75
The constitutional rule I propose requires that, once a court finds a police power regulation has effected a "taking," the government entity must pay just compensation for the period commencing on the date the regulation first effected the "taking," and ending on the date the government entity chooses to rescind or otherwise amend the regulation.24 Ordinary principles determining the proper measure of just compensation, regularly applied in cases of permanent and temporary "takings" involving formal condemnation proceedings, occupations, and physical invasions, should provide guidance to the courts in the award of compensation for a regulatory "taking." As a starting point, the value of the property taken may be ascertained as of the date of the "taking." United States v. Clarke, 445 U.S., at 258, 100 S.Ct., at 1130; Almota Farmers Elevator & Warehouse Co. v. United States, supra, at 474, 93 S.Ct., at 794; United States v. Miller, 317 U.S. 369, 374, 63 S.Ct. 276, 280, 87 L.Ed. 336 (1943); Olson v. United States, 292 U.S. 246, 255, 54 S.Ct. 704, 708, 78 L.Ed. 1236 (1934). The government must inform the court of its intentions vis-a-vis the regulation with sufficient clarity to guarantee a correct assessment of the just compensation award. Should the government decide immediately to revoke or otherwise amend the regulation, it would be liable for payment of compensation only for the interim during which the regulation effected a "taking."25 Rules of valuation already developed for temporary "takings" may be particularly useful to the courts in their quest for assessing the proper measure of monetary relief in cases of revocation or amendment, see generally Kimball Laundry Co. v. United States, supra; United States v. Petty Motor Co., supra; United States v. General Motors Corp., supra, although additional rules may need to be developed, see Kimball Laundry Co. v. United States, supra, at 21-22, 69 S.Ct., at 1445 (Rutledge, J., concurring); United States v. Miller, supra, at 373-374, 63 S.Ct., at 279, 87 L.Ed. 336. Alternatively the government may choose formally to condemn the property, or otherwise to continue the offending regulation: in either case the action must be sustained by proper measures of just compensation. See generally United States v. Fuller, 409 U.S. 488, 490-492, 93 S.Ct. 801, 803, 35 L.Ed.2d 16 (1973); United States ex rel. TVA v. Powelson, 319 U.S. 266, 281-285, 63 S.Ct. 1047, 1055, 87 L.Ed. 1390 (1943).
76
It should be noted that the Constitution does not embody any specific procedure or form of remedy that the States must adopt: "The Fifth Amendment expresses a principle of fairness and not a technical rule of procedure enshrining old or new niceties regarding 'causes of action'—when they are born, whether they proliferate, and when they die." United States v. Dickinson, 331 U.S., at 748, 67 S.Ct., at 1384. Cf. United States v. Memphis Cotton Oil Co., 288 U.S. 62, 67-69, 53 S.Ct. 278, 280, 77 L.Ed. 619 (1933). The States should be free to experiment in the implementation of this rule, provided that their chosen procedures and remedies comport with the fundamental constitutional command. See generally Hill, The Bill of Rights and the Supervisory Power, 69 Colum.L.Rev. 181, 191-193 (1969). The only constitutional requirement is that the landowner must be able meaningfully to challenge a regulation that allegedly effects a "taking," and recover just compensation if it does so. He may not be forced to resort to piecemeal litigation or otherwise unfair procedures in order to receive his due. See United States v. Dickinson, supra, at 749, 67 S.Ct., at 1385.
V
77
In Agins v. City of Tiburon, 24 Cal.3d, at 275, 157 Cal.Rptr., at 376, 598 P.2d, at 29, the California Supreme Court was "persuaded by various policy considerations to the view that inverse condemnation is an inappropriate and undesirable remedy in cases in which unconstitutional regulation is alleged." In particular, the court cited "the need for preserving a degree of freedom in land-use planning function, and the inhibiting financial force which inheres in the inverse condemnation remedy," in reaching its conclusion. Id., at 276, 157 Cal.Rptr., at 377, 598 P.2d at 31. But the applicability of express constitutional guarantees is not a matter to be determined on the basis of policy judgments made by the legislative, executive, or judicial branches.26 Nor can the vindication of those rights depend on the expense in doing so. See Watson v. Memphis, 373 U.S. 526, 537-538, 83 S.Ct. 1314, 1320, 10 L.Ed.2d 529 (1963).
78
Because I believe that the Just Compensation Clause requires the constitutional rule outlined supra, I would vacate the judgment of the California Court of Appeal, Fourth District, and remand for further proceedings not inconsistent with this opinion.27
1
"[N]or shall private property be taken for public use, without just compensation."
The Fifth Amendment's prohibition applies against the States through the Fourteenth Amendment. Chicago, B., & Q. R. Co. v. Chicago, 166 U.S. 226, 239, 17 S.Ct. 581, 585, 41 L.Ed. 979 (1897); Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 160, 101 S.Ct. 446, 450, 66 L.Ed.2d 358 (1980).
2
Appellant claims that only the 214 acres have been taken by the city of San Diego. Throughout this opinion, "the property" and any similar phrase refers to this smaller portion of the 412 acres owned by appellant.
3
Apparently other portions of the 412-acre parcel have been developed to some extent, and some parts sold.
4
The city had classified 116 acres as M-1A (industrial) and 112 acres as A-1-1 (agricultural). The latter classification was reserved for "undeveloped areas not yet ready for urbanization and awaiting development, those areas where agricultural usage may be reasonably expected to persist or areas designated as open space in the general plan." San Diego Ordinance No. 8706 (New Series) § 101.0404 (1962), reproduced in Brief for Appellees C-1. A small amount of the land was zoned for residential development. (These figures total more than 214 acres. When the California courts described the zoning of the property, they did not distinguish between the 214 acres that allegedly were taken and 15 other acres that the trial court found had been damaged by the severance.)
5
The portion of the plan that discussed the Los Penasquitos Lagoon area stated: "[T]he San Diego Gas & Electric Company has a large (240 acre) ownership which it intends to utilize as the location of a nuclear power plant sometime in the 1980's. . . . [S]uch a facility, if sensitively designed and sited, could be compatible with open space preservation in this subsystem; however, a number of approvals and clearances must be obtained prior to the plant's construction becoming a reality." App. 160.
6
Appellant abandoned its plan to construct a nuclear power plant after the discovery of an off-shore fault that rendered the project unfeasible. Tr. 73. Its witnesses acknowledged that only about 150 acres were usable as an industrial park, and that 1.25 million cubic yards of fill would be needed to undertake such a development. Id., at 711, 905.
7
The retransfer order cited Agins as 23 Cal.3d 605. App. to Juris. Statement E-1. The court's opinion, however, later was modified and reprinted with the citations noted in the text.
8
Contrary to the dissent's argument, the California Supreme Court's Agins decision did not hold that a zoning ordinance never could be a "taking" and thus never could violate the Just Compensation Clause. It simply limited the remedy available for any such violation to nonmonetary relief. Immediately following the passage quoted by the dissent, post, at 640-641, that court stated:
"This conclusion is supported by a leading authority (1 Nichols, Eminent Domain (3d rev. ed. 1978) Nature and Orgin of Power, § 1.42(1), pp. 1-116—1-121), who expresses his view in this manner: 'Not only is an
actual physical appropriation, under an attempted exercise of the police power, in practical effect an exercise of the power of eminent domain, but if regulative legislation is so unreasonable or arbitrary, as virtually to deprive a person of the complete use and enjoyment of his property, it comes within the purview of the law of eminent domain. Such legislation is an invalid exercise of the police power since it is clearly unreasonable and arbitrary. It is invalid as an exercise of the power of eminent domain since no provision is made for compensation.' " 24 Cal.3d, at 272, 157 Cal.Rptr. at 375, 598 P.2d, at 28. (Emphasis added by the California court). See also id., at 273-274, 157 Cal.Rptr., at 375, 598 P.2d, at 29:
"While acknowledging the power of government to preserve and improve the quality of life for its citizens through the regulation of the use of private land, we cannot countenance the service of this legitimate need through the uncompensated destruction of private property rights." And see id., at 276, 157 Cal.Rptr., at 377, 598 P.2d, at 30:
" 'Determining that a particular land-use control requires compensation is an appropriate function of the judiciary. . . . But it seems a usurpation of legislative power for a court to force compensation,' " quoting Note, Inverse Condemnation: Its Availability in Challenging the Validity of a Zoning Ordinance, 26 Stan.L.Rev. 1439, 1451 (1974).
When Agins was appealed here, we unanimously agreed that "[t]he State Supreme Court determined that the appellants could not recover damages for inverse condemnation even if the zoning ordinances constituted a taking. The court stated that only mandamus and declaratory judgment are remedies available to such a landowner." 447 U.S., at 263, 100 S.Ct., at 2142. We believe, therefore, that it is the dissent that "fundamentally mischaracterizes," post, at 637, the California ruling.
9
This Court's affirmance of the California court's judgment in Agins was on the ground that there was no taking. 447 U.S., at 263, 100 S.Ct., at 2142.
10
Title 28 U.S.C.A. § 1257 grants jurisdiction to this Court to review only "[f]inal judgments or degrees rendered by the highest court of a State in which a decision could be had." Because the finality requirement of § 1257 applies to this Court's review of state-court judgments both by appeal and by certiorari, we do not address the city's contention that, inasmuch as the Court of Appeal did not uphold any statute against a constitutional challenge, this is not a proper appeal under § 1257(2).
11
We recognize that this is inconsistent with the Court of Appeal's first ruling in this case, but, as has been noted, that decision was deprived of all effect by the Supreme Court's order granting a hearing.
The dissent's statement that the Court of Appeal "concluded as a matter of law that no Fifth Amendment 'taking' had occurred," post, at 645, is premised upon its misreading of the Agins opinion. See n. 8, supra. The Court of Appeal simply refused to award appellant the only remedy held to be available for a "taking" because there were disputed factual issues to be resolved.
12
Although its initial opinion affirmed the trial court's finding that any application by appellant to develop the property would have been rejected, it is clear that the Court of Appeal reconsidered that finding in the light of Agins. In Agins, the California Supreme Court held that landowners who had not "made application to use or improve their property" following the passage of a zoning ordinance and had not "sought or received any definitive statement as to how many dwelling units they could build on their land," 24 Cal.3d, at 271, 157 Cal.Rptr., at 374, 598 P.2d at 27, had not shown that the ordinance took their property without just compensation, since it permitted up to five residences to be built on the plaintiffs' property. We agreed that no violation of the Fifth and Fourteenth Amendments had been shown, since the landowners were "free to pursue their reasonable investment, expectations by submitting a development plan to local officials." 447 U.S., at 262, 100 S.Ct., at 2142.
In this case, city witnesses testified that some development of appellant's property would be consistent with the open-space plan. App. 134-135, 140, 149-150. Indeed, the plan holds out the possibility that a nuclear power plant could be built on the site, see n. 5, supra, and the witnesses testified that other forms of industrial development might be permitted as well. App. 140, 149-150. The trial court's opinion does not explain why it concluded in light of this evidence that any attempt to obtain the city's permission for development of the property would be futile.
When the Court of Appeal reconsidered its decision in light of Agins, we believe that its reference to "disputed fact issues not covered by the trial court in its findings," App. 66, referred to this controversy. Its opinion states that damages would be unavailable "[e]ven assuming no use is acceptable to the City." Ibid. The Court of Appeal declined to award mandamus or declaratory relief because it could not make this "assumption" in light of the factual disputes.
13
Appellant's counsel shares this view:
"QUESTION: Mr. Goebel, your second and third cause of action in your complaint were petitions for mandate and the relief prayed in paragraph 3 of your complaint was that the Court order the City of San Diego to set aside the rezoning and to set aside the adoption of the open space element of its general plan. As I understand it, on remand, the trial court may grant that relief, theoretically.
"MR. GOEBEL: That's correct, Your Honor." Tr. of Oral Arg. 18.
1
The city's plan defined "open space" as "any urban land or water surface that is essentially open or natural in character, and which has appreciable utility for park and recreation purposes, conservation of land, water or other natural resources or historic or scenic purposes." App. 52, n. 3.
2
The phrase "inverse condemnation" generally describes a cause of action against a government defendant in which a landowner may recover just compensation for a "taking" of his property under the Fifth Amendment, even though formal condemnation proceedings in exercise of the sovereign's power of eminent domain have not been instituted by the government entity. Agins v. City of Tiburon, 447 U.S. 255, 258, n. 2, 100 S.Ct. 2138, 2140, n. 2, 65 L.Ed.2d 106 (1980); United States v. Clarke, 445 U.S. 253, 257, 100 S.Ct. 1127, 1130, 63 L.Ed.2d 373 (1980). See, e. g., Cal.Civ.Proc.Code Ann. § 1245.260 (West Supp.1981). In the typical condemnation proceeding, the government brings a judicial or administrative action against the property owner to "take" the fee simple or an interest in his property; the judicial or administrative body enters a decree of condemnation and just compensation is awarded. See ibid. See generally 6 J. Sackman, Nichols' Law of Eminent Domain § 24.1 (rev. 3d ed. 1980). In an "inverse condemnation" action, the condemnation is "inverse" because it is the landowner, not the government entity, who institutes the proceeding.
"Eminent domain" is the "power of the sovereign to take property for public use without the owner's consent." Id., § 1.11, at 1-7. Formal proceedings initiated by the government are loosely referred to as either "eminent domain" or "condemnation" proceedings. See Agins v. City of Tiburon, supra, at 258, n. 2, 100 S.Ct., at 2140, n. 2.
3
One law review article, cited twice by the California Supreme Court in Agins, typifies this mode of analysis:
"[T]raditionally eminent domain and the police power have been treated as disjunctive. . . . The Constitution requires that just compensation be paid to landowners whose property has been condemned or taken by a government exercising its eminent domain power; if property is taken and no compensation awarded, the landowner is entitled to bring a so-called inverse condemnation action to compel payment. In contrast, under the police power constitutional requirements relate to the reasonableness of the relation between the means used and the ends sought; a landowner affected by an unreasonable regulation is entitled to bring an action challenging its validity." Note, Eldridge v. City of Palo Alto: Aberration or New Direction in Land Use Law?, 28 Hastings L.J. 1569, 1570 (1977) (footnotes omitted).
4
It is not merely linguistic coincidence that the California Supreme Court in Agins never analyzed the Tiburon zoning ordinance to determine whether a Fifth Amendment "taking" without just compensation had occurred. Instead, the court noted that "a zoning ordinance may be unconstitutional and subject to invalidation only when its effect is to deprive the landowner of substantially all reasonable use of his property," and that "[t]he ordinance before us had no such effect." 24 Cal.3d, at 277, 157 Cal.Rptr., at 378, 598 P.2d, at 31, aff'd, 447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980) (emphasis added). Throughout the Agins opinion as well as the Court of Appeal decision below are references to actions which "deprive" the landowner of property use, indicating that the California courts were proceeding under the Due Process Clauses of the Fifth and Fourteenth Amendments, and not the Just Compensation Clause. Id., at 273, 277, 157 Cal.Rptr. 372, 378, 598 P.2d, at 28, 31; Joint App. 66. Indeed the California courts are not alone in concluding that a government's exercise of its regulatory police powers can never effect a "taking." Five years ago, the Court of Appeals of New York reached the same conclusion. See Fred F. French Investing Co. v. City of New York, 39 N.Y.2d 587, 594-596, 385 N.Y.S.2d 5, 8-9, 350 N.E.2d 381, 384-386, cert. denied and appeal dism'd, 429 U.S. 990, 97 S.Ct. 515, 50 L.Ed.2d 602 (1976). This Court described a subsequent New York Court of Appeals decision on review here as
"summarily reject[ing] any claim that the [New York City] Landmarks Law had 'taken' property without 'just compensation,' . . . indicating that there could be no 'taking' since the law had not transferred control of the property to the city, but only restricted appellants' exploitation of it. In that circumstance, the Court of Appeals held that appellants' attack on the law could prevail only if the law deprived appellants of their property in violation of the Due Process Clause of the Fourteenth Amendment." Penn Central Transp. Co. v. New York City, 438 U.S. 104, 120-121, 98 S.Ct. 2646, 2657, 57 L.Ed.2d 631 (1978).
See Marcus, The Grand Slam Grand Central Terminal Decision: A Euclid for Landmarks, Favorable Notice for TDR and A Resolution of the Regulatory/Taking Impasse, 7 Ecology Law Quarterly 731, 749, n. 97 (1978). See generally Comment, Balancing Private Loss Against Public Gain to Test for a Violation of Due Process or a Taking without Just Compensation, 54 Wash.L.Rev. 315, 319-327 (1979).
5
In so ruling, the California Supreme Court expressly disapproved Eldridge v. City of Palo Alto, 57 Cal.App.3d 613, 621, 129 Cal.Rptr. 575, 579 (1976), a Court of Appeal decision holding that "a valid zoning ordinance may nevertheless operate so oppressively as to amount to a taking, thus giving an aggrieved landowner a right to damages in inverse condemnation."
6
Appellees agreed with this interpretation at oral argument:
"QUESTION: Well, suppose the California Supreme Court or all the courts in California declare the zoning statute unconstitutional as applied to this piece of property, that the City has unconstitutionally interfered with the use of this property.
"MR. SUMPTION: Yes, Your Honor.
"QUESTION: Now, has the California Supreme Court or the Court of Appeal precluded damages in that situation?
"MR. SUMPTION: Under those facts, without any actual use, without the other factors, denial of access or any direct and special interference with the landowner's attempt to use the property, I think that's a correct assessment, that the California Supreme Court would say, no, your remedy is to set aside the regulations.
"QUESTION: Well, they get set aside but meanwhile the landowner has not been able to use it for the purpose he wanted. The zoning ordinance has effectively precluded his use of the property and the Supreme Court has said so. No damages?
"MR. SUMPTION: No damages, Your Honor.
"QUESTION: You say that's police power, not Fifth Amendment taking?
"MR. SUMPTION: In California, that's the rule—" Tr. of Oral Arg. 54-55 (emphasis added).
This understanding is likewise shared by appellant and amici. See, e. g., Brief for Appellant 17, 31, 36; Brief for National Association of Home Builders and California Building Industry as Amicis Curiae 5, 7.
7
The Court concludes from the last paragraph of the Court of Appeal's opinion that "appellant is free to pursue its quest for relief in the Superior Court. The logical course of action for an appellate court that finds unresolved factual disputes in the record is to remand the case for the resolution of those disputes." Ante, at 632.
It is true that, under California law, an unqualified reversal generally operates to remand the cause for a new trial on all remaining issues. McDonough Power Equipment Co. v. Superior Court, 8 Cal.3d 527, 532, 105 Cal.Rptr. 330, 333, 503 P.2d 1338, 1341 (1972); De Hart v. Allen, 26 Cal.2d 829, 833, 161 P.2d 453, 455-456 (1945); 5 Cal.Jur. 3d, Appellate Review § 587, pp. 303-304 (1973); see Gospel Army v. Los Angeles, 331 U.S. 543, 546, 67 S.Ct. 1428, 1429, 91 L.Ed. 1662 (1947). However, a reviewing court may qualify its reversal and its intent must be divined from its opinion as a whole. Stromer v. Browning, 268 Cal.App.2d 513, 518-519, 74 Cal.Rptr. 155, 158 (1968); 5 Cal.Jur. 3d, supra, § 588, at 304.
Here, the Court of Appeal suggested that, if appellee elected to retry the case, "disputed fact issues not covered by the trial court in its findings and conclusions" could be "dealt with anew." App. 66 (emphasis added). In the original "Findings of Fact and Conclusions of Law," the trial court unequivocally found a Fifth Amendment "taking" without just compensation:
"The actions of defendant City against plaintiff's property were motivated to achieve a public purpose, namely, preservation of open space, without payment of just compensation and were so burdensome and oppressive as to deprive plaintiff of any practical, beneficial or economic use of the property designated as open space, and, therefore, taken as a whole, constitute a taking of the portion of plaintiff's property designated as open space without due process of law and just compensation within the meaning of the California and United States constitutions. . . ." Id., at 42-43 (emphasis added).
By limiting any possible retrial to "disputed fact issues not covered by the trial court in its findings and conclusions," the Court of Appeal plainly indicated that the Fifth Amendment "taking" issue had been finally resolved. This is perfectly consistent, then, with the Court of Appeal's holding that there is no Fifth Amendment "taking" when excessive use of the police power is proved. Therefore, the Court's belief that the "disputed factual issues" involve appellant's failure to apply for a permit ante, at 631, n. 11, is beside the point, since under no set of factual circumstances may the court find a Fifth Amendment "taking."
8
The Court of Appeal's first opinion unequivocally affirmed the Superior Court's finding of a "taking" on the facts of this case. App. 49-50, 60. It is no doubt true that the first opinion was deprived of all legal effect under California law once the California Supreme Court granted the city's petition for a hearing. Knouse v. Nimocks, 8 Cal.2d 482, 483-484, 66 P.2d 438, 438 (1937). Nevertheless, under this Court's view that the second Court of Appeal's opinion left open the "taking" question, this Court must admit, as it does, that the second opinion is inconsistent with the finding of a "taking" in the first. Ante, at 631, n. 11. Under my reading, the second is easily reconcilable with the first: because the Court of Appeal was obligated by the terms of the California Supreme Court's transfer order to hold that no regulatory action could effect a "taking," it was forced in its second opinion to abandon its original agreement with the Superior Court's finding of a "taking."
9
In his concurring opinion, my Brother REHNQUIST, who dissented in Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975), writes:
"I am not sure under how many of the four exceptions of Cox Justice BRENNAN may view this case as falling, but it seems to me that this case illustrates the problems which arise from a less than literal reading of the language 'final judgment or decree.' " Ante, at 635-636.
Then, he assumes that I agree with the Court that further proceedings will occur on remand to the Superior Court, and concludes that this appeal is therefore not final within the literal language of 28 U.S.C. § 1257, even if it may be treated as final under Cox. Ante, at 636.
With all respect, my Brother REHNQUIST misreads my position. I view the judgment as final within the literal meaning of § 1257, and therefore do not find it necessary to rely on any "exception" to the finality rule. Appellant alleged and proved a "taking" of its property without just compensation under the Just Compensation Clause of the Fifth Amendment. On review, the California Court of Appeal reversed, holding as a matter of federal law that there was no "taking." Since that time, appellant has continued to press its federal just compensation claim in a petition for rehearing before the Court of Appeal, a petition for hearing before the California Supreme Court, and an appeal to this Court. The Court of Appeal did not direct further proceedings in the Superior Court on appellant's claim. What the Court of Appeal indicated was that appellant was not precluded from "elect[ing] to retry the case", App. 66, on an alternative constitutional theory not based on the Just Compensation Clause. In other words, the Court of Appeal refused to recognize an alleged and proved constitutional violation and proposed that appellant try another and different constitutional theory. But obviously the judgment is final as to the rejected constitutional theory under even the strictest reading of § 1257. I can see no possible reason for refusing to decide appellant's claim solely on the basis that the Court of Appeal proposed its own constitutional theory and strategy for retrying the case.
In sum, the accurate statement of my view is that appellant has received a final judgment. That judgment is "subject to no further review or correction in any other state tribunal; it [is] final as an effective determination of the litigation and not of merely interlocutory or intermediate steps therein. It [is] the final word of a final court." Market Street R. Co. v. Railroad Comm'n, 324 U.S. 548, 551, 65 S.Ct. 770, 773, 89 L.Ed. 1171 (1945).
10
Appellees also argue that we may not exercise our appellate jurisdiction under 28 U.S.C. § 1257(2) because appellant has not drawn in question the validity of a statute. Brief for Appellees 1-3. Even if I were to agree with appellees' contentions, I would treat the jurisdictional statement as a petition for writ of certiorari, and grant the petition. 28 U.S.C. §§ 1257(3), 2103.
11
This Court failed to reach this question in last Term's Agins v. City of Tiburon. In that case, as an alternative holding, the California Supreme Court had found on the facts of the case that the Tiburon ordinance "did not unconstitutionally interfere with plaintiffs' entire use of the land or impermissibly decrease its value." 24 Cal.3d, at 277, 157 Cal.Rptr., at 378, 598 P.2d, at 31. This Court affirmed on that ground, thereby not reaching the broader ground that constitutes the sole basis for the opinion of the Court of Appeal in the instant case. 447 U.S., at 262-263, 100 S.Ct., at 2142.
12
The question presented in appellant's jurisdictional statement states in pertinent part:
"Can a state court with impunity deny an aggrieved property owner its constitutionally mandated remedy of just compensation when a local government entity has (a) imposed arbitrary, excessive, and unconstitutional land use regulations; (b) commenced, but later abandoned direct acquisitive efforts under its power of eminent domain when its public purpose was satisfied by the restraints of the purported regulations; and (c) through a continuing course of conduct acted so as to deprive the property owner of all practical, beneficial or economic use of its property; and the property owner has so established as a matter of fact after full trial of the issues?" Juris. Statement 4-5.
13
The Court of Appeal below rendered its decision almost one year before this Court's decision in Agins v. City of Tiburon, supra.
14
One interpretation of the Pennsylvania Coal opinion insists that the word "taking" was used "metaphorically," and that the "gravamen of the constitutional challenge to the regulatory measure was that it was an invalid exercise of the police power under the due process clause, and the [case was] decided under that rubric." Fred F. French Investing Co. v. City of New York, 39 N.Y.2d, at 594, 385 N.Y.S.2d, at 9, 350 N.E.2d, at 385; see also Brief for Appellees 37-38. In addition to tampering with the express language of the opinion, this view ignores the coal company's repeated claim before the Court that the Pennsylvania statute took its property without just compensation. Brief for Pennsylvania Coal Company, at 7-8, 16, 19-20, 21, 24, 28-33; Brief for the Mahons, at 73.
15
More recent Supreme Court cases have emphasized this aspect of "taking" analysis, commenting that the Court has been unable to develop any "set formula to determine where regulation ends and taking begins," Goldblatt v. Town of Hempstead, 369 U.S. 590, 594, 82 S.Ct. 987, 990, 8 L.Ed.2d 130 (1962), and that "[it] calls as much for the exercise of judgment as for the application of logic," Andrus v. Allard, 444 U.S. 51, 65, 100 S.Ct. 318, 326, 62 L.Ed.2d 210 (1979). See Penn Central Transp. Co. v. New York City, 438 U.S., at 124, 98 S.Ct., at 2659 ("ad hoc, factual inquiries"); United States v. Central Eureka Mining Co., 357 U.S. 155, 168, 78 S.Ct. 1097, 1104, 2 L.Ed.2d 1228 (1958) ("question properly turning upon the particular circumstances of each case").
One distinguished commentator has characterized the attempt to differentiate "regulation" from "taking" as "the most haunting jurisprudential problem in the field of contemporary land-use law . . . one that may be the lawyer's equivalent of the physicist's hunt for the quark." C. Haar, Land-Use Planning 766 (3d ed. 1976). See generally id., at 766-777; Berger, A Policy Analysis of the Taking Problem, 49 N.Y.U.L.Rev. 165 (1974); Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of "Just Compensation" Law, 80 Harv.L.Rev. 1165 (1967); Sax, Takings and the Police Power, 74 Yale L.J. 36 (1964). Another has described a 30-year series of Court opinions resulting from this case-by-case approach as a "crazy-quilt pattern." Dunham, Griggs v. Allegheny County in Perspective: Thirty Years of Supreme Court Expropriation Law, 1962 S.Ct.Rev. 63.
16
Justice Brandeis, in dissent, argued the absolute position that a "restriction imposed to protect the public health, safety or morals from dangers threatened is not a taking." 260 U.S., at 417, 43 S.Ct., at 161. In partial reliance on Justice Brandeis' dissent, one report urges that the Court overrule the Pennsylvania Coal case and hold that "a regulation of the use of land, if reasonably related to a valid public purpose, can never constitute a taking." F. Bosselman, D. Callies, & J. Banta, The Taking Issue 238-255 (1973).
17
The California Supreme Court, in its opinion in Agins v. City of Tiburon, 24 Cal.3d, at 274, 157 Cal.Rptr., at 376, 598 P.2d, at 29, interpreted Justice Holmes' use of the word "taking" to "indicate the limit by which the acknowledged social goal of land control could be achieved by regulation rather than by eminent domain." (Emphasis added.) I find such a reading unpersuasive. The Court specifically indicated that a "regulation [that] goes too far . . . will be recognized as a taking," and that this determination is "a question of degree." Pennsylvania Coal Co. v. Mahon, supra, 260 U.S., at 415-416, 43 S.Ct., at 160 (emphasis added). Clearly, then, the Court contemplated that a regulation could cross the boundary surrounding valid police power exercise and become a Fifth Amendment "taking."
The California court further argued that the Court in Pennsylvania Coal "did not attempt . . . to transmute the illegal governmental infringement into an exercise of eminent domain and the possibility of compensation was not even considered." Agins v. City of Tiburon, supra, at 274, 157 Cal.Rptr., at 376, 598 P.2d, at 29. This overlooks the factual posture in Pennsylvania Coal, where the homeowner, not the coal company, brought an injunction action to prevent the company "from mining under their property in such a way as to remove the supports and cause a subsidence of the surface and of their house." Pennsylvania Coal Co. v. Mahon, supra, at 412, 43 S.Ct., at 159. Because no one asked for an award of just compensation, there was no reason for the Court to consider it. The company only sought reversal of the Pennsylvania Supreme Court's decree that enjoined it from mining coal, and this Court granted that request.
18
In the instant case, for example, appellant contended that the city's actions "denied in all practical effect any possible beneficial or economical use of the subject property." Complaint ¶ 15, App. 11. Although the Court of Appeal's first opinion has no legal effect, see n. 8, supra, the court did observe that the city's objective was "to have the property remain unused, undisturbed and in its natural state so open space and scenic vistas may be preserved. In this sense the property is being 'used' by the public. . . ." App. 60.
19
Under this rule, a government entity is entitled to amend the offending regulation so that it no longer effects a "taking." It may also choose formally to condemn the property.
20
Amicus suggests that the California Supreme Court has not conclusively decided the issue whether interim damages might be awarded to compensate a landowner for economic loss sustained prior to invalidation of the zoning ordinance. Brief for United States as Amicus Curiae 23, and n. 24. But since the California courts fail to concede that a regulation can effect a "taking," any award of interim damages would not be justified or determined, as constitutionally required, under the Just Compensation Clause.
21
Amici suggest that the Court's awards of just compensation in cases involving the United States were premised either on a "theory of implied promise to pay . . . or [on] congressional authorization [to pay] under the Tucker Act, 28 U.S.C. 1346(a)." Brief for United States as Amicus Curiae 27; see Brief for the National Trust for Historic Preservation et al. as Amici Curiae 7-8. This suggestion mischaracterizes the import of our cases. As the Court has noted:
"But whether the theory . . . be that there was a taking under the Fifth Amendment, and that therefore the Tucker Act may be invoked because it is a claim founded upon the Constitution, or that there was an implied promise by the Government to pay for it, is immaterial. In either event, the claim traces back to the prohibition of the Fifth Amendment, 'nor shall private property be taken for public use, without just compensation.' The Constitution is 'intended to preserve practical and substantial rights, not to maintain theories.' " United States v. Dickinson, 331 U.S. 745, 748, 67 S.Ct. 1382, 1384, 91 L.Ed. 1789 (1947).
22
The instant litigation is a good case in point. The trial court, on April 9, 1976, found that the city's actions effected a "taking" of appellant's property on June 19, 1973. If true, then appellant has been deprived of all beneficial use of its property in violation of the Just Compensation Clause for the past seven years.
Invalidation hardly prevents enactment of subsequent unconstitutional regulations by the government entity. At the 1974 annual conference of the National Institute of Municipal Law Officers in California, a California City Attorney gave fellow City Attorneys the following advice:
"IF ALL ELSE FAILS, MERELY AMEND THE REGULATION AND START OVER AGAIN.
"If legal preventive maintenance does not work, and you still receive a claim attacking the land use regulation, or if you try the case and lose, don't worry about it. All is not lost. One of the extra 'goodies' contained in the recent [California] Supreme Court case of Selby v. City of San Buenaventura, 10 C.3d 110, [109 Cal.Rptr. 799, 514 P.2d 111] appears to allow the City to change the regulation in question, even after trial and judgment, make it more reasonable, more restrictive, or whatever, and everybody starts over again.
* * * * *
"See how easy it is to be a City Attorney. Sometimes you can lose the battle and still win the war. Good luck." Longtin, Avoiding and Defending Constitutional Attacks on Land Use Regulations (Including Inverse Condemnation), in 38B NIMLO Municipal Law Review 192-193 (1975) (emphasis in original).
23
A different case may arise where a police power regulation is not enacted in furtherance of the public health, safety, morals, or general welfare so that there may be no "public use." Although the government entity may not be forced to pay just compensation under the Fifth Amendment, the landowner may nevertheless have a damages cause of action under 42 U.S.C. § 1983 for a Fourteenth Amendment due process violation.
24
Contrary to the suggestion of amici, see, e. g., Brief for the National Trust for Historic Preservation et al. as Amici Curiae 13-16, this is not a case involving implication of a damages remedy—The words of the Just Compensation Clause are express.
25
See generally D. Hagman & Misczynski, Windfalls for Wipeouts 296-297 (1978); Bosselman, The Third Alternative in Zoning Litigation, 17 Zoning Digest 113, 114-119 (1965). The general notion of compensating landowners for regulations which go too far has received much attention in land-use planning literature. See, e. g., Costonis, "Fair" Compensation and the Accommodation Power: Antidotes for the Taking Impasse in Land Use Controversies, 75 Colum.L.Rev. 1021 (1975); R. Babcock, The Zoning Game 168-172 (1966); Krasnowiecki & Paul, The Preservation of Open Space in Metropolitan Areas, 110 U.Pa.L.Rev. 179, 198-239 (1961). See also American Law Institute, A Model Land Development Code §§ 5-303, 5-304, pp. 202-207 (1975); Town and Country Planning Act, 1947, 10 & 11 Geo. 6, ch. 51, § 19.
26
Even if I were to concede a role for policy considerations, I am not so sure that they would militate against requiring payment of just compensation. Indeed, land-use planning commentators have suggested that the threat of financial liability for unconstitutional police power regulations would help to produce a more rational basis of decisionmaking that weighs the costs of restrictions against their benefits. Dunham, From Rural Enclosure to Re-Enclosure of Urban Land, 35 N.Y.U.L.Rev. 1238, 1253-1254 (1960). Such liability might also encourage municipalities to err on the constitutional side of police power regulations, and to develop internal rules and operating procedures to minimize overzealous regulatory attempts. Cf. Owen v. City of Independence, 445 U.S. 622, 651-652, 100 S.Ct. 1398, 1415, 63 L.Ed.2d 673 (1980). After all, a policeman must know the Constitution, then why not a planner? In any event, one may wonder as an empirical matter whether the threat of just compensation will greatly impede the efforts of planners. Cf. id., at 656, 100 S.Ct., at 1418.
27
Because the California Court of Appeal, Fourth District, followed the instructions of the California Supreme Court and held that the city's regulation, however arbitrary or excessive, could not effect a "taking," the Court of Appeal did not address the issue whether San Diego's course of conduct in fact effected a "taking" of appellant's property. I would not reach that issue here, but leave it open for the Court of Appeal on remand initially to decide that question on its review of the Superior Court's judgment.
| 34
|
450 U.S. 662
101 S.Ct. 1309
67 L.Ed.2d 580
Raymond KASSEL et al., Appellants,v.CONSOLIDATED FREIGHTWAYS CORPORATION OF DELAWARE.
No. 79-1320.
Argued Nov. 4, 1980.
Decided March 24, 1981.
Syllabus
Unlike all other States in the West and Midwest, Iowa by statute generally prohibits the use of 65-foot double-trailer trucks within its borders, allowing the use of 55-foot single-trailer trucks and 60-foot double-trailer trucks. Appellee, a trucking company which carries commodities through Iowa on interstate highways, filed suit alleging that Iowa's statutory scheme unconstitutionally burdens interstate commerce. Because appellee cannot use its 65-foot doubles to move goods through Iowa, it must either use shorter truck units, detach the trailers of a 65-foot double and shuttle each through Iowa separately, or divert 65-foot doubles around Iowa. Iowa defended the law as a reasonable safety measure, asserting that 65-foot doubles are more dangerous than 55-foot singles and that in any event the law promotes safety and reduces road wear within the State by diverting much truck traffic to other States. The District Court found that the evidence established that 65-foot doubles were as safe as the shorter truck units, and held that the state law impermissibly burdened interstate commerce. The Court of Appeals affirmed.
Held : The judgment is affirmed. Pp. 669-679; 679-687.
612 F.2d 1064, affirmed.
Justice POWELL, joined by Justice WHITE, Justice BLACKMUN, and Justice STEVENS, concluded that the Iowa truck-length limitations unconstitutionally burden interstate commerce. See Raymond Motor Transportation, Inc. v. Rice, 434 U.S. 429, 98 S.Ct. 787, 54 L.Ed.2d 664. Pp. 669-679.
(a) The Commerce Clause itself, even without congressional implementation, is a limitation upon state power to regulate commerce. While "the Court has been most reluctant to invalidate" state regulations that touch upon safety—especially highway safety the constitutionality of such regulations nevertheless depends on "a sensitive consideration of the weight and nature of the state regulatory concern in light of the extent of the burden imposed on the course of interstate commerce." Raymond, supra, at 443, 441, 98 S.Ct. at 794. Pp. 669-671.
(b) Since Iowa's safety interest has not been demonstrated, and since its regulations impair significantly the federal interest in efficient and safe interstate transportation, the Iowa law cannot be harmonized with the Commerce Clause. The record, including statistical studies, supports the District Court's finding that 65-foot doubles are as safe as 55-foot singles. And appellee demonstrated that Iowa's law substantially burdens interstate commerce. In addition to the increased costs of trucking companies in routing 65-foot doubles around Iowa or using small truck units through the State, Iowa's law may aggravate, rather than ameliorate, the problem of highway accidents. Iowa's restriction—resulting in either more smaller trucks being driven through Iowa or the same number of larger trucks being driven longer distances to bypass Iowa—requires more highway miles to be driven to transport the same quantity of goods. Other things being equal, accidents are proportional to distance traveled. Thus, if 65-foot doubles are as safe as 55-foot singles, Iowa's law tends to increase the number of accidents, and to shift their incidence from Iowa to other States. Pp. 671-678.
(c) While the Court normally accords "special deference" to a state legislature's judgment in enacting highway regulations, Raymond, supra, at 444, n.18, 98 S.Ct. 785, n.18, less deference is due where, as here, the local regulation bears disproportionately on out-of-state residents and businesses. Exemptions in Iowa's statutory scheme—particularly those permitting single-trailer trucks hauling livestock or farm vehicles to be as long as 60 feet, and permitting cities abutting other States to enact local ordinances to adopt the larger length limitation of the neighboring State and thus allow otherwise oversized trucks within the city limits and in nearby commercial zones—secure to Iowans many of the benefits of large trucks while shunting to neighboring States many of the costs associated with their use. Moreover, the history of the "border cities exemption" suggests that Iowa's statute may not have been designed to ban dangerous trucks, but rather to discourage interstate truck traffic. A State cannot constitutionally promote its own parochial interests by requiring safe vehicles to detour round it. Pp. 675-678.
Justice BRENNAN, joined by Justice MARSHALL, concluded that in considering a Commerce Clause challenge to a state regulation, the judicial task is to balance the burden imposed on commerce against the local benefits sought to be achieved by the State's lawmakers. It is not the function of the court to decide whether in fact the regulation promote its intended purpose, so long as an examination of the evidence before or available to the lawmaker indicates that the regulation is not wholly irrational in light of its purposes. Here, the safety advantages and disadvantages of the different types and lengths of trucks involved need not be analyzed, since the record and the legislative history of the Iowa regulation establish that those differences were irrelevant to Iowa's decision to maintain its regulation. Rather, Iowa sought to discourage interstate truck traffic on its highways. This purpose, being protectionist in nature, is impermissible under the Commerce Clause. Iowa may not shunt off its fair share of the burden of maintaining interstate truck routes, nor may it create increased hazards on the highways of neighboring States in order to decrease the hazards on Iowa highways. Pp. 679-687.
Mark E. Schantz, Sol.Gen of Iowa, Des Moines, Iowa, for appellants.
John H. Lederer, Madison, Wis., for appellee.
Justice POWELL announced the judgment of the Court and delivered an opinion, in which Justice WHITE, Justice BLACKMUN, and Justice STEVENS joined.
1
The question is whether an Iowa statute that prohibits the use of certain large trucks within the State unconstitutionally burdens interstate commerce.
2
* Appellee Consolidated Freightways Corporation of Delaware (Consolidated) is one of the largest common carriers in the country. It offers service in 48 States under a certificate of public convenience and necessity issued by the Interstate Commerce Commission. Among other routes, Consolidated carries commodities through Iowa on Interstate 80, the principal east-west route linking New York, Chicago, and the west coast, and on Interstate 35, a major north-south route.
3
Consolidated mainly uses two kinds of trucks. One consists of a three-axle tractor pulling a 40-foot two-axle trailer. This unit, commonly called a single, or "semi," is 55 feet in length overall. Such trucks have long been used on the Nation's highways. Consolidated also uses a two-axle tractor pulling a single-axle trailer which, in turn, pulls a single-axle dolly and a second single-axle trailer. This combination, known as a double, or twin, is 65 feet long overall.1 Many trucking companies, including Consolidated, increasingly prefer to use doubles to ship certain kinds of commodities. Doubles have larger capacities, and the trailers can be detached and routed separately if necessary. Consolidated would like to use 65-foot doubles on many of its trips through Iowa.
4
The State of Iowa, however, by statute restricts the length of vehicles that may use its highways. Unlike all other States in the West and Midwest, App. 605, Iowa generally prohibits the use of 65-foot doubles within its borders. Instead, most truck combinations are restricted to 55 feet in length. Doubles,2 mobile homes,3 trucks carrying vehicles such as tractors and other farm equipment,4 and singles hauling livestock,5 are permitted to be as long as 60 feet. Notwithstanding these restrictions, Iowa's statute permits cities abutting the state line by local ordinance to adopt the length limitations of the adjoining State. Iowa Code § 321.457(7) (1979). Where a city has exercised this option, otherwise oversized trucks are permitted within the city limits and in nearby commercial zones. Ibid.6
5
Iowa also provides for two other relevant exemptions. An Iowa truck manufacturer may obtain a permit to ship trucks that are as large as 70 feet. Iowa Code § 321E.10 (1979). Permits also are available to move oversized mobile homes, provided that the unit is to be moved from a point within Iowa or delivered for an Iowa resident. § 321E.28(5).7
6
Because of Iowa's statutory scheme, Consolidated cannot use its 65-foot doubles to move commodities through the State. Instead, the company must do one of four things: (i) use 55-foot singles; (ii) use 60-foot doubles; (iii) detach the trailers of a 65-foot double and shuttle each through the State separately; or (iv) divert 65-foot doubles around Iowa.
7
Dissatisfied with these options, Consolidated filed this suit in the District Court averring that Iowa's statutory scheme unconstitutionally burdens interstate commerce.8 Iowa defended the law as a reasonable safety measure enacted pursuant to its police power. The State asserted that 65-foot doubles are more dangerous than 55-foot singles and, in any event, that the law promotes safety and reduces road wear within the State by diverting much truck traffic to other States.9
8
In a 14-day trial, both sides adduced evidence on safety, and on the burden on interstate commerce imposed by Iowa's law. On the question of safety, the District Court found that the "evidence clearly establishes that the twin is as safe as the semi." 475 F.Supp. 544, 549 (SD Iowa 1979). For that reason,
9
"there is no valid safety reason for barring twins from Iowa's highways because of their configuration.
10
"The evidence convincingly, if not overwhelmingly, establishes that the 65 foot twin is as safe as, if not safer than, the 60 foot twin and the 55 foot semi. . . .
11
* * * * *
12
"Twins and semis have different characteristics. Twins are more maneuverable, are less sensitive to wind, and create less splash and spray. However, they are more likely than semis to jackknife or upset. They can be backed only for a short distance. The negative characteristics are not such that they render the twin less safe than semis overall. Semis are more stable but are more likely to 'rear end' another vehicle." Id., at 548-549.
13
In light of these findings, the District Court applied the standard we enunciated in Raymond Motor Transportation, Inc. v. Rice, 434 U.S. 429, 98 S.Ct. 787, 54 L.Ed.2d 664 (1978), and concluded that the state law impermissibly burdened interstate commerce:
14
"[T]he balance here must be struck in favor of the federal interests. The total effect of the law as a safety measure in reducing accidents and casualties is so slight and problematical that it does not outweigh the national interest in keeping interstate commerce free from interferences that seriously impede it." 475 F.Supp., at 551 (emphasis in original).
15
The Court of Appeals for the Eighth Circuit affirmed. 612 F.2d 1064 (1979). It accepted the District Court's finding that 65-foot doubles were as safe as 55-foot singles. Id., at 1069. Thus, the only apparent safety benefit to Iowa was that resulting from forcing large trucks to detour around the State, thereby reducing overall truck traffic on Iowa's highways. The Court of Appeals noted that this was not a constitutionally permissible interest. Id., at 1070. It also commented that the several statutory exemptions identified above, such as those applicable to border cities and the shipment of livestock, suggested that the law in effect benefited Iowa residents at the expense of interstate traffic. Id., at 1070-1071. The combination of these exemptions weakened the presumption of validity normally accorded a state safety regulation. For these reasons, the Court of Appeals agreed with the District Court that the Iowa statute unconstitutionally burdened interstate commerce.
16
Iowa appealed, and we noted probable jurisdiction. 446 U.S. 950, 100 S.Ct. 2915, 64 L.Ed.2d 806 (1980). We now affirm.
II
17
It is unnecessary to review in detail the evolution of the principles of Commerce Clause adjudication. The Clause is both a "prolific sourc[e] of national power and an equally prolific source of conflict with legislation of the state[s]." H. P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 534, 69 S.Ct. 657, 663, 93 L.Ed. 865 (1949). The Clause permits Congress to legislate when it perceives that the national welfare is not furthered by the independent actions of the States. It is now well established, also, that the Clause itself is "a limitation upon state power even without congressional implementation." Hunt v. Washington Apple Advertising Comm'n, 432 U.S. 333, 350, 97 S.Ct. 2434, 2445, 53 L.Ed.2d 383 (1977). The Clause requires that some aspects of trade generally must remain free from interference by the States. When a State ventures excessively into the regulation of these aspects of commerce, it "trespasses upon national interests," Great A & P Tea Co. v. Cottrell, 424 U.S. 366, 373, 96 S.Ct. 923, 928, 47 L.Ed.2d 55 (1976), and the courts will hold the state regulation invalid under the Clause alone.
18
The Commerce Clause does not, of course, invalidate all state restrictions on commerce. It has long been recognized that, "in the absence of conflicting legislation by Congress, there is a residuum of power in the state to make laws governing matters of local concern which nevertheless in some measure affect interstate commerce or even, to some extent, regulate it." Southern Pacific Co. v. Arizona, 325 U.S. 761, 767, 65 S.Ct. 1515, 1519, 89 L.Ed. 1915 (1945). The extent of permissible state regulation is not always easy to measure. It may be said with confidence, however, that a State's power to regulate commerce is never greater than in matters traditionally of local concern. Washington Apple Advertising Comm'n, supra, 432 U.S., at 350, 97 S.Ct. at 2445. For example, regulations that touch upon safety—especially highway safety—are those that "the Court has been most reluctant to invalidate." Raymond, supra, 434 U.S., at 443, 98 S.Ct., at 795; accord, Railway Express Agency, Inc. v. New York, 336 U.S. 106, 109, 69 S.Ct. 463, 465, 93 L.Ed. 533 (1949); South Carolina State Highway Dept. v. Barnwell Brothers, Inc., 303 U.S. 177, 187, 58 S.Ct. 510, 514, 82 L.Ed. 734 (1938); Sproles v. Binford,, 286 U.S. 374, 390, 52 S.Ct. 581, 585, 76 L.Ed. 1167 (1932); Hendrick v. Maryland, 235 U.S. 610, 622, 35 S.Ct. 140, 142, 59 L.Ed. 385 (1915). Indeed, "if safety justifications are not illusory, the Court will not second-guess legislative judgment about their importance in comparison with related burdens on interstate commerce." Raymond, supra, 434 U.S., at 449, 98 S.Ct., at 798 (BLACKMUN, J., concurring). Those who would challenge such bona fide safety regulations must overcome a "strong presumption of validity." Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520, 524, 79 S.Ct. 962, 964, 3 L.Ed.2d 1003 (1959).
19
But the incantation of a purpose to promote the public health or safety does not insulate a state law from Commerce Clause attack. Regulations designed for that salutary purpose nevertheless may further the purpose so marginally, and interfere with commerce so substantially, as to be invalid under the Commerce Clause. In the Court's recent unanimous decision in Raymond,10 we declined to "accept the State's contention that the inquiry under the Commerce Clause is ended without a weighing of the asserted safety purpose against the degree of interference with interstate commerce." 434 U.S., at 443, 98 S.Ct., at 795. This "weighing" by a court requires—and indeed the constitutionality of the state regulation depends on—"a sensitive consideration of the weight and nature of the state regulatory concern in light of the extent of the burden imposed on the course of interstate commerce." Id., at 441, 98 S.Ct., at 794; accord, Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970); Bibb, supra, 359 U.S., at 525-530, 79 S.Ct., at 965-968; Southern Pacific, supra, 325 U.S., at 770, 65 S.Ct., at 1521.
III
20
Applying these general principles, we conclude that the Iowa truck-length limitations unconstitutionally burden interstate commerce.
21
In Raymond Motor Transportation, Inc. v. Rice, the Court held that a Wisconsin statute that precluded the use of 65-foot doubles violated the Commerce Clause. This case is Raymond revisited. Here, as in Raymond, the State failed to present any persuasive evidence that 65-foot doubles are less safe than 55-foot singles. Moreover, Iowa's law is now out of step with the laws of all other Midwestern and Western States. Iowa thus substantially burdens the interstate flow of goods by truck. In the absence of congressional action to set uniform standards,11 some burdens associated with state safety regulations must be tolerated. But where, as here, the State's safety interest has been found to be illusory, and its regulations impair significantly the federal interest in efficient and safe interstate transportation, the state law cannot be harmonized with the Commerce Clause.12
22
Iowa made a more serious effort to support the safety rationale of its law than did Wisconsin in Raymond, but its effort was no more persuasive. As noted above, the District Court found that the "evidence clearly establishes that the twin is as safe as the semi." The record supports this finding.
23
The trial focused on a comparison of the performance of the two kinds of trucks in various safety categories. The evidence showed, and the District Court found, that the 65-foot double was at least the equal of the 55-foot single in the ability to brake, turn, and maneuver. The double, because of its axle placement, produces less splash and spray in wet weather.13 And, because of its articulation in the middle, the double is less susceptible to dangerous "off-tracking,"14 and to wind.
24
None of these findings is seriously disputed by Iowa. Indeed, the State points to only three ways in which the 55-foot single is even arguably superior: singles take less time to be passed and to clear intersections; they may back up for longer distances; and they are somewhat less likely to jackknife.
25
The first two of these characteristics are of limited relevance on modern interstate highways. As the District Court found, the negligible difference in the time required to pass, and to cross intersections, is insignificant on 4-lane divided highways because passing does not require crossing into oncoming traffic lanes, Raymond, 434 U.S., at 444, 98 S.Ct., at 795, and interstates have few, if any, intersections. The concern over backing capability also is insignificant because it seldom is necessary to back up on an interstate.15 In any event, no evidence suggested any difference in backing capability between the 60-foot doubles that Iowa permits and the 65-foot doubles that it bans. Similarly, although doubles tend to jackknife somewhat more than singles, 65-foot doubles actually are less likely to jackknife than 60-foot doubles.
26
Statistical studies supported the view that 65-foot doubles are at least as safe overall as 55-foot singles and 60-foot doubles. One such study, which the District Court credited, reviewed Consolidated's comparative accident experience in 1978 with its own singles and doubles. Each kind of truck was driven 56 million miles on identical routes. The singles were involved in 100 accidents resulting in 27 injuries and one fatality. The 65-foot doubles were involved in 106 accidents resulting in 17 injuries and one fatality. Iowa's expert statistician admitted that this study provided "moderately strong evidence" that singles have a higher injury rate than doubles. App. 488. Another study, prepared by the Iowa Department of Transportation at the request of the state legislature, concluded that "[s]ixty-five foot twin trailer combinations have not been shown by experiences in other states to be less safe than 60 foot twin trailer combinations or conventional tractor-semitrailers" (emphasis in original). Id., at 584. Numerous insurance company executives, and transportation officials from the Federal Government and various States, testified that 65-foot doubles were at least as safe as 55-foot singles. Iowa concedes that it can produce no study that establishes a statistically significant difference in safety between the 65-foot double and the kinds of vehicles the State permits. Brief for Appellants 28, 32. Nor, as the District Court noted, did Iowa present a single witness who testified that 65-foot doubles were more dangerous overall than the vehicles permitted under Iowa law. 475 F.Supp., at 549. In sum, although Iowa introduced more evidence on the question of safety than did Wisconsin in Raymond, the record as a whole was not more favorable to the State.16
B
27
Consolidated, meanwhile, demonstrated that Iowa's law substantially burdens interstate commerce. Trucking companies that wish to continue to use 65-foot doubles must route them around Iowa or detach the trailers of the doubles and ship them through separately. Alternatively, trucking companies must use the smaller 55-foot singles or 60-foot doubles permitted under Iowa law. Each of these options engenders inefficiency and added expense. The record shows that Iowa's law added about $12.6 million each year to the costs of trucking companies. Consolidated alone incurred about $2 million per year in increased costs.
28
In addition to increasing the costs of the trucking companies (and, indirectly, of the service to consumers), Iowa's law may aggravate, rather than ameliorate, the problem of highway accidents. Fifty-five foot singles carry less freight than 65-foot doubles. Either more small trucks must be used to carry the same quantity of goods through Iowa, or the same number of larger trucks must drive longer distances to bypass Iowa. In either case, as the District Court noted, the restriction requires more highway miles to be driven to transport the same quantity of goods. Other things being equal, accidents are proportional to distance traveled. See App. 604, 615.17 Thus, if 65-foot doubles are as safe as 55-foot singles, Iowa's law tends to increase the number of accidents, and to shift the incidence of them from Iowa to other States.18
IV
29
Perhaps recognizing the weakness of the evidence supporting its safety argument, and the substantial burden on commerce that its regulations create, Iowa urges the Court simply to "defer" to the safety judgment of the State. It argues that the length of trucks is generally, although perhaps imprecisely, related to safety. The task of drawing a line is one that Iowa contends should be left to its legislature.
30
The Court normally does accord "special deference" to state highway safety regulations. Raymond, 434 U.S., at 444, n. 18, 98 S.Ct., at 795, n.18. This traditional deference "derives in part from the assumption that where such regulations do not discriminate on their face against interstate commerce, their burden usually falls on local economic interests as well as other States' economic interests, thus insuring that a State's own political processes will serve as a check against unduly burdensome regulations." Ibid. Less deference to the legislative judgment is due, however, where the local regulation bears disproportionately on out-of-state residents and businesses. Such a disproportionate burden is apparent here. Iowa's scheme, although generally banning large doubles from the State, nevertheless has several exemptions that secure to Iowans many of the benefits of large trucks while shunting to neighboring States many of the costs associated with their use.19
31
At the time of trial there were two particularly significant exemptions. First, singles hauling livestock or farm vehicles were permitted to be as long as 60 feet. Iowa Code §§ 321.457(5), 321.457(3) (1979). As the Court of Appeals noted, this provision undoubtedly was helpful to local interests. Cf. Raymond, supra, 434 U.S., at 434, 98 S.Ct., at 790 (exemption in Wisconsin for milk shippers). Second cities abutting other States were permitted to enact local ordinances adopting the larger length limitation of the neighboring State. Iowa Code § 321.457(7) (1979). This exemption offered the benefits of longer trucks to individuals and businesses in important border cities20 without burdening Iowa's highways with interstate through traffic.21 Cf. Raymond, supra, at 446-447, and n. 24, 98 S.Ct., at 796, and n. 24 (exemption in Wisconsin for shipments from local plants).22
32
The origin of the "border cities exemption" also suggests that Iowa's statute may not have been designed to ban dangerous trucks, but rather to discourage interstate truck traffic. In 1974, the legislature passed a bill that would have permitted 65-foot doubles in the State. See n. 6, supra. Governor Ray vetoed the bill. He said:
33
"I find sympathy with those who are doing business in our state and whose enterprises could gain from increased cargo carrying ability by trucks. However, with this bill, the Legislature has pursued a course that would benefit only a few Iowa-based companies while providing a great advantage for out-of-state trucking firms and competitors at the expense of our Iowa citizens." App. 626.23
34
After the veto, the "border cities exemption" was immediately enacted and signed by the Governor.
35
It is thus far from clear that Iowa was motivated primarily by a judgment that 65-foot doubles are less safe than 55-foot singles. Rather, Iowa seems to have hoped to limit the use of its highways by deflecting some through traffic.24 In the District Court and Court of Appeals, the State explicitly attempted to justify the law by its claimed interest in keeping trucks out of Iowa. See n. 9 and accompanying text, supra. The Court of Appeals correctly concluded that a State cannot constitutionally promote its own parochial interests by requiring safe vehicles to detour around it. 612 F.2d, at 1070.
V
36
In sum, the statutory exemptions, their history, and the arguments Iowa has advanced in support of its law in this litigation, all suggest that the deference traditionally accorded a State's safety judgment is not warranted. See Raymond, supra, 434 U.S., at 444, and n. 18, 446-447, 98 S.Ct., at 795 and n. 18, 796-797.25 The controlling factors thus are the findings of the District Court, accepted by the Court of Appeals, with respect to the relative safety of the types of trucks at issue, and the substantiality of the burden on interstate commerce.
37
Because Iowa has imposed this burden without any significant countervailing safety interest,26 its statute violates the Commerce Clause.27 The judgment of the Court of Appeals is affirmed.28
38
It is so ordered.
39
Justice BRENNAN, with whom Justice MARSHALL joins, concurring in the judgment.
40
Iowa's truck-length regulation challenged in this case is nearly identical to the Wisconsin regulation struck down in Raymond Motor Transportation, Inc. v. Rice, 434 U.S. 429, 98 S.Ct. 787, 54 L.Ed.2d 664 (1978), as in violation of the Commerce Clause. In my view the same Commerce Clause restrictions that dictated that holding also require invalidation of Iowa's regulation insofar as it prohibits 65-foot doubles.
41
The reasoning bringing me to that conclusion does not require, however, that I engage in the debate between my Brothers POWELL and REHNQUIST over what the District Court record shows on the question whether 65-foot doubles are more dangerous than shorter trucks. With all respect, my Brothers ask and answer the wrong question.
42
For me, analysis of Commerce Clause challenges to state regulations must take into account three principles: (1) The courts are not empowered to second-guess the empirical judgments of lawmakers concerning the utility of legislation. (2) The burdens imposed on commerce must be balanced against the local benefits actually sought to be achieved by the State's lawmakers, and not against those suggested after the fact by counsel. (3) Protectionist legislation is unconstitutional under the Commerce Clause, even if the burdens and benefits are related to safety rather than economics.
43
* Both the opinion of my Brother POWELL and the opinion of my Brother REHNQUIST are predicated upon the supposition that the constitutionality of a state regulation is determined by the factual record created by the State's lawyers in trial court. But that supposition cannot be correct, for it would make the constitutionality of state laws and regulations depend on the vagaries of litigation rather than on the judgments made by the State's lawmakers.
44
In considering a Commerce Clause challenge to a state regulation, the judicial task is to balance the burden imposed on commerce against the local benefits sought to be achieved by the State's lawmakers. See Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970). In determining those benefits, a court should focus ultimately on the regulatory purposes identified by the lawmakers and on the evidence before or available to them that might have supported their judgment. See generally, Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464, 473, 101 S.Ct. 715, 724, 729, 66 L.Ed.2d 659 (1981). Since the court must confine its analysis to the purposes the lawmakers had for maintaining the regulation, the only relevant evidence concerns whether the lawmakers could rationally have believed that the challenged regulation would foster those purposes. See Locomotive Firemen v. Chicago, R. I. & P. R. Co., 393 U.S. 129, 138-139, 89 S.Ct. 323, 327-328, 21 L.Ed.2d 289 (1968); South Carolina State Highway Dept. v. Barnwell Bros., Inc., 303 U.S. 177, 192-193, 58 S.Ct. 510, 517-518, 82 L.Ed. 734 (1938). It is not the function of the court to decide whether in fact the regulation promotes its intended purpose, so long as an examination of the evidence before or available to the lawmaker indicates that the regulation is not wholly irrational in light of its purposes. See Minnesota v. Clover Leaf Creamery Co., supra, at 469, 473, 101 S.Ct., at 726, 729.1
II
45
My Brothers POWELL and REHNQUIST make the mistake of disregarding the intention of Iowa's lawmakers and assuming that resolution of the case must hinge upon the argument offered by Iowa's attorneys: that 65-foot doubles are more dangerous than shorter trucks. They then canvass the factual record and findings of the courts below and reach opposite conclusions as to whether the evidence adequately supports that empirical judgment. I repeat: my Brothers POWELL and REHNQUIST have asked and answered the wrong question. For although Iowa's lawyers in this litigation have defended the truck-length regulation on the basis of the safety advantages of 55-foot singles and 60-foot doubles over 65-foot doubles, Iowa's actual rationale for maintaining the regulation had nothing to do with these purported differences. Rather, Iowa sought to discourage interstate truck traffic on Iowa's highways.2 Thus, the safety advantages and disadvantages of the types and lengths of trucks involved in this case are irrelevant to the decision.3
46
My Brother POWELL concedes that "[i]t is . . . far from clear that Iowa was motivated primarily by a judgment that 65-foot doubles are less safe than 55-foot singles. Rather, Iowa seems to have hoped to limit the use of its highways by deflecting some through traffic." Ante, at 677. This conclusion is more than amply supported by the record and the legislative history of the Iowa regulation. The Iowa Legislature has consistently taken the position that size, weight, and speed restrictions on interstate traffic should be set in accordance with uniform national standards. The stated purpose was not to further safety but to achieve uniformity with other States. The Act setting the limitations challenged in this case, passed in 1947 and periodically amended since then, is entitled "An Act to promote uniformity with other states in the matter of limitations on the size, weight and speed of motor vehicles. . . ." 1947 Iowa Acts, ch. 177 (emphasis added). Following the proposals of the American Association of State Highway and Transportation Officials, the State has gradually increased the permissible length of trucks from 45 feet in 1947 to the present limit of 60 feet.
47
In 1974, the Iowa Legislature again voted to increase the permissible length of trucks to conform to uniform standards then in effect in most other States. This legislation, Bill 671, would have increased the maximum length of twin trailer trucks operable in Iowa from 60 to 65 feet. But Governor Ray broke from prior state policy, and vetoed the legislation. The legislature did not override the veto, and the present regulation was thus maintained. In his veto,4 Governor Ray did not rest his decision on the conclusion that 55-foot singles and 60-foot doubles are any safer than 65-foot doubles, or on any other safety consideration inherent in the type or size of the trucks. Rather, his principal concern was that to allow 65-foot doubles would "basically ope[n] our state to literally thousands and thousands more trucks per year." App. 628. This increase in interstate truck traffic would, in the Governor's estimation, greatly increase highway maintenance costs, which are borne by the citizens of the State, id., at 628-629, and increase the number of accidents and fatalities within the State. Id., at 628. The legislative response was not to override the veto, but to accede to the Governor's action, and in accord with his basic premise, to enact a "border cities exemption." This permitted cities within border areas to allow 65-foot doubles while otherwise maintaining the 60-foot limit throughout the State to discourage interstate truck traffic.
48
Although the Court has stated that "[i]n no field has . . . deference to state regulation been greater than that of highway safety," Raymond Motor Transportation, Inc. v. Rice, 434 U.S., at 443, 98 S.Ct., at 795, it has declined to go so far as to presume that size restrictions are inherently tied to public safety. Id., at 444, n. 19, 98 S.Ct., at 795, n. 19. The Court has emphasized that the "strong presumption of validity" of size restrictions "cannot justify a court in closing its eyes to uncontroverted evidence of record," ibid.—here the obvious fact that the safety characteristics of 65-foot doubles did not provide the motivation for either legislators or Governor in maintaining the regulation.
III
49
Though my Brother POWELL recognizes that the State's actual purpose in maintaining the truck-length regulation was "to limit the use of its highways by deflecting some through traffic," ante, at 677, he fails to recognize that this purpose, being protectionist in nature, is impermissible under the Commerce Clause.5 The Governor admitted that he blocked legislative efforts to raise the length of trucks because the change "would benefit only a few Iowa-based companies while providing a great advantage for out-of-state trucking firms and competitors at the expense of our Iowa citizens." App. 626; see also id., at 185-186. Appellant Raymond Kassel, Director of the Iowa Department of Transportation, while admitting that the greater 65-foot length standard would be safer overall, defended the more restrictive regulations because of their benefits within Iowa :
50
"Q: Overall, there would be fewer miles of operation, fewer accidents and fewer fatalities?
51
"A: Yes, on the national scene.
52
"Q: Does it not concern the Iowa Department of Transportation that banning 65-foot twins causes more accidents, more injuries and more fatalities?
53
"A: Do you mean outside of our state border?
54
"Q: Overall.
55
"A: Our primary concern is the citizens of Iowa and our own highway system we operate in this state." Id., at 281.
56
The regulation has had its predicted effect. As the District Court found:
57
"Iowa's length restriction causes the trucks affected by the ban to travel more miles over more dangerous roads in other states which means a greater overall exposure to accidents and fatalities. More miles of highway are subjected to wear. More fuel is consumed and greater transportation costs are incurred." 475 F.Supp. 544, 550 (SD Iowa 1979).
58
Iowa may not shunt off its fair share of the burden of maintaining interstate truck routes, nor may it create increased hazards on the highways of neighboring States in order to decrease the hazards on Iowa highways. Such an attempt has all the hallmarks of the "simple . . . protectionism" this Court has condemned in the economic area. Philadelphia v. New Jersey, 437 U.S. 617, 624, 98 S.Ct. 2531, 2535, 57 L.Ed.2d 475 (1978). Just as a State's attempt to avoid interstate competition in economic goods may damage the prosperity of the Nation as a whole, so Iowa's attempt to deflect interstate truck traffic has been found to make the Nation's highways as a whole more hazardous. That attempt should therefore be subject to "a virtually per se rule of invalidity." Ibid.
59
This Court's heightened deference to the judgments of state lawmakers in the field of safety, see ante, at 670, is largely attributable to a judicial disinclination to weigh the interests of safety against other societal interests, such as the economic interest in the free flow of commerce. Thus, "if safety justifications are not illusory, the Court will not secondguess legislative judgment about their importance in comparison with related burdens on interstate commerce." Raymond Motor Transportation, Inc. v. Rice, supra, at 449, 98 S.Ct., at 798 (BLACKMUN, J., concurring) (emphasis added). Here, the decision of Iowa's lawmakers to promote Iowa's safety and other interests at the direct expense of the safety and other interests of neighboring States merits no such deference. No special judicial acuity is demanded to perceive that this sort of parochial legislation violates the Commerce Clause. As Justice Cardozo has written, the Commerce Clause "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." Baldwin v. G. A. F. Seelig, Inc., 294 U.S. 511, 523, 55 S.Ct. 497, 500, 79 L.Ed. 1032 (1935).
60
I therefore concur in the judgment.
61
Justice REHNQUIST, with whom THE CHIEF JUSTICE and Justice STEWART join, dissenting.
62
The result in this case suggests, to paraphrase Justice Jackson, that the only state truck-length limit "that is valid is one which this Court has not been able to get its hands on." Jungersen v. Ostby & Barton Co., 335 U.S. 560, 572, 69 S.Ct. 269, 274, 93 L.Ed. 235 (1949) (dissenting opinion). Although the plurality opinion and the opinion concurring in the judgment strike down Iowa's law by different routes, I believe the analysis in both opinions oversteps our "limited authority to review state legislation under the commerce clause," Locomotive Firemen v. Chicago, R. I. & P. R. Co., 393 U.S. 129, 136, 89 S.Ct. 323, 326, 21 L.Ed.2d 289 (1968), and seriously intrudes upon the fundamental right of the States to pass laws to secure the safety of their citizens. Accordingly, I dissent.
63
* It is necessary to elaborate somewhat on the facts as presented in the plurality opinion to appreciate fully what the Court does today. Iowa's action in limiting the length of trucks which may travel on its highways is in no sense unusual. Every State in the Union regulates the length of vehicles permitted to use the public roads. Nor is Iowa a renegade in having length limits which operate to exclude the 65-foot doubles favored by Consolidated. These trucks are prohibited in other areas of the country as well, some 17 States and the District of Columbia, including all of New England and most of the Southeast.1 While pointing out that Consolidated carries commodities through Iowa on Interstate 80, "the principal east-west route linking New York, Chicago, and the west coast," ante, at 665, the plurality neglects to note that both Pennsylvania and New Jersey, through which Interstate 80 runs before reaching New York, also ban 65-foot doubles. In short, the persistent effort in the plurality opinion to paint Iowa as an oddity standing alone to block commerce carried in 65-foot doubles is simply not supported by the facts.
64
Nor does the plurality adequately convey the extent to which the lower courts permitted the 65-foot doubles to operate in Iowa. Consolidated sought to have the 60-foot length limit declared an unconstitutional burden on commerce when applied to the seven Interstate Highways in Iowa2 and "access routes to and from Plaintiff's terminals, and reasonable access from said Interstate Highways to facilities for food, fuel, repairs, or rest." App. 10. The lower courts granted this relief, permitting the 65-foot doubles to travel off the Interstates as far as five miles for access to terminal and other facilities, or less if closer facilities were available. 475 F.Supp. 544, 553-554 (S.D.Iowa 1979). To the extent the plurality relies on characteristics of the Interstate Highways in rejecting Iowa's asserted safety justifications, see ante, at 672-673, it fails to recognize the scope of the District Court order it upholds.
65
With these additions to the relevant facts, we can now examine the appropriate analysis to be applied.
II
66
Casual readers of this Court's Commerce Clause decisions may be surprised, upon turning to the Constitution itself, to discover that the Clause in question simply provides that "The Congress shall have Power . . . To regulate Commerce . . . among the several States." Art. I, § 8, cl. 3. Although it is phrased in terms of an affirmative grant of power to the National Legislature, we have read the Commerce Clause as imposing some limitations on the States as well, even in the absence of any action by Congress. See Philadelphia v. New Jersey, 437 U.S. 617, 623, 98 S.Ct. 2531, 2535, 57 L.Ed.2d 475 (1978). The Court has hastened to emphasize, however, that the negative implication it has discerned in the Commerce Clause does not invalidate state legislation simply because the legislation burdens interstate commerce.
67
"In determining whether the state has imposed an undue burden on interstate commerce, it must be borne in mind that the Constitution when 'conferring upon Congress the regulation of commerce, . . . never intended to cut the States off from legislating on all subjects relating to the health, life, and safety of their citizens, though the legislation might indirectly affect the commerce of the country.' " Huron Portland Cement Co. v. Detroit, 362 U.S. 440, 443-444, 80 S.Ct. 813, 815, 4 L.Ed.2d 852 (1960) (quoting Sherlock v. Alling, 93 U.S. 99, 103, 23 L.Ed. 819, 823 (1876)).
68
See Raymond Motor Transportation, Inc. v. Rice, 434 U.S. 429, 440, 98 S.Ct. 787, 793, 54 L.Ed.2d 664 (1978); Southern Pacific Co. v. Arizona, 325 U.S. 761, 767, 65 S.Ct. 1515, 1519, 89 L.Ed. 1915 (1945). The Commerce Clause is, after all, a grant of authority to Congress, not to the courts. Although the Court when it interprets the "dormant" aspect of the Commerce Clause will invalidate unwarranted state intrusion, such action is a far cry from simply undertaking to regulate when Congress has not because we believe such regulation would facilitate interstate commerce. Cf. Northwest Airlines, Inc. v. Minnesota, 322 U.S. 292, 302, 64 S.Ct. 950, 955, 88 L.Ed. 1283 (1944) (Black, J., concurring) ("The Constitution gives [Congress] the power to regulate commerce among the states, and until it acts I think we should enter the field with extreme caution").
69
It is also well established that "the Court has been most reluctant to invalidate under the Commerce Clause 'state legislation in the field of safety where the propriety of local regulation has long been recognized.' " Raymond, supra, at 443, 98 S.Ct., at 795 (quoting Pike v. Bruce Church, Inc., 397 U.S. 137, 143, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970)). The propriety of state regulation of the use of public highways was explicitly recognized in Morris v. Duby, 274 U.S. 135, 143, 47 S.Ct. 548, 549, 71 L.Ed. 966 (1927), where Chief Justice Taft wrote that "[i]n the absence of national legislation especially covering the subject of interstate commerce, the State may rightfully prescribe uniform regulations adapted to promote safety upon its highways and the conservation of their use, applicable alike to vehicles moving in interstate commerce and those of its own citizens." The Court very recently reaffirmed the longstanding view that "[i]n no field has . . . deference to state regulation been greater than that of highway safety." Raymond, supra, at 443, 98 S.Ct., at 794. See Railway Express Agency, Inc. v. New York, 336 U.S. 106, 111, 69 S.Ct. 463, 466, 93 L.Ed. 533 (1949); South Carolina State Highway Dept. v. Barnwell Brothers, Inc., 303 U.S. 177, 187, 58 S.Ct. 510, 514, 82 L.Ed. 734 (1938); Sproles v. Binford, 286 U.S. 374, 390, 52 S.Ct. 581, 585, 76 L.Ed. 1167 (1932); Hendrick v. Maryland, 235 U.S. 610, 622, 35 S.Ct. 140, 142, 59 L.Ed. 385 (1915). Those challenging a highway safety regulation must overcome a "strong presumption of validity," Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520, 524, 79 S.Ct. 962, 964, 3 L.Ed.2d 1003 (1959), particularly when, as here, Congress has not acted in the area and the claim is that "the bare possession of power by Congress" invalidates the state legislation. Barnwell Brothers, supra, 303 U.S., at 187, 58 S.Ct., at 514.3
70
A determination that a state law is a rational safety measure does not end the Commerce Clause inquiry. A "sensitive consideration" of the safety purpose in relation to the burden on commerce is required. Raymond, supra, at 441, 98 S.Ct., at 794. When engaging in such a consideration the Court does not directly compare safety benefits to commerce costs and strike down the legislation if the latter can be said in some vague sense to "outweigh" the former. Such an approach would make an empty gesture of the strong presumption of validity accorded state safety measures, particularly those governing highways. It would also arrogate to this Court functions of forming public policy, functions which, in the absence of congressional action, were left by the Framers of the Constitution to state legislatures. "[I]n reviewing a state highway regulation where Congress has not acted, a court is not called upon, as are state legislatures, to determine what, in its judgment, is the most suitable restriction to be applied of those that are possible, or to choose that one which in its opinion is best adapted to all the diverse interests affected." Barnwell Brothers, supra, 303 U.S., at 190, 58 S.Ct., at 516. See Locomotive Firemen, 393 U.S., at 138, 89 S.Ct., at 327 ("[T]he question of safety in the circumstances of this case is essentially a matter of public policy, and public policy can, under our constitutional system, be fixed only by the people acting through their elected representatives"); Bibb, supra, 359 U.S. at 524, 79 S.Ct., at 964 ("If there are alternative ways of solving a problem, we do not sit to determine which of them is best suited to achieve a valid state objective. Policy decisions are for the state legislature"). These admonitions are peculiarly apt when, as here, the question involves the difficult comparison of financial losses and "the loss of lives and limbs of workers and people using the highways." Locomotive Firemen, supra, 393 U.S., at 140, 89 S.Ct., at 328.4
71
The purpose of the "sensitive consideration" referred to above is rather to determine if the asserted safety justification, although rational, is merely a pretext for discrimination against interstate commerce. We will conclude that it is if the safety benefits from the regulation are demonstrably trivial while the burden on commerce is great. Thus the Court in Bibb stated that the "strong presumption of validity" accorded highway safety measures could be overcome only when the safety benefits were "slight or problematical," 359 U.S., at 524, 79 S.Ct., at 964. See Raymond, 434 U.S., at 449, 98 S.Ct., at 798 (BLACKMUN, J., concurring) ("[I]f safety justifications are not illusory, the Court will not second-guess legislative judgment about their importance in comparison with related burdens on interstate commerce"). The nature of the inquiry is perhaps best illustrated by examining those cases in which state safety laws have been struck down on Commerce Clause grounds. In Southern Pacific a law regulating train lengths was viewed by the Court as having "at most slight and dubious advantage, if any, over unregulated train lengths," 325 U.S., at 779, 65 S.Ct., at 1525; the lower courts concluded the law actually tended to increase the number of accidents by increasing the number of trains, id., at 777, 65 S.Ct., at 1524. In Bibb the contoured mudguards required by Illinois, alone among the States, had no safety advantages over conventional mudguards and, as in Southern Pacific, actually increased hazards. 359 U.S., at 525, 79 S.Ct., at 965; id., at 530, 79 S.Ct., at 968 (Harlan, J., concurring). In Great A&P Tea Co. v. Cottrell, 424 U.S. 366, 375-376, 96 S.Ct. 923, 929-930, 47 L.Ed.2d 55 (1976), the Court struck down a Mississippi "reciprocity clause" concerning milk inspection because it "disserve[d] rather than promote[d] any higher Mississippi milk quality standards." The cases thus demonstrate that the safety benefits of a state law must be slight indeed before it will be struck down under the dormant Commerce Clause.
III
72
Iowa defends its statute as a highway safety regulation. There can be no doubt that the challenged statute is a valid highway safety regulation and thus entitled to the strongest presumption of validity against Commerce Clause challenges. As noted, all 50 States regulate the length of trucks which may use their highways. Cf. West Coast Hotel Co. v. Parrish, 300 U.S. 379, 399, 57 S.Ct. 578, 585, 81 L.Ed. 703 (1937) ("The adoption of similar requirements by many States evidences a deepseated conviction both as to the presence of the evil and as to the means adapted to check it"). The American Association of State Highway and Transportation Officials (AASHTO) has consistently recommended length as well as other limits on vehicles.5 The Iowa Supreme Court has long viewed the provision in question as intended to promote highway safety, see Wood Brothers Thresher Co. v. Eicher, 231 Iowa 550, 559-560, 1 N.W.2d 655, 660 (1942); State v. United-Buckingham Freight Lines, Inc., Iowa, 211 N.W.2d 288, 290 (1973), and "[t]his Court has also had occasion to point out that the sizes and weights of automobiles have an important relation to the safe and convenient use of the highways, which are matters of state control." Maurer v. Hamilton, 309 U.S. 598, 609, 60 S.Ct. 726, 732, 84 L.Ed. 969 (1940). There can also be no question that the particular limit chosen by Iowa—60 feet—is rationally related to Iowa's safety objective. Most truck limits are between 55 and 65 feet, see App. 645, and Iowa's choice is thus well within the widely accepted range.
73
Iowa adduced evidence supporting the relation between vehicle length and highway safety. The evidence indicated that longer vehicles take greater time to be passed, thereby increasing the risks of accidents, particularly during the inclement weather not uncommon in Iowa. Id., at 504-505. The 65-foot vehicle exposes a passing driver to visibility-impairing splash and spray during bad weather for a longer period than do the shorter trucks permitted in Iowa.6 Longer trucks are more likely to clog intersections, id., at 457, and although there are no intersections on the Interstate Highways, the order below went beyond the highways themselves and the concerns about greater length at intersections would arise "[a]t every trip origin, every trip destination, every intermediate stop for picking up trailers, reconfiguring loads, change of drivers, eating, refueling—every intermediate stop would generate this type of situation." Ibid. The Chief of the Division of Patrol in the Iowa Department of Public Safety testified that longer vehicles pose greater problems at the scene of an accident. For example, trucks involved in accidents often must be unloaded at the scene, id., at 400, which would take longer the bigger the load.
74
In rebuttal of Consolidated's evidence on the relative safety of 65-foot doubles to trucks permitted on Iowa's highways, Iowa introduced evidence that doubles are more likely than singles to jackknife or upset, id., at 507. The District Court concluded that this was so and that singles are more stable than doubles. 475 F.Supp., at 549.7 Iowa also introduced evidence from Consolidated's own records showing that Consolidated's overall accident rate for doubles exceeded that of semis for three of the last four years, App. 668-675, and that some of Consolidated's own drivers expressed a preference for the handling characteristics of singles over doubles. 475 F.Supp., at 549.
75
In addition Iowa elicited evidence undermining the probative value of Consolidated's evidence. For example, Iowa established that the more experienced drivers tended to drive doubles, because they have seniority and driving doubles is a higher paying job than driving singles. Since the leading cause of accidents was driver error, Consolidated's evidence of the relative safety record of doubles may have been based in large part not on the relative safety of the vehicles themselves but on the experience of the drivers. App. 27-28. Although the District Court, the Court of Appeals, and the plurality all fail to recognize the fact, Iowa also negated much of Consolidated's evidence by establishing that it considered the relative safety of doubles to singles, and not the question of length alone. Consolidated introduced much evidence that its doubles were as safe as singles. See, e. g., id., at 23, 32-36, 45, 89, 153, 289, 304, 586, 609. Such evidence is beside the point. The trucks which Consolidated wants to run in Iowa are prohibited because of their length, not their configuration. Doubles are allowed in Iowa, up to a length of 60 feet, and Consolidated in fact operates 60-foot doubles in Iowa. Consolidated's experts were often forced to admit that they could draw no conclusions about the relative safety of 65-foot doubles and 60-foot doubles, as opposed to doubles and singles. See, e. g., id., at 26, 53, 308. Conclusions that the double configuration is as safe as the single do not at all mean the 65-foot double is as safe as the 60-foot double, or that length is not relevant to vehicle safety. For example, one of Consolidated's experts testified that doubles "off track" better than singles, because of their axle placement, but conceded on cross-examination that a 60-foot double would off-track better than a 65-foot double. Id., at 97, 107. In sum, there was sufficient evidence presented at trial to support the legislative determination that length is related to safety, and nothing in Consolidated's evidence undermines this conclusion.
76
The District Court approached the case as if the question were whether Consolidated's 65-foot trucks were as safe as others permitted on Iowa highways, and the Court of Appeals as if its task were to determine if the District Court's factual findings in this regard were "clearly erroneous." 612, F.2d at 1069. The question, however, is whether the Iowa Legislature has acted rationally in regulating vehicle lengths and whether the safety benefits from this regulation are more than slight or problematical. "The classification of the traffic for the purposes of regulation . . . is a legislative, not a judicial, function. Its merits are not to be weighed in the judicial balance and the classification rejected merely because the weight of the evidence in court appears to favor a different standard." Clark v. Paul Gray, Inc., 306 U.S. 583, 594, 59 S.Ct. 744, 745, 83 L.Ed. 1001 (1939). "Since the adoption of one weight or width regulation, rather than another, is a legislative and not a judicial choice, its constitutionality is not to be determined by weighing in the judicial scales the merits of the legislative choice and rejecting it if the weight of evidence presented in court appears to favor a different standard." Barnwell Brothers, 303 U.S., at 191, 58 S.Ct., at 517.8
77
The answering of the relevant question is not appreciably advanced by comparing trucks slightly over the length limit with those at the length limit. It is emphatically not our task to balance any incremental safety benefits from prohibiting 65-foot doubles as opposed to 60-foot doubles against the burden on interstate commerce. Lines drawn for safety purposes will rarely pass muster if the question is whether a slight increment can be permitted without sacrificing safety. As Justice Holmes put it:
78
"When a legal distinction is determined, as no one doubts that it may be, between night and day, childhood and maturity, or any other extremes, a point has to be fixed or a line has to be drawn, or gradually picked out by successive decisions, to mark where the change takes place. Looked at by itself without regard to the necessity behind it the line or point seems arbitrary. It might as well or nearly as well be a little more to one side or the other. But when it is seen that a line or point there must be, and that there is no mathematical or logical way of fixing it precisely, the decision of the legislature must be accepted unless we can say that it is very wide of any reasonable mark." Louisville Gas & Electric Co. v. Coleman, 277 U.S. 32, 41, 48 S.Ct. 423, 426, 72 L.Ed. 770 (1938) (dissenting opinion).
79
The question is rather whether it can be said that the benefits flowing to Iowa from a rational truck-length limitation are "slight or problematical." See Bibb, 359 U.S., at 524, 79 S.Ct., at 964. The particular line chosen by Iowa—60 feet—is relevant only to the question whether the limit is a rational one. Once a court determines that it is, it considers the overall safety benefits from the regulation against burdens on interstate commerce, and not any marginal benefits from the scheme the State established as opposed to that the plaintiffs desire. See Southern Pacific, 325 U.S., at 779, 65 S.Ct., at 1525 (train-length law struck down because it "affords at most slight and dubious advantage, if any, over unregulated train lengths") (emphasis supplied); Barnwell Brothers, supra, at 190-192, 58 S.Ct., at 516-517.
80
The difficulties with the contrary approach are patent. While it may be clear that there are substantial safety benefits from a 55-foot truck as compared to a 105-foot truck, these benefits may not be discernible in 5-foot jumps. Appellee's approach would permit what could not be accomplished in one lawsuit to be done in 10 separate suits, each challenging an additional five feet.
81
Any direct balancing of marginal safety benefits against burdens on commerce would make the burdens on commerce the sole significant factor, and make likely the odd result that similar state laws enacted for identical safety reasons might violate the Commerce Clause in one part of the country but not another. For example, Mississippi and Georgia prohibit trucks over 55 feet. Since doubles are not operated in the Southeast, the demonstrable burden on commerce may not be sufficient to strike down these laws, while Consolidated maintains that it is in this case, even though the doubles here are given an additional five feet. On the other hand, if Consolidated were to win this case it could shift its 65-foot doubles to routes leading into Mississippi or Georgia (both States border States in which 65-foot trucks are permitted) and claim the same constitutional violation it claims in this case. Consolidated Freightways, and not this Court, would become the final arbiter of the Commerce Clause.
82
It must be emphasized that there is nothing in the laws of nature which make 65-foot doubles an obvious norm. Consolidated operates 65-foot doubles on many of its routes simply because that is the largest size permitted in many States through which Consolidated travels. App. 92, 240, 364-365. Doubles can and do come in smaller sizes; indeed, when Iowa adopted the present 60-foot limit in 1963, it was in accord with AASHTO recommendations. Striking down Iowa's law because Consolidated has made a voluntary business decision to employ 65-foot doubles, a decision based on the actions of other state legislatures, would essentially be compelling Iowa to yield to the policy choices of neighboring States. Under our constitutional scheme, however, there is only one legislative body which can pre-empt the rational policy determination of the Iowa Legislature and that is Congress. Forcing Iowa to yield to the policy choices of neighboring States perverts the primary purpose of the Commerce Clause, that of vesting power to regulate interstate commerce in Congress, where all the States are represented. In Barnwell Brothers, the Court upheld a South Carolina width limit of 90 inches even though "all other states permit a width of 96 inches which is the standard width of trucks engaged in interstate commerce." 303 U.S., at 184, 58 S.Ct., at 513. Then Justice Stone, writing for the Court, stressed:
83
"The fact that many states have adopted a different standard is not persuasive. . . . The legislature, being free to exercise its own judgment, is not bound by that of other legislatures. It would hardly be contended that if all the states had adopted a single standard none, in the light of its own experience and in the exercise of its judgment upon all the complex elements which enter into the problem, could change it." Id., at 195-196, 58 S.Ct., at 519.
84
See also Sproles, 286 U.S., at 390, 52 S.Ct., at 585. Nor is Iowa's policy preempted by Consolidated's decision to invest in 65-foot trucks, particularly since this was done when Iowa's 60-foot limit was on the books. Cf. id., at 390-391, 52 S.Ct., at 585-586.9
85
The Court of Appeals felt compelled to reach the result it did in light of our decision in Raymond and the plurality agrees that "[t]his case is Raymond revisited," ante, at 671.10 Raymond, however, does not control this case. The Court in Raymond emphasized that "[o]ur holding is a narrow one, for we do not decide whether laws of other States restricting the operation of trucks over 55 feet long, or of double-trailer trucks, would be upheld if the evidence produced on the safety issue were not so overwhelmingly one-sided as in this case." 434 U.S., at 447, 98 S.Ct., at 797.11 TheRaymond Court repeatedly stressed that the State "made no effort to contradict . . . evidence of comparative safety with evidence of its own," id., at 437, 98 S.Ct., at 791 that the trucking companies' evidence was "uncontroverted," id., at 445, n. 19, 98 S.Ct., at 796, n. 19, and that the State "virtually defaulted in its defense of the regulations as a safety measure," id., at 444, 98 S.Ct., at 795. By contrast, both the District Court and the Court of Appeals recognized that Iowa "made an all out effort" and "zealously presented arguments" on its safety case. 475 F.Supp., at 548; 612 F.2d, at 1067-1068. As noted, Iowa has adduced evidence sufficient to support its safety claim and has rebutted much of the evidence submitted by Consolidated.
86
Furthermore, the exception to the Wisconsin prohibition which the Court specifically noted in Raymond finds no parallel in this case. The exception in Raymond permitted oversized vehicles to travel from plant to plant in Wisconsin or between a Wisconsin plant and the border. 434 U.S., at 446, and n. 24, 98 S.Ct., 796, and n. 24. As the Court noted, this discriminated on its face between Wisconsin industries and the industries of other States. The border-cities exception to the Iowa length limit does not. Iowa shippers in cities with border-city ordinances may use longer vehicles in interstate commerce, but interstate shippers coming into such cities may do so as well. Cities without border-city ordinances may neither export nor import on oversized vehicles. Nor can the border-cities exception be "[v]iewed realistically," as was the Wisconsin exception, to "be the product of compromise between forces within the State that seek to retain the State's general truck-length limit, and industries within the State that complain that the general limit is unduly burdensome." Raymond, 434 U.S., at 447, 98 S.Ct., at 797. The Wisconsin exception was available to all Wisconsin industries wanting to ship out of State from Wisconsin plants. The border-cities exception is of much narrower applicability: only 5 of Iowa's 16 largest cities and only 8 cities in all permit oversized trucks under the border-cities exception. The population of the eight cities with border-city ordinances is only 13 percent of the population of the State.12
87
My Brother BRENNAN argues that the Court should consider only the purpose the Iowa legislators actually sought to achieve by the length limit, and not the purposes advanced by Iowa's lawyers in defense of the statute. This argument calls to mind what was said of the Roman Legions: that they may have lost battles, but they never lost a war, since they never let a war end until they had won it. The argument has been consistently rejected by the Court in other contexts, compare, e. g., United States Railroad Retirement Board v. Fritz, 449 U.S. 166, 179-180, 101 S.Ct. 453, 461, 66 L.Ed.2d 368 (1980), with id., at 187-188, 101 S.Ct. at 465-466 (BRENNAN, J., dissenting) and Michael M. v. Superior Court of Sonoma County, 450 U.S. 464, 469-470, 101 S.Ct. 1200, 1204-1205, 67 L.Ed.2d 437 (plurality opinion), with id., at 494-496, 101 S.Ct., at 1217-1218 (BRENNAN, J., dissenting), and Justice BRENNAN can cite no authority for the proposition that possible legislative purposes suggested by a State's lawyers should not be considered in Commerce Clause cases. The problems with a view such as that advanced in the opinion concurring in the judgment are apparent. To name just a few, it assumes that individual legislators are motivated by one discernible "actual" purpose, and ignores the fact that different legislators may vote for a single piece of legislation for widely different reasons. See Michael M., supra, at 469-470, 101 S.Ct., at 1204-1205; Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 265, 97 S.Ct. 555, 563, 50 L.Ed.2d 450 (1977); McGinnis v. Royster, 410 U.S. 263, 276-277, 93 S.Ct. 1055, 1063, 35 L.Ed.2d 282 (1973). How, for example, would a court adhering to the views expressed in the opinion concurring in the judgment approach a statute, the legislative history of which indicated that 10 votes were based on safety considerations, 10 votes were based on protectionism, and the statute passed by a vote of 40-20? What would the actual purpose of thelegislature have been in that case? This Court has wisely "never insisted that a legislative body articulate its reasons for enacting a statute." Fritz, supra, at 179, 101 S.Ct., at 461.13
88
Both the plurality and the concurrence attach great significance to the Governor's veto of a bill passed by the Iowa Legislature permitting 65-foot doubles. Whatever views one may have about the significance of legislative motives, it must be emphasized that the law which the Court strikes down today was not passed to achieve the protectionist goals the plurality and the concurrence ascribe to the Governor. Iowa's 60-foot length limit was established in 1963, at a time when very few States permitted 65-foot doubles. See App. to Reply Brief for Appellants 1a, 2a. Striking down legislation on the basis of asserted legislative motives is dubious enough, but the plurality and concurrence strike down the legislation involved in this case because of asserted impermissible motives for not enacting other legislation, motives which could not possibly have been present when the legislation under challenge here was considered and passed. Such action is, so far as I am aware, unprecedented in this Court's history.
89
Furthermore, the effort in both the plurality and the concurrence to portray the legislation involved here as protectionist is in error. Whenever a State enacts more stringent safety measures than its neighbors, in an area which affects commerce, the safety law will have the incidental effect of deflecting interstate commerce to the neighboring States. Indeed, the safety and protectionist motives cannot be separated: The whole purpose of safety regulation of vehiclesis to protect the State from unsafe vehicles. If a neighboring State chooses not to protect its citizens from the danger discerned by the enacting State, that is its business, but the enacting State should not be penalized when the vehicles it considers unsafe travel through the neighboring State.
90
The other States with truck-length limits that exclude Consolidated's 65-foot doubles would not at all be paranoid in assuming that they might be next on Consolidated's "hit list."14 The true problem with today's decision is that it gives no guidance whatsoever to these States as to whether their laws are valid or how to defend them. For that matter, the decision gives no guidance to Consolidated or other trucking firms either. Perhaps, after all is said and done, the Court today neither says nor does very much at all. We know only that Iowa's law is invalid and that the jurisprudence of the "negative side" of the Commerce Clause remains hopelessly confused.
1
For an illustration of the differences between singles and doubles, see Raymond Motor Transportation, Inc. v. Rice, 417 F.Supp. 1352, 1363 (W.D. Wis. 1976) (three-judge court), rev'd, 434 U.S. 429, 98 S.Ct. 787, 54 L.Ed.2d 664 (1978).
2
Iowa Code § 321.457(6) (1979). The 60-foot double is not commonly used anywhere except in Iowa. It consists of a tractor pulling a large trailer, which in turn pulls a dolly attached to a small trailer. The odd-sized trailer used in the 60-foot double is not compatible for interchangeable use in other trailer combinations. See App. 23, 276-277, 353, 354.
3
Iowa Code § 321.457(4) (1979).
4
§ 321.457(5).
5
§ 321.457(3). After trial, and after the Court of Appeals' decision in this case, Iowa amended its law to permit all singles to be as large as 60 feet. 1980 Iowa Acts, ch. 1100.
6
The Iowa Legislature in 1974 passed House Bill 671, which would have permitted 65-foot doubles. But Iowa Governor Ray vetoed the bill, noting that it "would benefit only a few Iowa-based companies while providing a great advantage for out-of-state trucking firms and competitors at the expense of our Iowa citizens." Governor's Veto Message of March 2, 1974, reprinted in App. 626. The "border-cities exemption" was passed by the General Assembly and signed by the Governor shortly thereafter.
The Iowa Transportation Commission, pursuant to authority conferred in Iowa Code § 307.10(5) (1979), subsequently adopted regulations that would have legalized 65-foot doubles, provided that the legislature enacted a ban on studded snow tires. The Iowa Supreme Court declared these regulations void because their promulgation was impermissibly tied to legislative action. Motor Club of Iowa v. Department of Transportation, Iowa, 251 N.W.2d 510 (1977).
7
The parochial restrictions in the mobile home provision were enacted after Governor Ray vetoed a bill that would have permitted the interstate shipment of all mobile homes through Iowa. Governor Ray commented, in his veto message:
"This bill . . . would make Iowa a bridge state as these oversized units are moved into Iowa after being manufactured in another state and sold in a third. None of this activity would be of particular economic benefit to Iowa." Governor's Veto Message of March 16, 1972, reprinted in App. 641.
8
Defendants, appellants in this Court, are Raymond Kassel, Director of the Iowa Department of Transportation, Iowa Governor Robert D. Ray, and state transportation officials Robert Rigler, L. Stanley Schoelerman, Donald Gardner, Jules Busker, Allan Thomas, Barbara Dunn, William McGrath, Jon McCoy, Charles W. Larson, Edward Dickinson, and Richard C. Turner.
9
See, 475 F.Supp. 544, 551 (SD Iowa 1979); 612 F.2d 1064, 1068, 1069-1070 (CA8 1979). In this Court, Iowa places little or no emphasis on the constitutional validity of this second argument.
10
Justice STEVENS took no part in the consideration or decision of Raymond.
11
The Senate last year passed a bill that would have pre-empted the field of truck lengths by setting a national limit of 65 feet. See S. 1390, 96th Cong., 2d Sess. (1980) (reprinted in 126 Cong.Rec. 3309, 3303 (1980)). The House took no action before adjournment.
12
It is highly relevant that here, as in Raymond, the state statute contains exemptions that weaken the deference traditionally accorded to a state safety regulation. See § IV, infra.
13
Twin trailers have single axles; semis, by contrast, have tandem axles. The axle configuration of the semi aggravates splash and spray. The forward tire creates upward wind currents in the same place that the rear tire creates downward wind currents. The confluence of these currents occurs at a point just above and between the tandem axles. The resulting turbulence then is blasted outward, carrying spray with it. App. 95-96.
14
"Off-tracking" refers to the extent to which the rear wheels of a truck deviate from the path of the front wheels while turning.
15
Evidence at trial did show that doubles could back up far enough to move around an accident. App. 103.
16
In suggesting that Iowa's law actually promotes safety, the dissenting opinion ignores the findings of the courts below and relies on largely discredited statistical evidence. The dissent implies that a statistical study identified doubles as more dangerous than singles. Post, at 695. At trial, however, the author of that study—Iowa's own statistician—conceded that his calculations were statistically biased, and therefore "not very meaningful." Tr. 1678; see App. 669-670, Tr. 1742-1747.
The dissenting opinion also suggests that its conclusions are bolstered by the fact that the American Association of State Highway and Transportation Officials (AASHTO) recommends that States limit truck lengths. Post, at 693, 699. The dissent fails to point out, however, that AASHTO specifically recommends that States permit 65-foot doubles. App. 602-603.
17
Moreover, trucks diverted from interstates often must travel over more dangerous roads. For example, east-west traffic diverted from Interstate 80 is rerouted through Missouri on U. S. Highway 36, which is predominantly a 2-lane road.
18
The District Court, in denying a stay pending appeal, noted that Iowa's law causes "more accidents, more injuries, more fatalities and more fuel consumption." Id., at 579. Appellant Kassel conceded as much at trial. Id., at 281. Kassel explained, however, that most of these additional accidents occur in States other than Iowa because truck traffic is deflected around the State. He noted: "Our primary concern is the citizens of Iowa and our own highway system we operate in this state." Ibid.
19
As the District Court noted, diversion of traffic benefits Iowa by holding down (i) accidents in the State, (ii) auto insurance premiums, (iii) police staffing needs, and (iv) road wear. 475 F.Supp., at 550.
20
Five of Iowa's ten largest cities—Davenport, Sioux City, Dubuque, Council Bluffs, and Clinton—are by their location entitled to use the "border cities exemption." See U.S. Bureau of the Census, U.S. Census of Population: 1970 Number of Inhabitants, Final Report PC(1)-A1, United States Summary 1-136, 1-137.
21
The vast majority of the 65-foot doubles seeking access to Iowa's interstate highways carry goods in interstate traffic through Iowa. See App. 175-176, 560.
22
As noted above, exemptions also are available to benefit Iowa truck makers, Iowa Code § 321E.10 (1979), and Iowa mobile home manufacturers or purchasers, § 321E.28(5). Although these exemptions are not directly relevant to the controversy over the safety of 65-foot doubles, they do contribute to the pattern of parochialism apparent in Iowa's statute.
23
Governor Ray further commented that "if we have thousands more trucks crossing our state, there will be millions of additional miles driven in Iowa and that does create a genuine concern for safety." App. 628.
24
The dissenting opinion insists that we defer to Iowa's truck-length limitations because they represent the collective judgment of the Iowa Legislature. See post, at 691-692, 696-697, 699, 700. This position is curious because, as noted above, the Iowa Legislature approved a bill legalizing 65-foot doubles. The bill was vetoed by the Governor, primarily for parochial rather than legitimate safety reasons. The dissenting opinion is at a loss to explain the Governor's interest in deflecting interstate truck traffic around Iowa.
25
Locomotive Firemen v. Chicago, R. I. & P. R. Co., 393 U.S. 129, 89 S.Ct. 323, 21 L.Ed.2d 289 (1968), in its result, although perhaps not in all of its language, is consistent with the conclusion we reach today. There, the Arkansas "full-crew" laws were upheld against constitutional challenge because the Court easily perceived that they made nonillusory contributions to safety. See id., at 136-138, 89 S.Ct., at 326-327. Here, as in Raymond, there was no such evidence. This case and Raymond recognize, as the Court did in Locomotive Firemen, that States constitutionally may enact laws that demonstrably promote safety, even when those laws also burden the flow of commerce.
26
As noted above, the District Court and the Court of Appeals held that the Iowa statutory scheme unconstitutionally burdened interstate commerce. The District Court, however, found that the statute did not discriminate against such commerce. 475 F.Supp., at 553. Because the record fully supports the decision below with respect to the burden on interstate commerce, we need not consider whether the statute also operated to discriminate against that commerce. See Raymond, 434 U.S., at 446-447, n. 24, 98 S.Ct., at 796-797, n. 24. The latter theory was neither briefed nor argued in this Court.
27
Justice REHNQUIST in dissent states that, as he reads the various opinions in this case, "only four Justices invalidate Iowa's law on the basis of the analysis in Raymond." Post, at 700, n. 10. It should be emphasized that Raymond, the analysis of which was derived from the Court's opinion in Pike v. Bruce Church, Inc., 397 U.S. 137, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970), was joined by each of the eight Justices who participated. Today, Justice BRENNAN finds it unnecessary to reach the Raymond analysis because he finds the Iowa statute to be flawed for a threshold reason.
28
Consolidated's complaint sought only a declaration that the Iowa statute was unconstitutional insofar as it precluded the use of 65-foot doubles on major interstate highways and nearby access roads. App. 10-11. We are not asked to consider whether Iowa validly may ban 65-foot doubles from smaller roads on which they might be demonstrably unsafe.
1
Moreover, I would emphasize that in the field of safety and perhaps in other fields where the decisions of state lawmakers are deserving of a heightened degree of deference—the role of the courts is not to balance asserted burdens against intended benefits as it is in other fields. Compare Raymond Motor Transportation, Inc. v. Rice, 434 U.S. 429, 449, 98 S.Ct. 787, 798, 54 L.Ed.2d 664 (1978) (BLACKMUN, J., concurring) (safety regulation), with Pike v. Bruce Church, Inc., 397 U.S. 137, 143, 90 S.Ct. 844, 848, 25 L.Ed.2d 174 (1970) (regulation intended "to protect and enhance the reputation of growers within the State"). In the field of safety, once the court has established that the intended safety benefit is not illusory, insubstantial, or nonexistent, it must defer to the State's lawmakers on the appropriate balance to be struck against other interests. I therefore disagree with my Brother POWELL when he asserts that the degree of interference with interstate commerce may in the first instance be "weighed" against the State's safety interests:
"Regulations designed [to promote the public health or safety] nevertheless may further the purpose so marginally, and interfere with commerce so substantially, as to be invalid under the Commerce Clause." Ante, at 670 (emphasis added).
2
In the District Court and the Court of Appeals, Iowa's attorneys forthrightly defended the regulation in part on the basis of the State's interest in discouraging interstate truck traffic through Iowa. 475 F.Supp. 544, 550 (SD Iowa); 612 F.2d 1064, 1069 (CA8 1979).
3
My Brother REHNQUIST claims that the "argument" that a court should defer to the actual purposes of the lawmakers rather than to the post hoc justifications of counsel "has been consistently rejected by the Court in other contexts." Post, at 702. Apparently, he has overlooked such cases as Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 79 S.Ct. 437, 3 L.Ed.2d 480 (1959), where we described the rationale for our earlier decision in Wheeling Steel Corp. v. Glander, 337 U.S. 562, 69 S.Ct. 1291, 93 L.Ed. 1544 (1949):
"The statutes, on their face admittedly discriminatory against nonresidents, themselves declared their purpose. . . . Having themselves specifically declared their purpose, the Ohio statute left no room to conceive of any other purpose for their existence. And the declared purpose having been found arbitrarily discriminatory against nonresidents, the Court could hardly escape the conclusion. . . ." 358 U.S., at 529-530, 79 S.Ct., at 442, 3 L.Ed.2d 480.
And in Weinberger v. Wiesenfeld, 420 U.S. 636, 648, n. 16, 95 S.Ct. 1225, 1233, n. 16, 43 L.Ed.2d 514 (1975), we said:
"This Court need not . . . accept at face value assertions of legislative purposes, when an examination of the legislative scheme and its history demonstrates that the asserted purpose could not have been a goal of the legislation." (Citing cases.)
And in Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 314, 96 S.Ct. 2562, 2567, 49 L.Ed.2d 520, (1976), we stated that a classification challenged as being discriminatory will be upheld only if it "rationally furthers the purpose identified by the State." See also Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 463, n. 7, 101 S.Ct. 715, 723, n. 7 (1981); Califano v. Goldfarb, 430 U.S. 199, 212-213, 97 S.Ct. 1021, 1029-30, 51 L.Ed.2d 270 (1977) (plurality opinion); Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 813, n. 23, 96 S.Ct. 2488, 2499, n. 23, 49 L.Ed.2d 220 (1976); Johnson v. Robison, 415 U.S. 361, 381-382, 94 S.Ct. 1160, 1172, 39 L.Ed.2d 389 (1974).
The extent to which we may rely upon post hoc justifications of counsel depends on the circumstances surrounding passage of the legislation. Where there is no evidence bearing on the actual purpose for a legislative classification, our analysis necessarily focuses on the suggestions of counsel, see Allied Stores of Ohio, Inc. v. Bowers, supra, at 528-529, 79 S.Ct., at 441-442 (relied upon by the dissent, post, at 703-704, n. 13). Even then, "marginally more demanding scrutiny" is appropriate to "test the plausibility of the tendered
purpose." Schweiker v. Wilson, 450 U.S. 221, 245, 101 S.Ct. 1074, 1088, 67 L.Ed.2d 186 (POWELL, J., dissenting). But where the lawmakers' purposes in enacting a statute are explicitly set forth, e. g., Minnesota v. Clover Leaf Creamery Co., supra, at 458-459, 101 S.Ct., at 721; Johnson v. Robison, supra, at 376, 94 S.Ct., at 1170, or are clearly discernible from the legislative history, e. g., Hughes v. Alexandria Scrap Corp., supra, at 813, n. 23, 96 S.Ct., at 2499, n. 23; McGinnis v. Royster, 410 U.S. 263, 274-277, 93 S.Ct. 1055, 1061-1062, 35 L.Ed.2d 282 (1973), this Court should not take—and, with the possible exception of United States Railroad Retirement Board v. Fritz, 449 U.S. 166, 101 S.Ct. 453, 66 L.Ed.2d 368 (1980), see id., at 187-193, 101 S.Ct., at 463 (BRENNAN, J., dissenting), has not taken—the extraordinary step of disregarding the actual purpose in favor of some "imaginary basis or purpose." McGinnis v. Royster, supra, at 277, 93 S.Ct., at 1063. The principle of separation of powers requires, after all, that we defer to the elected lawmakers' judgment as to the appropriate means to accomplish an end, not that we defer to the arguments of lawyers.
If, as here, the only purpose ever articulated by the State's lawmakers for maintaining a regulation is illegitimate, I consider it contrary to precedent as well as to sound principles of constitutional adjudication for the courts to base their analysis on purposes never conceived by the lawmakers. This is especially true where, as the dissent's strained analysis of the relative safety of 65-foot doubles to shorter trucks amply demonstrates, see post, 694-696, the post hoc justifications are implausible as well as imaginary. I would emphasize that, although my Brother Powell's plurality opinion does not give as much weight to the illegitimacy of Iowa's actual purpose as I do, see Part III, infra, both that opinion and this concurrence have found the actual motivation of the Iowa lawmakers in maintaining the truck-length regulation highly relevant to, if not dispositive of, the case. See ante, at 677-678.
4
The veto message, printed at App. 626-631, is a complete statement of Governor Ray's reasons for vetoing House Bill 671. App. 172 (deposition of Governor Ray).
5
It is not enough to conclude, as my Brother POWELL does, that "the deference traditionally accorded a State's safety judgment is not warranted." Ante, at 678.
1
Doubles are prohibited in Maine, New Hampshire, Vermont, Massachusetts (except turnpike), Rhode Island, Connecticut, Pennsylvania, West Virginia, Virginia, Tennessee, North Carolina, South Carolina, Alabama, and the District of Columbia. Doubles are permitted to a maximum length of 55 feet in New York (on designated highways only, longer permitted on turnpike), New Jersey, Mississippi, and Georgia. Sixty-five foot doubles are restricted to designated highways in Oregon, North Dakota, Minnesota, Wisconsin, Michigan, Illinois, Missouri, Louisiana, Kentucky, Maryland, and Florida. See App. 605, 645.
2
Interstate Highways 80, 35, 280, 380, 29, 680, and 235.
3
Congress has considered the question of regulating truck length several times but has consistently left the matter for state regulation. See, e. g., S.Rep.No.93-1111, p. 10 (1974) ("The Committee believes that truck lengths should remain, as they have been, a matter for State decision").
4
It should not escape notice that a majority of the Court goes on record today as agreeing that courts in Commerce Clause cases do not sit to weigh safety benefits against burdens on commerce when the safety benefits are not illusory. See opinion concurring in judgment, ante, at 681, n. 1. Even the plurality gives lipservice to this principle, ante, at 670. I do not agree with my Brother BRENNAN, however, that only those safety benefits somehow articulated by the legislature as the motivation for the challenged statute can be considered in supporting the state law. See infra, at 702-703.
5
The plurality points out that "AASHTO specifically recommends that States permit 65-foot doubles," ante, at 674, n. 16. But in the absence of its adoption by the Iowa legislative process, an AASHTO recommendation as to a particular length limit remains exactly that: a recommendation which no State is bound to follow.
6
Although greater passing time was offered as a safety justification in Raymond, the Court noted that the trucking companies there "produced uncontradicted evidence that the difference in passing time does not pose an appreciable threat to motorists traveling on limited access, four-lane divided highways." 434 U.S., at 444, 98 S.Ct., at 795 (emphasis supplied). That is not the case here. Iowa indicated before the trial court the connection between greater passing time and greater hazard, primarily the longer exposure to splash and spray. For a vehicle traveling at 55 miles per hour passing a truck traveling at 52 miles per hour, the additional exposure from a 65-foot truck as opposed to a 60-foot truck would be 92 feet and more than a full second. App. 505. The greater passing distance and time would become even more significant off the Interstates when oncoming traffic is involved, and the District Court order permits the longer trucks to operate off the Interstates.
7
Although the District Court noted that doubles are more maneuverable, it certainly is reasonable for a legislature to conclude that stability is a more critical factor than maneuverability on the straight expanses of the Interstates.
8
The opinion of my Brother BRENNAN concurring in the judgment mischaracterizes this dissent when it states that I assume "resolution of the case must hinge upon the argument offered by Iowa's attorneys: that 65-foot doubles are more dangerous than shorter trucks." Ante, at 681. I assume nothing of the sort. As noted in the immediately preceding paragraph, the point of this dissent is that the District Court and the Court of Appeals erred when they undertook to determine if the prohibited trucks were as safe as the permitted ones on the basis of evidence presented at trial. As I read this Court's opinions, the State must simply prove, aided by a "strong presumption of validity," that the safety benefits of its law are not illusory. I review the evidence presented at trial simply to demonstrate that Iowa made such a showing in this case, not because the validity of Iowa's law depends on its proving by a preponderance of the evidence that the excluded trucks are unsafe. As I thought was made clear, it is my view that Iowa must simply show a relation between vehicle length limits and safety, and that the benefits from its length limit are not illusory. Iowa's arguments on passing time, intersection obstruction, and problems at the scene of accidents have validity beyond a comparison of the 65- and 60-foot trucks. In sum, I fully agree with Justice BRENNAN that the validity of Iowa's length limit does not turn on whether 65-foot trucks are less safe than 60-foot trucks.
9
The extent to which the assertion of a violation of the Commerce Clause is simply an effort to compel Iowa to yield to the decisions of its neighbors is clearest if one asks whether Iowa's law would violate the Commerce Clause if the 17 States which currently prohibit Consolidated's 65-foot doubles were not in the East and Southeast but rather surrounded Iowa.
10
The opinion concurring in the judgment begins by stating that the regulation involved here is "nearly identical" to the one struck down in Raymond, ante, at 679, but then approaches the case in a completely different manner than the Court in Raymond. My Brother BRENNAN votes to strike down Iowa's law not because the safety benefits of Iowa's law are illusory—indeed, he specifically declines to consider the safety benefits—but because he views it as protectionist in nature. As I read the various opinions in this case, therefore, only four Justices invalidate Iowa's law on the basis of the analysis in Raymond.
11
Justice BLACKMUN filed a concurring opinion, joined by three others, "to emphasize the narrow scope of [the] decision." 434 U.S., at 448, 98 S.Ct., at 797.
12
According to 1980 preliminary census data, the population of Iowa is 2,908,797. Cities with border-city ordinances, and their populations, are: Akron, 1,514; Bettendorf, 27,377; Clinton, 32,779; Council Bluffs, 56,269; Davenport, 103,036; Dubuque, 61,932; Hawarden, 2,719; and Sioux City, 81,434. Iowa's largest city and capital, Des Moines, with a population of 190,910, cannot avail itself of the border-cities exception nor can Cedar Rapids, the second largest city, with a population of 110,124, or Waterloo, the fifth largest city, with a population of 75,535. Census Bureau, Population Division, Preliminary Count.
13
It is not a particularly pleasant task for the author of a dissent joined by two other Members of the Court to take issue with a statement made by the author of a concurrence in that same case which is joined by only one Member of the Court. Such fragmentation, particularly between two opinions neither of which command the adherence of a majority of the Court, cannot help but further unsettle what certainty there may be in the legal principles which govern our decision of Commerce Clause cases such as this and lay a foundation for similar uncertainty in other sorts of constitutional adjudication. Nonetheless, I feel obliged to take up the cudgels, however unwillingly, because Justice BRENNAN'S concurrence, joined by Justice MARSHALL, is mistaken not only in its analysis but also in its efforts to interpret the meaning of today's decision.
Although both my Brother BRENNAN and I have cited cases from the equal protection area, it is not clear that the analysis of legislative purpose in that area is the same as in the present context. It may be more reasonable to suppose that proffered purposes of a statute, whether advanced by a legislature or post hoc by lawyers, cloak impermissible aims in Commerce Clause cases than in equal protection cases. Statutes generally favor one group at the expense of another, and the Equal Protection Clause was not designed to proscribe this in the way that the Commerce Clause was designed to prevent local barriers to interstate commerce. Thus even if my Brother BRENNAN'S arguments were supportable in Commerce Clause cases, that analysis would not carry over of its own force into the realm of equal protection generally.
But even in the Commerce Clause area, his arguments are unpersuasive. Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 79 S.Ct. 437, 3 L.Ed.2d 480 (1959), see ante, at 682-683, n. 3,
seems to me to cut against, rather than in favor of, his position. The Court in Bowers stated:
"What were the special reasons, motives or policies of the Ohio Legislature for adopting the questioned proviso we do not know with certainty, nor is it important that we should, Southwestern Oil Co. v. Texas, 217 U.S. 114, 126, 30 S.Ct. 496, 500, 54 L.Ed. 688 for a state legislature need not explicitly declare its purpose. But it is obvious that it may reasonably have been the purpose and policy of the State Legislature, in adopting the proviso, to encourage the construction or leasing and operation of warehouses in Ohio by non-residents with the attendant benefits to the State's economy, or to stimulate the market for merchandise and agricultural products produced in Ohio by enabling nonresidents to purchase and hold them in the state for storage only, free from taxes, in anticipation of future needs. Other similar purposes reasonably may be conceived." 358 U.S., at 528-529, 79 S.Ct., at 441-442.
The statute involved in Bowers was upheld on the basis of the various purposes which "reasonably may be conceived," without any effort to determine what the "actual" purpose was or any requirement that the purposes being considered somehow have been articulated by the lawmakers. Wheeling Steel Corp. v. Glander, 337 U.S. 562, 69 S.Ct. 1291, 93 L.Ed. 1544 (1949), simply did not consider the present question, since the State in Glander did not proffer any possible purposes beyond the one stated by the legislature in the statute.
Nor do the more recent decisions cited by my Brother BRENNAN support his argument. For example, the fact that we "need not . . . accept at face value assertions of legislative purposes, when an examination of the legislative scheme and its history demonstrates that the asserted purpose could not have been a goal of the legislation," Weinberger v. Wiesenfeld, 420 U.S. 636, 648, n. 16, 95 S.Ct. 1225, 1233, n. 16, 43 L.Ed.2d 514 (1975) (emphasis supplied), hardly supports the proposition that we cannot consider assertions of legislative purpose which could have been a goal of the legislation, even though such purposes may not have been identified as goals by the legislature. To take another example, the upholding of the law in Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 314, 96 S.Ct. 2562, 2567, 49 L.Ed.2d 520 (1976), because it "rationally furthers the purpose identified by the State," certainly does not suggest that by "State" this Court meant only "legislature," and not the State's attorneys, or that only those purposes identified by the State could be considered in reviewing legislation.
Although Justice BRENNAN "would emphasize" the significance the
plurality opinion attaches to the Governor's articulation of what is viewed as an impermissible purpose, this hardly supports the proposition that permissible purposes cannot be considered by a court unless they were somehow identified by the legislature as goals of the statute. The plurality opinion in fact examines the asserted safety purpose of the Iowa statute at some length. Indeed, Justice BRENNAN criticizes the plurality for examining the safety purpose and "disregarding the intention of Iowa's lawmakers," ante, at 681.
Finally, Justice BRENNAN'S statement that we have strayed from what he regards as the true faith in our recent decision in United States Railroad Retirement Board v. Fritz, 449 U.S. 166, 101 S.Ct. 453, 66 L.Ed.2d 368 (1980), albeit over his vigorous dissent, does not aid his argument. His dissent, while undoubtedly vigorous, was not sufficiently persuasive to deter six Members of the Court from joining that opinion.
14
Consolidated was a plaintiff in Raymond as well as this case.
| 78
|
450 U.S. 503
101 S.Ct. 1221
67 L.Ed.2d 464
Edward J. ROSEWELL, etc., et al., Petitioners,v.LaSALLE NATIONAL BANK, Trustee, etc.
No. 79-1157.
Argued Nov. 10, 1980.
Decided March 24, 1981.
Rehearing Denied May 18, 1981.
See 451 U.S. 1011, 101 S.Ct. 2349.
Syllabus
Under an Illinois statute, real property owners who contest their property taxes are required first to exhaust their available administrative remedy and, if unsuccessful, are then afforded a legal remedy requiring the payment of the taxes under protest and a subsequent state-court challenge. The customary delay from the time of payment until the receipt of refund upon successful protest is two years, and the refund is not accompanied by a payment of interest. The beneficial owner of an apartment building in Cook County, Ill., challenged the tax assessment of her property for a certain tax year, but, after an unsuccessful administrative appeal, refused to pay the taxes and instead brought an action in Federal District Court for injunctive relief against petitioners (the Treasurer and Assessor of Cook County), alleging, inter alia, that by requiring her to pay taxes in excess of the lawful amount, they deprived her of equal protection and due process secured by the Fourteenth Amendment. The District Court dismissed the complaint for want of jurisdiction pursuant to the Tax Injunction Act, which prohibits federal district courts from enjoining the assessment, levy, or collection of state taxes where "a plain, speedy and efficient remedy may be had in the courts of such State." The Court of Appeals reversed, holding that the Tax Injunction Act did not bar federal district court jurisdiction because Illinois' procedure of no-interest refunds after two years was not "a plain, speedy and efficient remedy."
Held : The Illinois refund procedure is "a plain, speedy and efficient remedy" within the meaning of the Tax Injunction Act, thereby barring federal jurisdiction to grant injunctive relief. Pp. 512-528.
(a) The language of the "plain, speedy and efficient remedy" exception appears to require a state-court remedy that meets certain minimal procedural criteria, and the Tax Injunction Act's legislative history supports this procedural interpretation. Here, the Illinois state-court refund procedure provided the taxpayer with a "full hearing and judicial determination" at which she might raise any and all constitutional objections to the taxes, and review was authorized in the higher Illinois courts and ultimately could be obtained in this Court. She did not allege any procedural defect in the Illinois remedy, other than delay, that would preclude preservation and consideration of her federal rights, but rather alleged that Illinois' failure to pay interest on the tax refund made the remedy not "plain, speedy and efficient." Any "federal right" she might have to receive interest could be asserted in the state-court legal proceeding. Pp. 512-515.
(b) With respect to whether the Illinois remedy was "plain," respondent has not alleged that the remedy is uncertain or otherwise unclear. There is no question that under the Illinois procedure, the court will hear and decide any federal claim; paying interest or eliminating delay would not make the remedy any more "plain." Pp. 516-517.
(c) Because the Illinois remedy imposes no unusual hardship on the taxpayer requiring ineffectual activity or an unnecessary expenditure of time or energy, it cannot be said that it is not "efficient." Pp. 517-518.
(d) Assessing the 2-year delay in receiving a refund against the usual time for similar litigation, such delay is not unusual and, under the circumstances of this case, did not fall outside the boundary of a "speedy" remedy. Pp. 518-521.
(e) The Tax Injunction Act's overall purpose to limit drastically federal district court jurisdiction to interfere with so important a local concern as the collection of taxes is consistent with the view that the "plain, speedy and efficient remedy" exception to the Act's prohibition was only designed to require that the state remedy satisfy certain procedural criteria, and that Illinois' refund procedure meets such criteria. It would be unreasonable to construe a statute passed with such a purpose to mean that Congress nevertheless wanted taxpayers from States not paying interest on refunds to have unimpaired access to the federal courts. If Congress had meant to carve out such an expansive exception, some mention of it would be expected and there is none. Pp. 522-524.
(f) Although the Tax Injunction Act had its roots in federal equity practice, nevertheless, where it appears that not every wrinkle of such practice was codified intact, but rather that Congress, among other things, legislated to solve an existing problem by cutting back federal equity jurisdiction, the Act will not be interpreted to incorporate that portion of federal equity practice arguably viewing a no-interest refund remedy as inadequate. Pp. 524-526.
(g) The reasons supporting federal noninterference with state tax administration—such as the dependency of state budgets on the receipt of local tax revenues and the havoc that would be caused if federal injunctive relief against collection of state or local taxes were widely available—are just as compelling today as they were in 1937 when the Tax Injunction Act was passed. Pp. 527-528.
604 F.2d 530, reversed.
Henry A. Hauser, Chicago, Ill., for petitioners.
James L. Fox, Chicago, Ill., for respondent.
Justice BRENNAN delivered the opinion of the Court.
1
The Tax Injunction Act of 1937 provides that "[t]he district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State." 28 U.S.C. § 1341. The question we must decide in this case is whether an Illinois remedy which requires property owners contesting their property taxes to pay under protest and if successful obtain a refund without interest in two years is "a plain, speedy and efficient remedy" within the meaning of the Act.1
2
* LaSalle National Bank is trustee of a land trust for Patricia Cook,2 the beneficial owner of property improved with a 22-unit apartment building in the all-black low-income community of East Chicago Heights, Ill., located in Cook County.3 Respondent alleged that, as of January 1, 1977, her property had a fair market value of $46,000. In accordance with a Cook County ordinance, her property should have been assessed for property tax purposes at 33% of fair market value—$15,180.4 Instead, for the 1977 tax year, the County Assessor assessed the property at $52,150. As a result, respondent's property tax liability was $6,106 instead of $1,775, an overcharge of $4,331.
3
Respondent also claimed that the County Assessor "knowingly as official policy or governmental custom maintained, adopted or promulgated policy statements, regulations, decisions and systems of assessment which have produced egregious disparities in assessments throughout the County." Plaintiff's Complaint ¶ 11, App. 7. In particular, she cited a study of the Illinois Department of Local Government Affairs showing that, for 1975, property in the same class as respondent's was assessed as low as 3% and as high as 973% of fair market value. She furthermore alleged that such disparities in assessments were "far greater in number and size in older, inner city and county areas, owned, inhabited or used to a larger extent by minorities and poorer people." Ibid. Finally, she contended that the Assessor knew that she had previously challenged the 1974, 1975, and 1976 assessments of her property.5
4
Respondent first exhausted her administrative remedy by appealing unsuccessfully for a correction of her 1977 assessment before the Cook County Board of Appeals. Ill.Rev.Stat., ch. 120, §§ 594(1), 596, 597, 598, 599 (1977).6 Her only remaining state remedy was to pay the contested tax under protest, and then to file an objection to the Cook County Collector's Application for Judgment before the Circuit Court of Cook County—in effect a reverse suit for refund.7 §§ 675, 716. Although Illinois' statutory refund procedure could theoretically provide a final resolution of the dispute within one year of payment of the tax under protest,8 respondent alleged that the customary delay from the time of payment until the receipt of refund upon successful protest is two years.9 The tax refund is not accompanied by a payment of interest.10 Clarendon Associates v. Korzen, 56 Ill.2d 101, 109, 306 N.E.2d 299, 303 (1973); Lakefront Realty Corp. v. Lorenz, 19 Ill.2d 415, 422-423, 167 N.E.2d 236, 240-241 (1960).
5
Respondent refused to pay her 1977 property taxes and instead brought this 42 U.S.C. § 1983 action in the United States District Court for the Northern District of Illinois, seeking preliminary and permanent injunctive relief to prevent petitioner Rosewell11 from publishing an advertisement of notice and the intended date of Application for Judgment, from applying for judgment and order of sale against her property, and from selling it. Respondent contended that, by requiring payment of taxes 31/2 times the lawful amount, petitioners deprived her of equal protection and due process secured by the Fourteenth Amendment of the United States Constitution, and violated state constitutional and statutory rights as well. Respondent further alleged that she had no plain, speedy and efficient remedy in the Illinois courts.
6
Petitioners moved to dismiss, claiming that actions challenging state tax assessments are not cognizable under 42 U.S.C. § 1983 and 28 U.S.C. § 1343,12 and that Illinois' statutory refund procedure is a plain, speedy, and efficient remedy even though it fails to pay interest. Defendants' Motion to Dismiss, App. 11.
7
The District Court denied respondent's motion for a preliminary injunction and dismissed the complaint for want of jurisdiction under 28 U.S.C. § 1341.13 App. to Pet. for Cert. 20a-21a. However, the court enjoined petitioner Rosewell from proceeding to judgment and order of sale against respondent's property pending appeal to the United States Court of Appeals for the Seventh Circuit. Fed.Rule Civ.Proc. 62(c). The Court of Appeals reversed the District Court, holding that the Tax Injunction Act did not bar federal district court jurisdiction because Illinois' procedure of no-interest refunds after two years was not "a plain, speedy and efficient remedy." 604 F.2d 530, 536-537 (1979).14 A petition for rehearing and suggestion for rehearing en banc was denied. Id., at 530. We granted certiorari, 445 U.S. 925, 100 S.Ct. 1310, 63 L.Ed.2d 758 (1980), and now reverse.
II
8
At the outset, it must be recognized that the issue we decide is one of statutory construction. Our task is to determine whether the Illinois refund procedure constitutes "a plain, speedy and efficient remedy . . . in the courts of such State" within the meaning of the Tax Injunction Act, 28 U.S.C. § 1341, thereby barring federal jurisdiction to grant injunctive relief. Our review of the plain language of the Act, its legislative history, and its underlying purpose persuades us that the Court of Appeals erred in holding that the Illinois remedy is not "a plain, speedy and efficient remedy."
A.
9
The starting point of our inquiry is the plain language of the statute itself. Reiter v. Sonotone Corp., 442 U.S. 330, 337, 99 S.Ct. 2326, 2330, 60 L.Ed.2d 931 (1979); 62 Cases of Jam v. United States, 340 U.S. 593, 596, 71 S.Ct. 515, 518, 95 L.Ed.2d 566 (1951). See EPA v. National Crushed Stone Assn., 449 U.S. 64, 73, 101 S.Ct. 295, 302, 66 L.Ed.2d 268 (1980). The Tax Injunction Act generally prohibits federal district courts from enjoining state tax administration except in instances where the state-court remedy is not "plain, speedy and efficient." On its face, the "plain, speedy and efficient remedy" exception appears to require a state-court remedy that meets certain minimal procedural criteria. The Court has only occasionally sought to define the meaning of the exception since passage of the Act in 1937. When it has done so, however, the Court has emphasized a procedural interpretation in defining both the entire phrase and its individual word components.
10
Discussing the general meaning of the phrase, the Court, in Tully v. Griffin, Inc., 429 U.S. 68, 74, 97 S.Ct. 219, 223, 50 L.Ed.2d 227 (1976), described its "basic inquiry" as "whether under New York law there is a 'plain, speedy and efficient' way for [the taxpayer] to press its constitutional claims while preserving the right to challenge the amount of tax due." More directly, in Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 300-301, 63 S.Ct. 1070, 1074, 87 L.Ed. 1407 (1943), the Court stated:
11
"[I]t is the court's duty to withhold such relief when, as in the present case, it appears that the state legislature has provided that on payment of any challenged tax to the appropriate state officer, the taxpayer may maintain a suit to recover it back. In such a suit he may assert his federal rights and secure a review of them by this Court. This affords an adequate remedy to the taxpayer, and at the same time leaves undisturbed the state's administration of its taxes." (Emphasis added.)15
12
See Hillsborough v. Cromwell, 326 U.S. 620, 625, 66 S.Ct. 445, 449, 90 L.Ed. 358 (1946) (issue is "whether the State affords full protection to the federal rights").
13
What little can be gleaned from the legislative history of the Act on the phrase "plain, speedy and efficient remedy" lends further support to a procedural interpretation. Senator Bone, the Act's primary sponsor, referred to the "plain, speedy and efficient remedy" provision and then stated: "Thus a full hearing and judicial determination of the controversy is assured." 81 Cong.Rec. 1416 (1937). The Senate Report accompanying the Act mirrors Senator Bone's understanding, adding that "[a]n appeal to the Supreme Court of the United States is available as in other cases." S.Rep.No.1035, 75th Cong., 1st Sess., 2 (1937).
14
The phrase "a plain, speedy and efficient remedy" in the Tax Injunction Act was "modeled" after verbatim language in the Johnson Act of 1934,16 an Act prohibiting federal-court interference with orders issued by state administrative agencies to public utilities. As Senator Bone made clear, "[m]ost of the arguments which were used in support of the Johnson Act . . . apply in like manner" to the Tax Injunction Act. 81 Cong.Rec. 1416 (1937). Our examination of the Johnson Act and its legislative history reveals the same procedural emphasis as found in the Tax Injunction Act and its legislative history. As gloss on the words "a plain, speedy and efficient remedy," the Senate Report on the Johnson Act spoke of state laws that provided for an appeal from the determination of the state agency by any dissatisfied party. S.Rep.No.701, 72d Cong., 1st Sess., 1-2 (1932). The Senate Report continued: "This appeal is taken to the courts of the State, thus giving to both sides of any controversy which may arise a full hearing and judicial determination of the controversy." Id., at 2 (emphasis added.)
15
There is no doubt that the Illinois state-court refund procedure provides the taxpayer with a "full hearing and judicial determination" at which she may raise any and all constitutional objections to the tax. LaSalle National Bank v. County of Cook, 57 Ill.2d 318, 324, 312 N.E.2d 252, 255-256 (1974). Appeal to the higher Illinois courts is authorized, Ill.Rev.Stat., ch. 120, § 675 (1977), and review is ultimately available in this Court, 28 U.S.C. § 1257. Respondent does not allege any procedural defect in the Illinois remedy, other than delay,17 that would preclude preservation and consideration of her federal rights, since she is free to raise her equal protection and due process federal constitutional objections during the Application for Judgment proceedings before the Circuit Court of Cook County.18 Rather, respondent's argument—that Illinois' failure to pay interest on the tax refund makes the remedy not "plain, speedy and efficient"—appears to address a more substantive concern. Whether she has any "federal right" to receive interest—a right she has not asserted and on which we express no view—it would appear that she could assert this right in the state-court proceeding. The procedural mechanism for correction of her tax bill remains the same, however, whether interest is paid or not.19
B
16
A procedural interpretation of the phrase "a plain, speedy and efficient remedy," and the procedural sufficiency of Illinois' remedy, are supported further by analysis of the phrase's individual words. According to the 1934 edition of Webster's New International Dictionary, plain means "clear" or "manifest," speedy means "quick," efficient means "characterized by effective activity," and a remedy is the "legal means to recover a right . . . or obtain redress for . . . a wrong." Webster's New International dictionary of the English Language 819, 1878, 2106, 2418 (2d ed. 1934).20
17
While the Court has never addressed the meaning of the word "speedy," it has interpreted the words "plain" and "efficient." Thus, the Court suggested that "uncertainty concerning a State's remedy may make it less than 'plain' under 28 U.S.C. § 1341." Tully v. Griffin, Inc., 429 U.S., at 76, 97 S.Ct., at 224. Earlier cases, without making a direct connection to the word "plain," have held that "uncertainty" surrounding a state-court remedy lifts the bar to federal-court jurisdiction. Hillsborough v. Cromwell, 326 U.S., at 625-626, 66 S.Ct., at 449.21 Respondent has made no argument that the Illinois refund procedure is uncertain or otherwise unclear. There is no question that under the Illinois procedure, the court will hear and decide any federal claim. Paying interest or eliminating delay would not make the remedy any more "plain."
18
This Court's interpretation of the word "efficient" has also stressed procedural elements. In Tully, the Court commented that "a State's remedy does not become 'inefficient,' merely because a taxpayer must travel across a state line in order to resist or challenge the taxes sought to be imposed." 429 U.S., at 73, 97 S.Ct., at 222. In addition, without explicitly mentioning the word "efficient," we have permitted federal-court jurisdiction when the taxpayer's state-court remedy would require a multiplicity of suits, Georgia Railroad & Banking Co. v. Redwine, 342 U.S. 299, 303, 72 S.Ct. 321, 323, 96 L.Ed. 335 (1952) (where remedy "would require the filing of over three hundred separate claims in fourteen different counties to protect the single federal claim asserted by [the taxpayer]"), or when the remedy would allow a challenge against only one of many taxing authorities, id., at 301, 303, 72 S.Ct., at 322, 323 (where suit-for-refund remedy applied only to state taxes, yet taxpayer railroad also wanted to challenge on the same basis taxes paid to counties, school districts, and municipalities). Because the Illinois remedy imposes no unusual hardship on respondent requiring ineffectual activity or an unnecessary expenditure of time or energy, we cannot say that it is not "efficient."22
19
This Court has never expressly discussed the meaning of the word "speedy," an issue that is squarely presented in this case. We must decide whether Illinois' refund after two years qualifies as a "speedy" remedy. "Speedy" is perforce a relative concept, and we must assess the 2-year delay against the usual time for similar litigation. It surely is no secret that state and federal trial courts have been beset by docket congestion and delay for many years.23 Whether this is a necessary, let alone a reasonable, condition of 20th-century litigation is beside the point: The fact of the matter is that legal conflicts are not resolved as quickly as we would like.
20
In 1976, the median number of days from filing a complaint to disposition of a civil trial matter in 13 urban trial courts ranged from 357 to 980. National Center for State Courts, Justice Delayed 10-11 (1978).24 In 7 of the 13, over 30% of the civil cases took more than two years from start to finish. Id., at 13. The Cook County Circuit Court had a similar record: from 1974 to 1975, the average time from date of filing to verdict was about 40 months. U. S. Department of Justice, State Court Caseload Statistics: The State of the Art 7 (1978). Federal district courts have not fared much better. As of 1980, the median time interval from filing to disposition for civil cases going to trial was 20 months; 10% of those took more than 46 months. Annual Report of the Director of the Administrative Office of the U.S. Courts 81, A-30 (1980). For the United States District Court for the Northern District of Illinois, the District in which respondent brought this suit, the median time interval was 23 months, with 10% of all cases over 53 months. Id., at A-31.25
21
Cast in this light, respondent's 2-year wait, regrettably, is not unusual. Nowhere in the Tax Injunction Act did Congress suggest that the remedy just be the speediest.26 The payment of interest might make the wait more tolerable, but it would not affect the amount of time necessary to adjudicate respondent's federal claims. Limiting ourselves to the circumstances of the instant case, we cannot say that respondent's 2-year delay falls outside the boundary of a "speedy" remedy.27
C
22
The overall purpose of the Tax Injunction Act is consistent with the view that the "plain, speedy and efficient remedy" exception to the Act's prohibition was only designed to require that the state remedy satisfy certain procedural criteria, and that Illinois' refund procedure meets such criteria. The statute "has its roots in equity practice, in principles of federalism, and in recognition of the imperative need of a State to administer its own fiscal operations." Tully v. Griffin, Inc., 429 U.S., at 73, 97 S.Ct., at 222.28 This last consideration was the principal motivating force behind the Act: this legislation was first and foremost a vehicle to limit drastically federal district court jurisdiction to interfere with so important a local concern as the collection of taxes. 81 Cong.Rec. 1415 (1937) (remarks of Sen. Bone); Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S., at 301, 63 S.Ct., at 1074 (Act "predicated upon the desirability of freeing, from interference by the federal courts, state procedures which authorize litigation challenging a tax after the tax has been paid").29
23
When it passed the Act, Congress knew that state tax systems commonly provided for payment of taxes under protest with subsequent refund as their exclusive remedy. The Senate Report to the Act noted:
24
"It is the common practice for statutes of the various States to forbid actions in State courts to enjoin the collection of State and county taxes unless the tax law is invalid or the property is exempt from taxation, and these statutes generally provide that taxpayers may contest their taxes only in refund actions after payment under protest. This type of State legislation makes it possible for the States and their various agencies to survive while long-drawn-out tax litigation is in progress." S.Rep.No.1035, 75th Cong., 1st Sess., 1 (1937).
25
See H.R.Rep.No.1503, 75th Cong., 1st Sess., 2 (1937). See also Matthews v. Rodgers, 284 U.S. 521, 526, 52 S.Ct. 217, 220, 76 L.Ed. 447 (1932).
26
It is only common sense to presume that Congress was also aware that some of these same States did not pay interest on their refunds to taxpayers, following the then-familiar rule that interest in refund actions was recoverable only when expressly allowed by statute. 3 T. Cooley, Law of Taxation, § 1308, pp. 2596-2597 (4th ed. 1924).30 It would be wholly unreasonable, therefore, to construe a statute passed to limit federal-court interference in state tax matters to mean that Congress nevertheless wanted taxpayers from States not paying interest on refunds to have unimpaired access to the federal courts. If Congress had meant to carve out such an expansive exception, one would expect to find some mention of it. The statute's broad prophylactic language is incompatible with such an interpretation.
III
27
For the most part, respondent rests her case on the persuasiveness of a syllogism: the Tax Injunction Act is coterminous with pre-1937 federal equity treatment of challenges to state taxes; federal equity practice at that time viewed a no-interest refund remedy as inadequate;31 therefore, it must follow that the Tax Injunction Act would view a no-interest refund remedy as inadequate, thereby authorizing federal jurisdiction. Brief for Respondent 21. This argument also forms part of the basis for the Court of Appeals' decision. 604 F.2d, at 533, n. 4. And even petitioners, Brief for Petitioners 40, suggest that the Tax Injunction Act is "a congressional confirmation of the Court's prior federal equity practice in the area of state and local taxation."32
28
We are unpersuaded. It is true that post-1937 Court cases have suggested that the Tax Injunction Act recognized and sanctioned pre-existing federal equity practice. See Moe v. Salish & Kootenai Tribes, 425 U.S. 463, 470, 96 S.Ct. 1634, 1639, 48 L.Ed.2d 96 (1976); Hillsborough v. Cromwell, 326 U.S., at 622-623, 66 S.Ct., at 447-448; Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S., at 298-299, 63 S.Ct., at 1073. But these cases do no more than confirm that "the statute has its roots in equity practice," Tully v. Griffin, Inc., 429 U.S., at 73, 97 S.Ct., at 222 and that it was a longstanding rule of federal equity to keep out of state tax matters as long as a "plain, adequate and complete remedy" could be had at law. Hillsborough v. Cromwell, supra, 326 U.S., at 622-623, 66 S.Ct., at 447-448. Nothing in our decisions suggests that every wrinkle of federal equity practice was codified, intact, by Congress.33
29
Indeed, Congress, among other things, legislated to solve an existing problem by cutting back federal equity jurisdiction. Senator Bone commented that the "existing practice of the Federal courts to entertain tax-injunction suits make[s] it possible for foreign corporations to withhold from a State and its governmental subdivisions taxes in such vast amounts and for such long periods as to disrupt State and county finances, and thus make it possible for such corporations to determine for themselves the amount of taxes they will pay." 81 Cong.Rec. 1416 (1937) (emphasis added). See S.Rep.No.1035, 75th Cong., 1st Sess., 2 (1937). He furthermore noted that "[p]rovision is made that the bill is not to affect suits pending at the time of its enactment." 81 Cong.Rec., at 1415. Thus, Congress plainly did not intend to permit the federal courts after passage of the Tax Injunction Act to entertain suits in all cases cognizable by them prior to the Act.34
30
Furthermore, Congress did not equate § 1341's "plain, speedy and efficient" with equity's "plain, adequate and complete." Ever since the early days of Congress, this "plain, adequate and complete" standard of federal equity practice had been codified into statutory form. 1 Stat. 82.35 And it was not until 1948, more than 10 years after passage of the Tax Injunction Act, that the "Suits in Equity" statute was repealed. 28 U.S.C. § 384 (1946 ed.) (repealed June 25, 1948). Against this background, we will not interpret the Tax Injunction Act as substantially redundant of § 384.
IV
31
Finally, we note that the reasons supporting federal noninterference are just as compelling today as they were in 1937. If federal injunctive relief were available,
32
"state tax administration might be thrown into disarray, and taxpayers might escape the ordinary procedural requirements imposed by state law. During the pendency of the federal suit the collection of revenue under the challenged law might be obstructed, with consequent damage to the State's budget, and perhaps a shift to the State of the risk of taxpayer insolvency. Moreover, federal constitutional issues are likely to turn on questions of state tax law, which, like issues of state regulatory law, are more properly heard in the state courts." Perez v. Ledesma, 401 U.S. 82, 128, n. 17, 91 S.Ct. 674, 699, n. 17, 27 L.Ed.2d 701 (1971) (BRENNAN, J., concurring in part and dissenting in part).
33
The compelling nature of these considerations is underscored by the dependency of state budgets on the receipt of local tax revenues. In 1978, States derived over 61% of their revenue from property, sales, income, and other taxes. Advisory Commission on Intergovernmental Relations, Significant Features of Fiscal Federalism 53, 56 (1980). For Illinois, the percentage was even higher—67.4%. Ibid. The property tax is by far the most important source of tax revenue for cities and counties. For the year 1977-1978, almost 33% of all their income nationwide came from the local property tax; for Illinois' local governments, the amount was greater—39.2%. Id., at 78.
34
The experience of Cook County itself demonstrates how ominous would be the potential for havoc should federal injunctive relief be widely available. The county collected over $1.5 billion in real estate taxes for the tax year 1975. Ganz & Laswell, Review of Real Estate Assessments—Cook County (Chicago) vs. Remainder of Illinois, 11 John Marshall J. Prac. & Proc. 19, and n. 2 (1977). During the same year, the number of complaints filed with the Cook County Board of Appeals totaled 22,262. Id., at 31, n. 61. We may readily appreciate the difficulties encountered by the county should a substantial portion of its rightful tax revenue be tied up in injunction actions.36 If each of these complaints alleged entitlement to a refund of around $5,000, as does respondent, over $113 million in revenues potentially could be encumbered in federal-court litigation. See also City of New York, Annual Report of the Tax Commission for Fiscal Year 1978-1979, p. 14 (1979) (41,449 applications for correction of taxes owed concerning 48,170 parcels of land, of which 40,793 applications concerning 47,512 parcels of land involved hearings).
35
Accordingly, we hold that Illinois' legal remedy that provides property owners paying property taxes under protest a refund without interest in two years is "a plain, speedy and efficient remedy" under the Tax Injunction Act.
36
Reversed.
37
Justice BLACKMUN, concurring.
38
I join the Court's opinion, but I must confess that in doing so I participate in the decision with a distinct lack of enthusiasm. I am aware of just how frustrating it can be for a conscientious property taxpayer who encounters what appears to him to be unfairness, arbitrariness, delay, and an inadequacy of redress even though he might ultimately prevail on his basic contentions about existing property tax assessment and collection methods. Nearly every municipality encounters like criticism. Justice STEVENS' dissent, however, indicates that Cook County's system surely is not one of the better ones.
39
But the Tax Injunction Act was passed for a specific purpose and I very much doubt that the cure, although it may provide a headache, is worse than the disease.
40
The Court's opinion demonstrates, I think, that the remedy provided by Illinois law qualifies, though perhaps only barely, as "plain, speedy and efficient," within the meaning of the Tax Injunction Act, and that federal jurisdiction to grant injunctive relief is therefore statutorily barred. Illinois—and particularly Cook County—may have little reason to be proud of the system, but it seems to pass muster under the Act. One might well hope, even though forlornly, that that system and its administration will be improved so that uncomfortable and distressing litigation like this case need not be pursued.
41
Justice STEVENS, with whom Justice STEWART, Justice MARSHALL, and Justice POWELL join, dissenting.
42
In its discussion of the jurisdictional question presented by this case, the Court correctly assumes that the administration of Cook County's system of taxing real property has violated respondent's federal constitutional rights. The question is whether she must be denied equitable relief in a federal court because Illinois affords her "a plain, speedy and efficient remedy."
43
Year after year Cook County requires respondent to pay a tax that is three times as great as the amount actually due and then, after a 2-year delay, the county refunds the overassessment without interest. Because the outcome of this annual ritual is predictable, the taxpayer's remedy is "plain" and because only about 70% of the Nation's litigation is processed more rapidly, the remedy is also "speedy and efficient." That is the consequence of the Court's view that Congress was concerned with nothing more than "minimal procedural criteria" when it enacted the Tax Injunction Act.1 In my view the substance of the State's remedy must also be considered. If the substance of the remedy is irrelevant, a computerized calculation accompanied by a preprinted rejection slip would qualify as a "plain, speedy and efficient remedy." Because I am persuaded that a reading of the federal statute that would lead to such an absurd result is manifestly incorrect, and because the Illinois refund remedy cannot fairly be characterized as adequate, I respectfully dissent.
44
* If one reads the 1937 Act against its historical background, the conclusion is inescapable that Congress did not intend an inadequate state remedy to oust a federal court of jurisdiction over a taxpayer's constitutional claim. This Court has often recognized that the statute has its roots in pre-existing equity practice. Moe v. Salish & Kootenai Tribes, 425 U.S. 463, 470, 96 S.Ct. 1634, 1639, 48 LEd.2d 96 (1976); Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 298, 63 S.Ct. 1070, 1073, 87 L.Ed. 1407 (1943). See also Tully v. Griffin, Inc., 429 U.S. 68, 73, 97 S.Ct. 219, 222, 50 L.Ed.2d 227 (1976).2 Both the statutory and the judicial predecessors of the Tax Injunction Act emphasized the substance of the state remedy. Section 16 of the Judiciary Act of 1789 provided that "suits in equity shall not be sustained in either of the courts of the United States, in any case where plain, adequate and complete remedy may be had at law." 1 Stat. 82. In 1932, the Court, while recognizing the force of this rule of equity in suits to enjoin the collection of state taxes, nevertheless indicated the importance of the substance of the state remedy:
45
"The effect of [Section 16 of the Judiciary Act of 1789], which was but declaratory of the rule in equity, established long before its adoption, is to emphasize the rule and to forbid in terms recourse to the extraordinary remedies of equity where the right asserted may be fully protected at law. See Deweese v. Reinhard, 165 U.S. 386, 389, 17 S.Ct. 340, 341, 41 L.Ed. 757; New York Guaranty Co. v. Memphis Water Co., 107 U.S. 205, 214, 2 S.Ct. 279, 286, 27 L.Ed. 484.
46
"The reason for this guiding principle is of peculiar force in cases where the suit, like the present one, is brought to enjoin the collection of a state tax in courts of a different, though paramount sovereignty. The scrupulous regard for the rightful independence of state governments which should at all times actuate the federal courts, and a proper reluctance to interfere by injunction with their fiscal operations, require that such relief should be denied in every case where the asserted federal right may be preserved without it. Whenever the question has been presented, this Court has uniformly held that the mere illegality or unconstitutionality of a state or municipal tax is not in itself a ground for equitable relief in the courts of the United States. If the remedy at law is plain, adequate, and complete, the aggrieved party is left to that remedy in the state courts . . . ." Matthews v. Rodgers, 284 U.S. 521, 525, 52 S.Ct. 217, 219, 76 L.Ed. 447. (Emphasis added.)3
47
The legislative history of the Tax Injunction Act does not support the notion that Congress intended the Act to alter the standard by eliminating consideration of the substance of the state remedy. The principal sponsor of the Act, Senator Bone, indicated that the statute assured "a full hearing and judicial determination of the controversy." 81 Cong.Rec. 1416 (1937). See also S.Rep.No.1035, 75th Cong., 1st Sess., 2 (1937) (hereinafter 1937 Senate Report). The terms "full hearing" and "judicial determination" surely imply that the remedy may not be an empty ritual. Indeed, Senator Bone emphasized that "the bill does not take away any equitable right of a taxpayer, or deprive him of a day in court." 81 Cong.Rec. 1416 (1937). See also 1937 Senate Report, at 2.4 The legislative history does not justify the Court's miserly reading of the statute.
48
The conclusion that the substance of the state remedy must be considered does not rest on the premise that Congress codified intact every "wrinkle" of federal equity practice. Clearly, Congress intended the Tax Injunction Act to restrict the equity jurisdiction of the federal courts. Specifically, Congress wanted to eliminate the abuse of diversity jurisdiction by foreign corporations which were able to frustrate the state taxing process by obtaining injunctions in federal court.5 Moreover, as the Court recognizes, ante, at 522, n. 28, the Act was a response to what was perceived as an unwarranted expansion of federal jurisdiction in suits to enjoin state officers that had developed in the wake of Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908).6 The Tax Injunction Act shifted the focusof the federal courts from a determination of whether the complainant had an adequate remedy at law to a consideration of whether he had a sufficient remedy—either in equity or at law—in the state courts.7 Although Congress thus gave important protection to state tax administration by cutting back federal equity jurisdiction, there is no reason to believe that Congress intended the expansion of the types of remedies that defeat federal jurisdiction to be accompanied by a drastic relaxation of the scrutiny given to those remedies.8 If Congress did intend such a relaxation, the Tax Injunction Act's roots in equity are shallow indeed.
49
This Court has consistently employed the equity adequacy standard in construing the Tax Injunction Act. In 1944—only seven years after the Act was passed—the Court stated that the District Court had jurisdiction because of "the uncertainty surrounding the adequacy of the Connecticut remedy." Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101, 105-106, 65 S.Ct. 152, 154, 89 L.Ed. 101. In 1946, in Hillsborough v. Cromwell, 326 U.S. 620, 625, 66 S.Ct. 445, 449, 90 L.Ed. 358; the Court held that "uncertainty" as to whether the state remedy "affords full protection to the federal rights" was sufficient to demonstrate that the remedy was not adequate.9 And recently, in Tully v. Griffin, Inc., 429 U.S., at 74, 97 S.Ct., at 223, the Court indicated that to be sufficient under the statute the remedy must permit the taxpayer "to press its constitutional claims while preserving the right to challenge the amount of the tax due."10 Thus our cases support the theory that Congress, rather than making an unexplained and drastic change in the traditional equity standard as to adequacy, assumed that the prior standard would apply.11
50
This interpretation of the Tax Injunction Act and its history is consistent with the purposes of the Act. By including the "plain, speedy and efficient" exception to the statutory prohibition of federal equity jurisdiction, Congress indicated its clear intent to preserve federal-court jurisdiction unless some state remedy existed. If the federal courts are limited by the Tax Injunction Act to a consideration of the procedural mechanics of the state remedy, and are forbidden to consider the substance of such a remedy, then a state remedy which could not possibly afford any relief or which had the potential for only nominal relief would defeat federal jurisdiction.12 This form-over-substance interpretation renders the exception contained in the Act meaningless, because there would be little purpose in denying a federal remedy to a litigant and sending him to state court to pursue a state remedy—albeit a quick and certain one—that provided no relief.13 A futile state remedy is not significantly different from no remedy at all. Similarly, an inadequate state remedy is not analytically different from a state procedure that provides a remedy as to only a portion of the litigant's claims. Such an incomplete remedy will not defeat federal jurisdiction. Georgia Railroad & Banking Co. v. Redwine, 342 U.S. 299, 303, 72 S.Ct. 321, 333, 96 L.Ed. 335 (1952).14 Therefore, in my view, if the state remedy does not provide adequate protection to the federal right, a federal remedy continues to be available.15
II
51
The inadequacy of the Illinois procedure is much more than a mere failure to pay interest on overassessments. If we take the allegations of the complaint as true, as we must, it is apparent that four factors combine to make the Illinois remedial scheme demonstrably unjust.
52
First, the tax assessments themselves reveal gross inequities. Not only was respondent's property admittedly assessed at 3 times its proper assessment value, but other properties in the same class have been assessed at widely divergent rates, ranging from a tiny fraction of actual value to amounts approximately 10 times the true worth.16 The county's practices apparently give the tax assessor a license to engage in arbitrary and invidious discrimination.
53
Second, because the overassessment of respondent's property was repeated year after year, notwithstanding her formal protests and the manifest error in the original assessment, it is apparent that the county's procedures do not adequately avoid the risk of repetitive error.17 The case might well be different if it revealed an isolated mistake affecting only one tax year. But an evaluation of the State's remedy must involve consideration not only of the fairness of the refund procedure, but also of the taxpayer's ability to prevent the same mistake from being made year after year.18
54
Third, although the 2-year period which the county requires to process a refund claim might well be tolerable if its remedy were adequate in all other respects, that time period aggravates each of the other shortcomings.19 Indeed, like the fourth factor the failure to pay interest—it actually provides the county with an incentive to make overassessments, because the county has the cost-free use of the taxpayer's money while her claim is being processed.
55
Finally, the failure to pay any interest at all, in combination with the foregoing factors, makes it a virtual certainty that the taxpayer's ultimate recovery will be worth only a fraction of the actual harm caused by the county's wrong. Cases decided prior to the Tax Injunction Act indicated that state remedies which did not provide for the payment of interest were not sufficient to defeat federal equity jurisdiction. See Educational Films Corp. v. Ward, 282 U.S. 379, 386, n. 2, 51 S.Ct. 170, 171, 75 L.Ed. 400 (1931); Hopkins v. Southern California Telephone Co., 275 U.S. 393, 48 S.Ct. 180, 72 L.Ed. 329 (1928); Nutt v. Ellerbe, 56 F.2d 1058, 1062 (EDSC 1932) (three-judge court); Procter & Gamble Distributing Co. v. Sherman, 2 F.2d 165 (S.D.N.Y.1924). See also Lockwood, Maw, & Rosenberry, The Use of the Federal Injunction in Constitutional Litigation, 43 Harv.L.Rev. 426, 435 (1930).20 Post-Act cases provide support for the contention that a refund must provide interest in order to defeat federal jurisdiction. United States v. Livingston, 179 F.Supp. 9, 15 (EDSC) (three-judge court), aff'd per curiam, 364 U.S. 281, 80 S.Ct. 1611, 4 L.Ed.2d 1719 (1960); United States v. Department of Revenue, 191 F.Supp. 723, 726-727 (ND Ill.), vacated, 368 U.S. 30, 82 S.Ct. 146, 7 L.Ed.2d 90 (1961).21
56
It is not necessary in this case, however, to decide whether the failure to pay interest alone would render a state remedy inadequate.22 Few remedies fully compensate the victim of official wrongdoing, but surely one would not characterize a remedy that could never exceed one-half or two-thirds of the amount taken as a complete and adequate remedy. Yet if a county may collect 3 to 10 times the amount of tax that a citizen owes and use the excess for two years without paying any interest, the value of that which is ultimately returned is not complete or adequate compensation for the value of what was unjustly taken.23
57
The Court seems to assume that the nonpayment of interest has no effect on the amount of time that will be spent in processing refund claims.24 In my opinion the Court is quite wrong. When no interest is paid—or when the rate of interest on judgments is significantly lower than the prevailing market rate the law rewards the dilatory defendant who can postpone the ultimate day of reckoning for as long as possible. The same powerful market forces are at work when a public body is the defendant. Whether or not one agrees with the opinion of the Court of Appeals that the payment of interest is an essential ingredient of any adequate refund remedy, it seems perfectly clear that, given the factors disclosed by this record, the remedy afforded by Illinois is indeed inadequate.25
58
It follows that federal jurisdiction is not defeated by the Tax Injunction Act and the judgment of the Court of Appeals should therefore be affirmed.
1
This Court expressly did not decide whether omission to provide interest on a successful refund application rendered a state remedy not "plain, speedy and efficient," in Department of Employment v. United States, 385 U.S. 355, 358, 87 S.Ct. 464, 466, 17 L.Ed.2d 414 (1966).
2
Patricia Cook, the real party in interest, is the beneficial owner of Illinois Land Trust No. 44891, of which LaSalle National Bank serves as trustee. Although she was not a named party in this litigation, this opinion will nevertheless refer to her as the respondent.
3
The facts as stated in this opinion are drawn largely from respondent's complaint. For purposes of our consideration, the allegations of the complaint are accepted as true. Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U.S. 172, 174-175, 86 S.Ct. 347, 348-49, 15 L.Ed.2d 247 (1965).
4
Article IX, § 4(b) of the Illinois Constitution provides that, subject only to limitations prescribed by the State's General Assembly, counties with populations of more than 200,000, which includes Cook County, may classify real property for purposes of taxation. The classification must be reasonable, and the assessments uniform within each class. Moreover, the level of assessment of the highest class cannot exceed 21/2 times the level of assessment of the lowest class in the county. Under authority of the Illinois Constitution, Art. IX, § 4, the Illinois General Assembly passed legislation requiring that any "such classification must be established by ordinance of the county board." Ill.Rev.Stat., ch. 120, § 501a (1977).
Pursuant to this authority, the Cook County Board of Commissioners passed the following ordinance:
"Section 2. Real estate is divided into the following assessment classes:
"Class 1: Unimproved real estate.
"Class 2: Real estate used as a farm, or real estate used for residential purposes when improved with a house, an apartment building of not more than six living units, or residential condominium, a residential cooperative or a government-subsidized housing project if required by statute to be assessed in the lowest assessment category.
"Class 3: All improved real estate used for residential purposes which is not included in Class 2.
"Class 4: Real estate owned and used by a not-for-profit corporation in furtherance of the purposes set forth in its charter unless used for residential purposes. If such real estate is used for residential purposes it shall be classified in the appropriate residential class.
"Class 5: All real estate not included in any of the above four classes.
"Section 3. The Assessor shall assess, and the Board of Appeals shall review assessments on real estate in the various classes at the following percentages of market value:
"Class 1:—22%
"Class 2:—17%
"Class 3:—33%
"Class 4:—30%
"Class 5:—40%"
Cook County, Ill., Real Property Assessment Classification Ordinance, §§ 2, 3 (originally enacted Dec. 17, 1973, as amended through June 6, 1977).
Respondent's property qualified as Class 3 real estate.
5
Respondent had previously challenged her 1974, 1975, and 1976 property tax assessments, first by appealing to the Board of Appeals, and then by objecting in December 1975, November 1976, and December 1977 respectively to the Collector's annual Applications for Judgment. The Circuit Court of Cook County, noting that the parties had agreed to a compromise and settlement at a pretrial conference, Ill.Rev.Stat., ch. 120, § 675a (1977), issued three separate judgments simultaneously on March 16, 1978, and ordered refunds to respondent on the erroneously collected portions of her protested tax payments, for $4,586.24, $3,656.29, and $3,937.66 respectively. Respondent had asked for refunds of $5,700, $4,750, and $5,452.41 for the three years.
6
To challenge a property tax assessment, a Cook County property owner must follow a specific statutory procedure. See generally Ganz & Laswell, Review of Real Estate Assessments—Cook County (Chicago) vs. Remainder of Illinois, 11 John Marshall J. Prac. & Proc. 19 (1977); Parham, Procedures For Obtaining Relief With Respect To Property Tax Assessments and Rates, 61 Ill.Bar J. 306 (1973). The taxpayer may file a written complaint with the County Assessor and is thereafter entitled to a hearing. Ill.Rev.Stat., ch. 120, § 578 (1977). If no relief is obtained, the taxpayer may appeal to the Board of Appeals of Cook County for correction of the assessment. §§ 594(1), 596, 597, 598, 599. The Board must forward one copy of the complaint to the County Assessor. § 598. Before seeking a legal remedy in state court, the taxpayer must exhaust the available administrative remedy before the Board of Appeals by filing a complaint. People ex rel. Korzen v. Fulton Market Cold Storage Co., 62 Ill.2d 443, 446-447, 343 N.E.2d 450, 452, cert. denied, 429 U.S. 833, 97 S.Ct. 97, 50 L.Ed.2d 98 (1976).
7
After exhaustion of the Board of Appeals' administrative remedy, the taxpayer's legal remedy requires payment of the tax under protest and a subsequent court challenge. Ill.Rev.Stat., ch. 120, §§ 675, 716 (1977). See Clarendon Associates v. Korzen, 56 Ill.2d 101, 104, 306 N.E.2d 299, 301 (1973). The tax is due in two installments. Ill.Rev.Stat., ch. 120, §§ 705, 705.1 (1977). The taxpayer must file a written protest along with
the second installment payment setting forth grounds for the objection to the tax. § 675. Then, the Collector of Cook County publishes an advertisement giving notice and stating the date of his intended application to the Circuit Court of Cook County for judgment fixing the correct amount of any tax paid under protest. § 706. Although the month of October is the apparent target date for applying for judgment, § 710, respondent contends that the Cook County Collector's applications are not made until late November or early December, Brief for Respondent 14, n. 14. The Collector at the same time applies to the Circuit Court for judgment for sale of delinquent lands and lots whose owners have failed to pay their property tax bills. § 706.
Once the Collector's Application for Judgment is filed with the Circuit Court, the taxpayer must file a written objection to the application within a period of time specified by the judge, stating his reasons for challenging the tax. The taxpayer may raise constitutional challenges to the assessment in his objection. LaSalle National Bank v. County of Cook, 57 Ill.2d 318, 324, 312 N.E.2d 252, 255-256 (1974). After the filing of the objection, the court must hold a settlement conference between the two sides within 90 days. Ill.Rev.Stat., ch. 120, § 675a (1977). If no settlement is reached, the court must upon demand of either party set the matter for hearing within 90 days of the conference, and decide the case. §§ 675a, 716. Finally, the court enters judgment and orders a refund for any or all of the tax erroneously paid by the taxpayer. §§ 675, 716. The dissatisfied taxpayer may appeal any such judgment to the higher court of Illinois. § 675.
Illinois courts grant equitable relief by way of injunction against collection of property taxes only when the tax is unauthorized by law or when the tax is levied on exempt properties, LaSalle National Bank v. County of Cook, supra, at 323, 312 N.E.2d, at 255, on the basis that the state statutory refund procedure is an adequate legal remedy. Ibid. It has been suggested, however, that in certain cases of fraudulently excessive assessments, the statutory remedy will be found inadequate and an equitable remedy will lie. See Clarendon Associates v. Korzen, supra, at 108, 306 N.E.2d, at 303. Accord, Chicago Sheraton Corp. v. Zaban, 71 Ill.2d 85, 92-93, 15 Ill.Dec. 634, 638, 373 N.E.2d 1318, 1322, appeal dism'd, 439 U.S. 998, 99 S.Ct. 602, 58 L.Ed.2d 672 (1978); LaSalle National Bank v. County of Cook, supra, at 323, 312 N.E.2d, at 255; 28 East Jackson Enterprises, Inc. v. Cullerton, 523 F.2d 439, 441-442 (CA7 1975), cert. denied, 423 U.S. 1073, 96 S.Ct. 856, 47 L.Ed.2d 83 (1976). Neither petitioners nor respondent suggests that respondent could have obtained equitable relief.
8
For instance, respondent's 1976 tax protest was resolved within one year from the date of payment. Plaintiff's Complaint ¶ 14, App. 9.
9
For purposes of their motion to dismiss in Federal District Court, petitioners agreed that the delay was two years. Tr. of Oral Arg. 9.
10
Respondent claimed that, based on an 8% average prime rate for the 3-year period during which she paid taxes under protest, she lost approximately $2,000 of potential interest on the use of her money. Plaintiff's Complaint ¶ 14, App. 8-9.
11
Respondent sued Edward J. Rosewell, the Treasurer of Cook County, and Thomas M. Tully, the County Assessor.
12
Petitioners likewise urge here that the District Court lacked jurisdiction under 28 U.S.C. § 1343(3). Since the "Question Presented" in their petition for certiorari did not refer to this issue, Pet. for Cert. 2, we question that it is even properly before us. In any event, our resolution of the case makes it unnecessary to address this additional contention.
13
The District Court stated:
"1. The availability of equitable and declaratory relief in the Illinois state courts provides the plaintiff with a 'plain, speedy and efficient' remedy. Tully v. Griffin, 429 U.S. 68, 97 S.Ct. 219, 50 L.Ed.2d 227 (1976).
"2. The non-payment of interest on refunds pursuant to Sections 675 and 716 of Chapter 120, Illinois Revised Statutes, does not render the remedy in Illinois courts not 'plain, speedy and efficient.' " App. to Pet. for Cert. 20a-21a.
14
The Court of Appeals also held that the availability of a § 1983 action in state court does not bar federal jurisdiction under the Tax Injunction Act. 604 F.2d, at 540. Because of the result in this case, we do not reach this issue.
15
Although the issue in Great Lakes concerned the availability of federal declaratory relief rather than the scope of the Tax Injunction Act itself, the decision was predicated on "[t]he considerations which persuaded federal courts of equity not to grant relief . . . and which led to the enactment of the [Tax Injunction] Act." 319 U.S., at 300, 63 S.Ct., at 1074. We have no doubt that, had the case presented an injunction suit, the Court would have found it precluded under the Tax Injunction Act.
16
The Johnson Act, 28 U.S.C. § 1342 (emphasis added), states in pertinent part:
"The district court shall not enjoin, suspend or restrain the operation of, or compliance with, any order affecting rates chargeable by a public utility and made by a State administrative agency or a rate-making body of a State political subdivision, where
* * * * *
"(4) A plain, speedy and efficient remedy may be had in the courts of such State."
17
This argument is discussed infra, at 518-521.
18
Although respondent could have raised federal constitutional claims in her objection to the Collector's Application for Judgment, she expressly declined to do so in her prior objections in 1974, 1975, and 1976. For example, her objection to the 1976 tax bill stated: "Objector reserves to the federal courts the adjudication of its rights under the United States Constitution. . . ." Objections for 1976, p. 8, ¶ 8. She did claim that the ordinance and assessment were violations of equal protection and due process under the Illinois Constitution. Id., at 9, ¶ 11.
19
The dissent construes our opinion to mean that "a state remedy which could not possibly afford any relief or which had the potential for only nominal relief would defeat federal jurisdiction." Post, at 537 (footnote omitted). The dissent thus concludes that, under our view, "a computerized calculation accompanied by a preprinted rejection slip would qualify as a 'plain, speedy and efficient remedy.' " Post, at 530. But our opinion suggests nothing of the kind. We explicitly state that a state remedy must "provid[e] the taxpayer with a 'full hearing and judicial determination' at which she may raise any and all constitutional objections to the tax." Supra, at 514. The dissent's hypothetical computer-card remedy would hardly meet this requirement.
The Tax Injunction Act embodied Congress' decision to transfer jurisdiction over a class of substantive federal claims from the federal district courts to the state courts, as long as state-court procedures were "plain, speedy and efficient" and final review of the substantive federal claim could be obtained in this Court. Under the Illinois refund procedure, a taxpayer may raise all constitutional objections, including those based on the State's failure to pay interest or to return all unconstitutionally collected taxes, in the Illinois legal refund proceeding, supra, at 514, after which the litigants have an opportunity to seek review in this Court. The Act contemplates nothing more.
20
Neither the opinion below nor the brief for respondent specifies whether the remedy fails because it is not "plain," not "speedy," not "efficient," or not a "remedy" at all. The superficial linguistic difficulty of describing interest payments in these terms can be readily observed. Indeed at oral argument, respondent's counsel had some difficulty deciding under which of the words the Illinois remedy foundered:
"QUESTION: Do you equate inadequate with inefficient?
"MR. FOX: Yes, sir. 'Inadequate' has been used commonly in the federal courts, sir, Mr. Chief Justice, with the 'PS&E,' plain, speedy, and efficient.
* * * * *
"QUESTION: Well, what you're saying, it seems to me, is that you treat 'efficient' as a synonym for 'adequate.' And this remedy is not efficient, that is, adequate, because it isn't speedy.
"MR. FOX: Nor is it plain.
* * * * *
"QUESTION: Well, I'm not sure what it means. Plain or fancy wouldn't make much difference. The important thing is whether it's speedy and whether it's adequate. And speedy and adequate are really interrelated, aren't they?
"MR. FOX: I believe so; yes. I think they are subsumed, that speedy is subsumed under the word adequate, which seems to be more generic." Tr. of Oral Arg. 28, 34, 35.
21
In Hillsborough, the Court concluded that, because it was at best "speculative" whether the New Jersey courts followed the federal constitutional rule that a State may not "impos[e] on him against whom the discrimination has been directed the burden of seeking an upward revision of the taxes of other members of the class," 326 U.S., at 623, 66 S.Ct., at 448, see Sioux City Bridge Co. v. Dakota County, 260 U.S. 441, 445-447, 43 S.Ct. 190, 191-192, 67 L.Ed. 340 (1923), federal jurisdiction would lie. In addition, protection of federal rights was uncertain because the State Board of Tax Appeals had no right to pass on constitutional questions, the allowance of a writ of certiorari to that Board from the New Jersey Supreme Court was only discretionary, and the refusal of a writ was not judicially reviewable by the Court of Errors and Appeals. 326 U.S., at 625-626, 66 S.Ct., at 449.
22
A remedy to contest a tax that requires repetitive suits on the same issue in succeeding years may not be "efficient." However, on the record properly before us, the Illinois remedy has not shown itself not "efficient." It is true that respondent appealed unsuccessfully to the Board of Appeals for four straight years, 1974, 1975, 1976, and 1977, see n. 5, supra, but it was not until after her 1977 appeal that the Circuit Court of Cook County rendered its judgment. Therefore, neither the County Assessor nor the Board had yet had the benefit of a judicial determination to weigh in their considerations. Further resort to the Illinois statutory refund remedy would become unnecessary should subsequent assessments reflect the Circuit Court's judgment of the correct assessment.
Respondent informs us, however, that her 1978 and 1979 tax assessments were set at the 1977 discriminatory level, despite a complaint filed with the Assessor for 1978 and appeals to the Board for both years. Brief for Respondent 2. Together with her previous four appeals, respondent notes that she has been forced to take remedial action for six successive years. Id., at 31, n. 27. Because these additional facts are not part of the record before us, we have not considered them. Respondent may present these new facts in her pending suit in Federal District Court to enjoin collection of her 1978 property tax. See Id., at 2.
23
For instance, discussing the New York state courts in 1839, David Dudley Field noted that "[s]peedy justice is a thing unknown; and any justice, without delays almost ruinous, is most rare." Vanderbilt, Improving the Administration of Justice—Two Decades of Development, 26 U.Cin.L.Rev. 155, 157 (1957). Many have long since lamented the seeming inseparability of judicial proceedings and delay. See, e. g., National Center for State Courts, Justice Delayed 2 (1978); Lagging Justice, 328 Annals Am. Acad. Pol. & Soc. Sci. (1960); Vanderbilt, supra ; Warren, Delay and Congestion in the Federal Courts, 42 J. Am. Jud. Soc. 6, 7-8 (1958); Congestion and Delay: A Selected Bibliography of Recent Materials 1953-1958, in Proceedings of the Attorney General's Conference on Court Congestion and delay in Litigation 212-245 (1958).
24
For over half of the 13 courts surveyed, the median number of days was over a year and a half. National Center for State Courts, Justice Delayed 10-11 (1978). Delay has been a particularly pronounced problem for state trial courts located in metropolitan centers. See generally Virtue, The Two Faces of Janus: Delay in Metropolitan Trial Courts, in Lagging Justice, 328 Annals Am. Acad. Pol. & Soc. Sci. 125 (1960). This results in part from an observed correlation between population and calendar congestion. Institute of Judicial Administration, Calendar Status, in Proceedings of the Attorney General's Conference on Court Congestion and Delay in Litigation 196 (1958). For example, in 1958, the average time from the beginning of suit until the commencement of jury trial was 18.8 months for counties with populations over 750,000, 11.4 months for counties between 500,000 and 750,000, and 5.6 months for counties under 500,000. Ibid.
25
Current statistics are only the latest in a long history of delay and congestion in federal and state courts. Congress discussed the problem of congestion in federal district courts in connection with the Tax Injunction Act itself. 81 Cong.Rec. 1417 (1937) (remarks of Sen. Bone) (citing portions of Report on the Johnson Act deemed applicable to the Tax Injunction Act). For the year ending June 30, 1930, 37.7% of federal-question law cases terminated without a jury in 13 selected Federal District Courts took 12 months or more to complete. American Law Institute, A Study of the Business of the Federal Courts, Pt. II, p. 87 (1934). In 1942, the median time interval for civil nonjury trials from filing to disposition in all federal district courts was 12.3 months. Annual Report of the Director of the Administrative Office of the U.S. Courts, Table 9 (1942). The median time for New York's Southern District was 25 months. Ibid.
Unfortunately state-court statistics on civil litigation in the 1930's and 1940's are virtually nonexistent. The Institute of Judicial Administration conducted the first major compilation of state civil case data in 1953. See U. S. Dept. of Justice, State Court Caseload Statistics: The State of the Art 15, 22 (1978). Even the latest information on state-court time intervals is more complete for appellate than trial litigation. See National Center for State Courts, State Court Caseload Statistics: Annual Report 1976 (1980).
26
Part of the problem of delay inheres in the very nature of state tax administration. There has yet to be devised a taxing system universally viewed as speedy enough to resolve complaints. This is largely because "[t]he procedures for mass assessment and collection of state taxes and for administration and adjudication of taxpayers' disputes with tax officials are generally complex and necessarily designed to operate according to established rules." Perez v. Ledesma, 401 U.S. 82, 128, n. 17, 91 S.Ct. 674, 699, n. 17, 27 L.Ed.2d 701 (1971) (BRENNAN, J., concurring in part and dissenting in part).
The property tax is especially vulnerable to criticism over its administration. Unlike state income or sales taxes that usually can be calculated automatically from the taxpayer's income or the price of a good or service, the property tax is levied on the value of real estate. This element necessarily introduces a degree of subjective individualized judgment by the assessor that would understandably give rise to frequent taxpayer challenges and place pressure on the appellate review procedures. See generally O. Oldman & F. Schoettle, State and Local Taxes and Finance 262-265 (1974); Advisory Commission on Intergovernmental Relations, The Property Tax in a Changing Environment 3-20 (1974); H. Aaron, Who Pays the Property Tax?, 59-67 (1975); Pomp, What Is Happening to the Property Tax, 15 Assessors Journal 107, 108-116 (1980).
27
The dissent relies on four factors which it believes "combine to make the Illinois remedial scheme demonstrably unjust." Post, at 538-541. Leaving aside the issue whether the phrase "demonstrably unjust" describes the proper inquiry, these four factors boil down to the same two elements of delay and failure to pay interest addressed in this Court's opinion. The dissent's first factor—"the tax assessments themselves reveal gross inequities," post, at 539—merely states that respondent has alleged a constitutional violation, surely not a ground for federal-court jurisdiction here. The second—that overassessment continues "notwithstanding [the taxpayer's] formal protests and the manifest error in the original assessment," ibid.—would appear to require error-free administration that even the best procedures could not guarantee. Indeed, absent a judicial determination of the correct assessment, it is not surprising that respondent's "formal protests" failed to persuade the Assessor and Board of Appeals of their "manifest error." See n. 22, supra. Here, respondent's challenges to the three tax years were resolved within two years in a single court proceeding. Those challenges explicitly were not based on federal constitutional grounds, and it is hardly the duty of federal courts to intervene in state-law tax questions. N. 18, supra. As we suggest, n. 22, supra, the Federal District Court in respondent's pending 1978 litigation may evaluate her latest claim in light of the "efficient" prong of our analysis, now that the Assessor and Board of Appeals are aware of the Circuit Court of Cook County's adjudication and apparently have nevertheless repeated their prior assessment practices.
The dissent's third factor—delay—and fourth factor—failure to pay interest—are addressed above.
28
The Tax Injunction Act was only one of several statutes reflecting congressional hostility to federal injunctions issued against state officials in the aftermath of this Court's decision in Ex parte Young, 209 U.S. 123, 155-156, 28 S.Ct. 441, 452, 52 L.Ed. 714 (1908) (holding that the Eleventh Amendment does not bar federal courts from enjoining unconstitutional actions of state officers). See generally Perez v. Ledesma, supra, 401 U.S., at 106-115, 91 S.Ct., at 687-692 (BRENNAN, J., concurring in part and dissenting in part). See also S.Rep.No.1035, 75th Cong., 1st Sess., 1 (1937) ("This legislation does not introduce a new principle, since the Congress has passed statutes of similar import").
29
The Court of Appeals suggested that the purpose of the Act was to prevent out-of-state corporations, through diversity suits, from delaying payment of state taxes during the pendency of federal litigation while in-state citizens would have to pay first and then litigate in state courts. 604 F.2d, at 535. It is true that the drafters of the Act were particularly concerned with this practice of out-of-state corporations. S.Rep.No.1035, supra, at 1-2; 81 Cong.Rec. 1416 (1937) (remarks of Sen. Bone). But the expansive language of the statute belies the notion that Congress was concerned exclusively with this problem. If Congress had wanted solely to address this issue, it surely would have done so by limiting the Act's jurisdictional bar to suits brought in federal diversity jurisdiction.
In addition, the Court of Appeals' narrow interpretation of the Act's purpose might have the perverse effect of making the Act moot. In 1938, one year after its passage, this Court held that federal courts in diversity suits must apply the general case law as well as statutory law of the State. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). If federal courts followed the State's equity law, then out-of-state corporations contesting taxes would be treated no differently from in-state citizens. See Note, The Tax Injunction Act and Suits for Monetary Relief, 46 U.Chi.L.Rev. 736, 743, n. 37 (1979).
30
One source suggested that the "apparent weight of authority" supported the opposite rule—that interest was allowable even in the absence of a statute. Annot., 112 A.L.R. 1183-1184 (1938). But even that source acknowledged the existence of the contrary view, one that "ha[d] been asserted somewhat more frequently in recent cases." Id., at 1184. Accord, Annot., 57 A.L.R. 357-364 (1928).
31
See Educational Films Corp. v. Ward, 282 U.S. 379, 386, n. 2, 51 S.Ct. 170, 171, 75 L.Ed. 400 (1931); Hopkins v. Southern California Telephone Co., 275 U.S. 393, 399-400, 48 S.Ct. 180, 181-182, 72 L.Ed. 329 (1928); Proctor & Gamble Distributing Co. v. Sherman, 2 F.2d 165, 166 (SDNY 1924). These cases' treatment of a no-interest refund remedy was undercut by later cases. Without expressly addressing the issue, the Court in two cases decided the same day, Matthews v. Rodgers, 284 U.S. 521, 528, 52 S.Ct. 217, 220, 76 L.Ed. 447 (1932) (Mississippi refund remedy); Stratton v. St. Louis Southwestern R. Co., 284 U.S. 530, 534, 52 S.Ct. 222, 223, 76 L.Ed. 465 (1932) (Illinois refund remedy), found adequate two state refund remedies that apparently did not pay interest, Gulf, M. & O. R. Co. v. Webster County, 194 Miss. 660, 662, 13 So.2d 644, 645 (1943); Lakefront Realty Corp. v. Lorenz, 19 Ill.2d 415, 422-423, 167 N.E.2d 236, 240-241 (1960). Therefore, prior federal equity practice is a two-sided sword.
32
Commentators agree that this issue has never been definitively resolved. P. Bator, P. Mishkin, D. Shapiro, & H. Wechsler, Hart & Wechsler's The Federal Courts and the Federal System 979 (2d ed. 1973); Berry, A Federal Forum for Broad Constitutional Deprivation by Property Tax Assessment, 65 Calif.L.Rev. 828, 833-834 (1977). Most believe that the Act is not equivalent to prior federal equity practice, although they do not agree on the quantity and quality of difference. See, e. g., Comment, 93 Harv.L.Rev. 1016, 1021-1022 (1980) (Act reduces scope of equity); Comment, Jurisdiction to Enforce Federal Statutes Regulating State Taxation: The Eleventh Amendment-Section 1341 Imbroglio, 70 Yale L.J. 636, 643 (1961) (Act limited relief available under equity); Note, Federal Court Interference with the Assessment and Collection of State Taxes, 59 Harv.L.Rev. 780, 783-784 (1946) (Act limited equity to relief from procedural defects in state courts).
33
Of course, this is not to say that prior federal equity cases may not be instructive on whether a state remedy is "plain, speedy and efficient." And even where the Tax Injunction Act would not bar federal-court interference in state tax administration, principles of federal equity may nevertheless counsel the withholding of relief. See Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 301, 63 S.Ct. 1070, 1074, 87 L.Ed. 1407 (1943) (Act not "a mandatory withdrawal from [federal equity courts] of their traditional power to decline jurisdiction in the exercise of their discretion").
34
Senator Bone noted that the Tax Injunction Act "does not take away any equitable right of a taxpayer, or deprive him of a day in court," because a "full hearing and judicial determination of the controversy" remained assured. 81 Cong.Rec. 1416 (1937). See S.Rep.No.1035, 75th Cong., 1st Sess., 2 (1937); H.R.Rep.No.1503, 75th Cong., 1st Sess., 2 (1937). This statement was merely declaratory of the Act's general continuation of an exception to its broad jurisdictional bar against federal injunctive relief.
35
"[S]uits in equity shall not be sustained in either of the courts of the United States, in any case where plain, adequate and complete remedy may be had at law." § 16, 1 Stat. 82.
36
It is true that, if we found the Illinois remedy inadequate because of its failure to pay interest, the State or county could avoid any problems of federally enjoined tax payments by choosing to pay interest. See United States v. Livingston, 179 F.Supp. 9, 15 (EDSC 1959) (three-judge court), aff'd per curiam, 364 U.S. 281, 80 S.Ct. 1611, 4 L.Ed.2d 1719 (1960). But Congress surely did not intend that the threat of federal injunctive relief be used as a lever to force States to appropriate funds for interest payable to their taxpayers.
1
"On its face, the 'plain, speedy and efficient remedy' exception appears to require a state-court remedy that meets certain minimal procedural criteria." Ante, at 512.
"The procedural mechanism for correction of her tax bill remains the same, however, whether interest is paid or not." Ante, at 515.
"A procedural interpretation of the phrase 'a plain, speedy and efficient remedy,' and the procedural sufficiency of Illinois' remedy, are supported further by analysis of the phrase's individual words." Ante, at 516.
"This Court's interpretation of the word 'efficient' has also stressed procedural elements." Ante, at 517.
2
In Salish & Kootenai Tribes, the Court stated that through enactment of § 1341, Congress "gave explicit sanction to the preexisting federal equity practice." 425 U.S., at 470, 96 S.Ct., at 1639. In Great Lakes Dredge & Dock Co., the Court described the restraints imposed on federal equity jurisdiction prior to the passage of the Tax Injunction Act and noted that "Congress recognized and gave sanction to this practice of federal equity courts by the [Tax Injunction] Act." 319 U.S., at 298, 63 S.Ct., at 1073. In Tully v. Griffin, Inc., the Court again noted that "the statute has its roots in equity practice . . . ." 429 U.S., at 73, 97 S.Ct., at 222.
3
In Educational Films Corp. v. Ward, 282 U.S. 379, 51 S.Ct. 170, 75 L.Ed. 400 (1931), the Court indicated that the substance of the remedy was important by stating that the absence of interest on a refund rendered a state remedy inadequate. Id., at 386, n. 2, 51 S.Ct., at 171. See also Hopkins v. Southern California Telephone Co., 275 U.S. 393, 48 S.Ct. 180, 72 L.Ed. 329 (1928).
4
Although Congress omitted the word "adequate" from its description of a state remedy that would defeat federal jurisdiction, the omission may have been an oversight, or the inclusion of such a word may well have been considered unnecessary. Black's Law Dictionary 1163 (5th ed. 1979) defines "remedy" as "[t]he means by which a right is enforced or the violation of a right is prevented, redressed, or compensated." A court cannot insure that the federal rights are "enforced," or the violation of such rights "prevented, redressed, or compensated" without a consideration of the substance of the state remedy. Moreover, the word "efficient," which was defined as "characterized by effective activity," may have been intended to require an effective remedy. See Webster's New International Dictionary of the English Language 819 (2d ed. 1934).
5
The 1937 Senate Report, at 1-2 stated:
"If those to whom the Federal courts are open may secure injunctive relief against the collection of taxes, the highly unfair picture is presented of the citizen of the State being required to pay first and then litigate, while those privileged to sue in the Federal courts need only pay what they choose and withhold the balance during the period of litigation.
"The existing practice of the Federal courts in entertaining tax-injunction suits against State officers makes it possible for foreign corporations doing business in such States to withhold from them and their governmental subdivisions, taxes in such vast amounts and for such long periods of time as to seriously disrupt State and county finances. The pressing needs of these States for this tax money is so great that in many instances they have been compelled to compromise these suits, as a result of which substantial portions of the tax have been lost to the States without a judicial examination into the real merits of the controversy."
The Johnson Act, 28 U.S.C. § 1342, upon which the Tax Injunction Act was modeled, and its legislative history, reflect the same concern. The Johnson Act specifically deprived district courts of jurisdiction to enjoin the operation of, or compliance with, public utility rates when the jurisdiction of the federal court was based solely on diversity. Ibid. ; see S.Rep.No.701, 72d Cong., 1st Sess., 7-13 (1932).
6
See P. Bator, P. Mishkin, D. Shapiro, H. Wechsler, Hart & Wechsler's The Federal Courts and the Federal System 978 (2d ed. 1973) (hereinafter Bator, Mishkin, Shapiro, & Wechsler); C. Wright, Federal Courts 215-217 (3d ed. 1976) (hereinafter Wright).
7
Under prior federal equity practice, a state equitable remedy would not defeat the equity jurisdiction of the federal courts. Bohler v. Callaway, 267 U.S. 479, 486-488, 45 S.Ct. 431, 434-435, 69 L.Ed. 745 (1925) (state equitable remedy to enjoin collection of excessive assessment would not defeat federal equity jurisdiction). See Stratton v. St. Louis Southwestern R. Co., 284 U.S. 530, 533-534, 52 S.Ct. 222, 223, 76 L.Ed. 465 (1932). Such an equitable remedy, however, would bar federal jurisdiction under the Act. See Garrett v. Bamford, 538 F.2d 63, 68 (CA3), cert. denied, 429 U.S. 977, 97 S.Ct. 485, 50 L.Ed.2d 585 (1976); Horn v. O'Cheskey, 378 F.Supp. 1280 (DCNM 1974). As originally enacted, the statute deprived the district courts of jurisdiction whenever a "plain, speedy, and efficient remedy may be had at law or in equity in the courts of such State." 50 Stat. 738 (emphasis added). The phrase "at law or in equity" was dropped as "unnecessary" in the 1948 revision of the statute. H.R.Rep.No.308, 80th Cong., 1st Sess., A120 (1947). See 17 C. Wright, A. Miller, & E. Cooper, Federal Practice & Procedure § 4237, p. 420 (1978) (hereinafter Wright, Miller, & Cooper).
8
The Court is correct when it asserts that the Act was not intended to permit the federal courts to entertain suits in all cases cognizable by them prior to the Act. Given the restrictions on equity jurisdiction clearly intended by Congress, the Act was not redundant of § 16 of the Judiciary Act of 1789, 1 Stat. 82. Thus the fact that the broader jurisdiction permitted by the Suits in Equity Act existed for 10 years after the passage of the Tax Injunction Act, see ante, at 526-527, does not indicate that Congress did not intend the prior equity standard to apply to a determination of the adequacy of state remedies under the Tax Injunction Act.
9
The Court correctly notes that the Cromwell Court held that because it was unclear whether the New Jersey courts would follow the constitutional rule, established by this Court in Sioux City Bridge Co. v. Dakota County, 260 U.S. 441, 445-447, 43 S.Ct. 190, 191-192, 67 L.Ed. 340 (1923), that a State may not require the party suffering discrimination to seek an upward revision of the taxes of other members of the class, there was such "uncertainty surrounding the adequacy of the state remedy as to justify the District Court in retaining jurisdiction of the cause." 326 U.S., at 626, 66 S.Ct., at 449. Although the Court reasons that this "uncertainty" demonstrates that the remedy was not procedurally "plain," ante, at 516-517, the Court fails to note that the Cromwell Court clearly indicated that even if the remedy were a certain one, it would be insufficient to defeat federal jurisdiction. After noting that "a long line" of New Jersey decisions "held that a taxpayer who has been singled out for discriminatory taxation may not obtain equalization by reduction of his own assessment," and that "[h]is remedy is restricted to proceedings against other members of his class for the purpose of having their taxes increased," the Court stated that "[o]n the basis of that rule it is plain that the state remedy is not adequate to protect respondent's rights under the federal Constitution." 326 U.S., at 624, 66 S.Ct., at 448. Thus the Court was clearly concerned about the substance of the state remedy.
10
The Court interprets this language to convey a procedural requirement. The "right to challenge the amount of the tax due," however, arguably would not be satisfied by a remedy that did not provide complete protection to the federal right. Moreover, in Tully the state remedy, a declaratory judgment challenging the imposition of the tax accompanied by a preliminary injunction tolling the time period within which the taxpayer could challenge the amount of the assessment, if such a remedy existed, was clearly substantively adequate.
11
Our decisions construing the Tax Injunction Act noted that the Act was a recognition of the prior equity practice. Tully v. Griffin, Inc., 429 U.S. 68, 73, 97 S.Ct. 219, 222, 50 L.Ed.2d 227 (1976); Moe v. Salish & Kootenai Tribes, 425 U.S. 463, 470, 96 S.Ct. 1634, 1639, 48 L.Ed.2d 96 (1976); Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 298, 63 S.Ct. 1070, 1073, 87 L.Ed. 1407 (1943). Although the Court states that commentators agree that the issue of whether the Tax Injunction Act was a confirmation of prior equity practice has never been "definitively resolved," ante, at 525, n. 32, most commentators do agree that this Court has used the equitable and statutory standards interchangeably. See Bator, Mishkin, Shapiro, & Wechsler 979 ("the three major Supreme Court opinions seem to use the terms interchangeably"); Wright 216-217 ("Although it can be argued that the remedy need not be 'adequate' in the traditional equity sense in order to defeat federal jurisdiction, the Supreme Court has regarded 'plain, speedy and efficient' as meaning the same thing as 'adequate' " (footnote omitted)); Wright, Miller, & Cooper § 4237, pp. 420-421 ("plain, speedy and efficient" remedy "has been equated with 'adequate' in describing the remedy"); Berry, A Federal Forum for Broad Constitutional Deprivation by Property Tax Assessment, 65 Calif.L.Rev. 828, 833-834 (1977) (Supreme Court decisions "implied a continuing concern over the fairness of state proceedings and the narrowness of state equitable relief. Since 1937, substitution of the efficiency language for adequacy language 'has generally been ignored' "); Note, Federal Court Interference with the Assessment and Collection of State Taxes, 59 Harv.L.Rev. 780, 784-785 (1946) (arguing that "Congress intended to permit jurisdiction only where there were procedural limitations in the state remedy and not where substantive defects of law were alleged," but noting that "[t]here has been a definite failure to distinguish between inadequacy of remedy created by uncertainty as to the substantive outcome of any suit, and the fact that the taxpayer has available a complete judicial means of litigating the controversy in the state courts . . .").
12
For example, the Court notes that the "procedural mechanism" for the recovery of respondent's tax bill would be the same whether interest is paid or not. Ante, at 515. The procedural mechanism would also be the same if the state statute prohibited any refund in excess of 10% of the amount claimed.
13
The purpose of insuring that a state remedy meets minimal procedural standards is to prevent States from erecting procedural barriers that would make the taxpayer's recovery of a refund so difficult as to be worthless. See, e. g., Georgia Railroad & Banking Co. v. Redwine, 342 U.S. 299, 303, 72 S.Ct. 321, 323, 96 L.Ed. 335 (1952) (remedy requiring taxpayer to bring over 300 suits in 14 counties inadequate). If the state remedy is substantively inadequate, however, the purpose underlying the requirement of a procedurally adequate remedy disappears.
14
In Redwine, the plaintiff railroad sought to enjoin collection of ad valorem taxes assessed by the State and every county, school district, and municipality through which the railroad's lines ran. The State argued that a suit for refund after payment of taxes, a remedy available only with respect to taxes payable to the State, would be a "plain, speedy and efficient" remedy under the statute. Noting that such a refund would apply to less than 15% of the total taxes in controversy, the Court held that the remedy would not defeat federal jurisdiction and stated that "[a]n adequate remedy as to only a portion of the taxes in controversy does not deprive the federal court of jurisdiction over the entire controversy." Id., at 303, and n. 11, 72 S.Ct., at 323.
15
Lower federal courts have recognized that the statute codified the prior adequacy standard. See Garrett v. Bamford, 538 F.2d, at 67 ("the decisions indicate that 'plain, speedy and efficient' means no more than the prior equity standard of 'adequacy' "); Dillon v. Montana, 634 F.2d 463, 466-467 (CA9 1980) (recognizing that Congress gave explicit sanction to pre-existing equity practice and stating that "[t]he remedial certainty contemplated by § 1341 is that a state forum be empowered to consider claims that a tax is unlawful and to issue adequate relief"); United Gas Pipe Line Co. v. Whitman, 595 F.2d 323, 325 (CA5 1979) ("Since the 1937 statute was intended as a codification of judicial practice prior to its passage, both the Supreme Court and this court have found it useful to draw on the background of pre-1937 decisions in interpreting the purposes and policies which underlie it"); Charles R. Shepherd, Inc. v. Monaghan, 256 F.2d 882, 884 (CA5 1958) (federal court has no jurisdiction under the Tax Injunction Act if "an adequate remedy is provided for the recovery back if improperly collected"); see also Louisville & Nashville R. Co. v. Public Service Comm'n, 631 F.2d 426 (CA6 1980) (state remedy limited to seeking upward revision of other taxpayers' assessments did not bar federal-court jurisdiction under § 1341), cert. denied, 450 U.S. 959, 101 S.Ct. 1418, 67 L.Ed.2d 384; Alnoa G. Corp. v. City of Houston, 563 F.2d 769, 772 (CA5 1977) (if potential opportunities for abuse in the form of arbitrary city council decisions reassessing taxpayer's property became reality, "the adequacy of the state remedy might then be seriously questioned") cert. denied, 435 U.S. 970, 98 S.Ct. 1610, 56 L.Ed.2d 62 (1978); Helmsley v. City of Detroit, 320 F.2d 476, 481 (CA6 1963) (remedy was "adequate and complete"); Bland v. McHann, 463 F.2d 21, 26-27 (CA5 1972), cert. denied, 410 U.S. 966, 93 S.Ct. 1438, 35 L.Ed.2d 700 (1973). Cf. Clement, Discrimination in Real Property Assessment: A Litigation Strategy for Pennsylvania, 36 U.Pitt.L.Rev. 285, 289 (1974).
16
According to a study conducted by the Illinois Department of Public Affairs and cited in respondent's complaint, these assessments ranged from 3% of actual value to 973% of actual value. See ante, at 507; App. 7. The Court assumes, ante, at 528, that the amount of respondent's refund claim is typical, and the Court notes that such disputed assessments may provide the county with an additional $113 million each year. But federal-court litigation could encumber this entire amount only if it is assumed that all refund claimants could make a showing of inequitable assessment sufficient to obtain a federal-court injunction. This assumption highlights an ironic contrast between the Court's indifference to the financial impact of the gross overassessments on the individual taxpayer, who has no lawful method of preventing such overassessments, and the Court's concern with a temporary delay in the collection of county revenues that the State could easily avoid by providing an adequate remedy.
17
In order to conclude that respondent is powerless to prevent repetition of erroneous assessments, it is not necessary to consider respondent's assertion, not made part of the record, that the 1978 and 1979 assessments indicate that the discrimination against her has continued. Brief for Respondent 2. The four consecutive overassessments, from 1974 through 1977, sufficiently demonstrate the repetitive nature of the injury to respondent. See App. 8.
18
In Garrett v. Bamford, supra, at 71-72, the court held that because adjustment of the taxpayer's taxes in one year would not prevent repetition of disparate assessments in succeeding years, and because the discriminatory assessment pattern was allegedly systematic and intentional, the lack of potential in futuro relief was a factor contributing to the inadequacy of the state remedy.
19
The Court reasons that the fact that respondent had to bring repetitive suits to challenge the repeated overassessments is at least in part attributable to the fact that the Board of Appeals, in considering respondent's appeals from the overassessments, did not have the benefit of the Circuit Court judgment, rendered in 1977, holding that the assessor had overassessed respondent's property and awarding her a refund. Ante, at 518, n. 22. That fact, however, merely underscores the cumulative effect of the delay and the taxpayer's inability to avoid repeated mistakes. The delay of the judicial determination, in addition to postponing vindication of the taxpayer's rights, fosters repetition of the error.
20
The Court notes that the Court in two pre-Act cases. Matthews v. Rodgers,, 284 U.S. 521, 525, 52 S.Ct. 217, 219, 76 L.Ed. 447 (1932), and Stratton v. St. Louis Southwestern R. Co., 284 U.S. 530, 52 S.Ct. 222, 76 L.Ed.2d 465 (1932), without expressly reaching the issue, upheld the adequacy of state remedies that "apparently" did not include interest. Ante, at 524, n. 31. In light of the fact, however, that none of the parties argued that the failure to pay interest rendered the remedy inadequate, and the fact that the Court did not address the failure to pay interest in either case, such cases are scant authority for the proposition that the prior federal equity cases are a "two-edged sword." See Brief for Appellants, Brief for Appellants on Reargument, Brief for Appellees, and Supplemental Brief for Appellees on Reargument in Matthews v. Rodgers, O.T. 1931, No. 84; Supplemental Brief for Appellant, Additional Brief for Appellees, Memoranda of Authority on Equity Jurisdiction for Appellees, and Pet. for Rehearing in Stratton v. St. Louis Southwestern R. Co., O.T. 1931, No. 178.
21
In Livingston, the three-judge court stated:
"It is well-settled that a right to recover taxes illegally collected is not an adequate remedy if it does not include the right to recover interest at a reasonable rate for the period during which the taxpayer's money is withheld. Even if existence of the right be merely cast in substantial doubt, the remedy is not plain or adequate.
* * * * *
"South Carolina may allow interest upon refunds of taxes or not as she chooses. If she does not make clear the existence of the right to recover such interest, however, she necessarily opens the door to equitable relief to taxpayers and forecloses a remission of the parties to the legal remedy provided by her statutes." 179 F.Supp., at 15. (Footnote omitted.)
In United States v. Department of Revenue, the court held that a state requirement that a bond be posted which did not provide for recoupment of the cost of the bond was analogous to the failure to award interest on refunds and therefore was not an adequate state remedy. See also Wright, Miller, & Cooper § 4237, p. 423.
22
In some cases, failure to pay interest would certainly not be enough to render a remedy inadequate. If the amount of the interest were small, either because the amount of the refund was small or the time necessary to obtain the refund was short, then the failure to pay interest would not be a substantial defect in the remedy. See Group Assisting Sewer Proposal-Ansonia v. City of Ansonia, 448 F.Supp. 45, 47 (Conn.1978); Abernathy v. Carpenter, 208 F.Supp. 793, 796-797 (WD Mo.1962), aff'd per curiam, 373 U.S. 241, 83 S.Ct. 1295, 10 L.Ed.2d 409 (1963). See also Comment, 93 Harv.L.Rev. 1016, 1023-1024 (1980).
23
In Procter & Gamble Distributing Co. v. Sherman, 2 F.2d 165 (S.D.N.Y.1924), Judge Learned Hand held that the uncertainty of the availability of a refund rendered a remedy inadequate. He further noted:
"But quite independently of such doubts, the relief is inadequate because of the express refusal to allow interest. . . . While I have been referred to no decision on the point, it seems to me plain that it is not an adequate remedy, after taking away a man's money as a condition of allowing him to contest his tax, merely to hand it back, when, no matter how long after, he establishes that he ought never to have been required to pay at all. Whatever may have been our archaic notions about interest, in modern financial communities a dollar to-day is worth more than a dollar next year, and to ignore the interval as immaterial is to contradict well-settled beliefs about value. The present use of my money is itself a thing of value, and, if I get no compensation for its loss, my remedy does not altogether right my wrong." Id., at 166.
24
"The payment of interest might make the wait more tolerable, but it would not affect the amount of time necessary to adjudicate respondent's federal claims." Ante, at 520-521.
25
Because I would rely on the cumulative effect of the four factors discussed, and not on the failure to pay interest alone, to hold that the state remedy is inadequate, there is no need to respond to the Court's point, ante, at 523, that Congress must have been aware that many States did not pay interest on tax refunds. Congress may have been aware that some States did not pay interest on refunds and may have even sanctioned the practice, but there is no reason to believe that Congress implicitly approved the inadequate remedy provided by Cook County in this case.
| 89
|
450 U.S. 754
101 S.Ct. 1451
67 L.Ed.2d 662
UNIVERSITIES RESEARCH ASSOCIATION, INC., Petitioner,v.Stanley E. COUTU.
No. 78-1945.
Argued Nov. 10, 1980.
Decided April 6, 1981.
Syllabus
Section 1(a) of the Davis-Bacon Act provides that advertised specifications for federal construction contracts in excess of $2,000 "shall contain" a provision stating the minimum wages to be paid laborers and mechanics, which wages must be based on those the Secretary of Labor determines to be prevailing in the locality, and further provides that every contract based on such specifications "shall contain" a stipulation that the contractor will pay wages not less than those stated in the specifications. Petitioner made a contract with the Atomic Energy Commission to provide scientific and management services to the United States in connection with the construction, alteration, and repair of the Fermi National Accelerator Laboratory, a high-energy physics research facility. The contract was administratively determined not to call for work subject to the Act, and therefore did not contain a prevailing wage stipulation. Respondent, a former employee of petitioner, brought suit against petitioner on behalf of himself and others similarly situated, seeking damages on the theory that petitioner had violated the Davis-Bacon Act by failing to pay prevailing wages for the construction work. The District Court entered summary judgment for petitioner on the ground that since it appeared from the record that there were no express Davis-Bacon Act stipulations in the contract, it would be improper for the court to declare in the first instance that the contract was subject to the Act and to make appropriate wage determinations for the parties. The Court of Appeals reversed, holding that if petitioner actually performed Davis-Bacon Act work with its own employees, respondent and his class became entitled to the prevailing wages, and the court remanded the case to allow respondent the opportunity to demonstrate, if he could, that petitioner had used him and his class to perform Davis-Bacon Act work.
Held : The Davis-Bacon Act does not confer upon an employee a private right of action for back wages under a contract that has been administratively determined not to call for work subject to the Act and thus does not contain prevailing wage stipulations. 767-784.
(a) While requiring that certain stipulations be placed in federal construction contracts for the benefit of mechanics and laborers, § 1 of the Act does not confer rights directly on these individuals but is simply "phrased as a directive to federal agencies engaged in the disbursement of public funds." Cannon v. University of Chicago, 441 U.S. 677, 693, n. 14, 99 S.Ct. 1946, 1955, n. 14, 60 L.Ed.2d 560. That Congress did not intend to authorize a suit for back wages where there are no prevailing wage stipulations in the contract is also indicated by the absence of a provision comparable to § 3 of the Davis-Bacon Act, which confers on laborers and mechanics working under a contract containing such stipulations a conditional right of action against the contractor on the payment bond required by the Miller Act. Pp. 771-773.
(b) The Davis-Bacon Act's legislative history further supports the conclusion that implication of a private right of action under the circumstances of this case would be inconsistent with congressional intent. No contrary inference can be drawn from the Portal-to-Portal Act of 1947. Pp. 773-781.
(c) Finally, the underlying purpose of the Davis-Bacon Act's legislative scheme indicates that Congress did not intend to create the right of action asserted by respondent. To imply a private right of action to sue for Davis-Bacon Act wages under a contract that does not contain prevailing wage stipulations would destroy the careful balance the Act strikes between the interests of contractors and their employees. In addition, the implication of a private right of action where there has been no Davis-Bacon Act determination would introduce substantial uncertainty into Government contracting, and would undercut the elaborate administrative scheme promulgated to assure consistency in the administration and enforcement of the Act. Pp. 782-784.
595 F.2d 396, reversed and remanded.
Robert E. Mann, Chicago, Ill., for petitioner.
Harriet S. Shapiro, Washington, D.C., for United States, as amicus curiae, by special leave of Court.
Robert Jay Nye, Chicago, Ill., for respondent.
Justice BLACKMUN delivered the opinion of the Court.
1
The Davis-Bacon Act requires that certain federal construction contracts contain a stipulation that laborers and mechanics will be paid not less than prevailing wages, as determined by the Secretary of Labor. The question presented in this case is whether the Act confers upon an employee a private right of action for back wages under a contract that has been administratively determined not to call for Davis-Bacon work, and that therefore does not contain a prevailing wage stipulation.
2
* Section 1(a) of the Davis-Bacon Act of March 3, 1931 (Act), ch. 411, § 1, 46 Stat. 1494, as amended, 40 U.S.C. § 276a(a),1 provides that the advertised specifications for every federal contract in excess of $2,000 "for construction, alteration, and/or repair . . . of public buildings or public works of the United States . . . shall contain a provision stating the minimum wages to be paid various classes of laborers and mechanics which shall be based upon the wages that will be determined by the Secretary of Labor to be prevailing" for corresponding classes of laborers and mechanics employed on similar projects in the locality. Every contract based upon these specifications must contain a stipulation that the contractor shall pay wages not less than those stated in the specifications.2
3
A contract entered into pursuant to the Act must also provide that if the contractor fails to pay the minimum wages specified in the contract, the Government contracting officer may withhold so much of the accrued payments as may be considered necessary to pay the laborers and mechanics the difference between the contract wages and those actually paid. Section 3 of the Act, as added Aug. 30, 1935, 49 Stat.
4
1012, 40 U.S.C. § 276a-2,3 authorizes the Comptroller General to pay these accrued payments directly to the laborers and mechanics.
5
Should the withheld funds prove insufficient to reimburse the employees, § 3 confers on them "the right of action and/or of intervention against the contractor and his sureties conferred by law upon persons furnishing labor or materials." Laborers and mechanics working under a contract that contains Davis-Bacon Act stipulations thus may themselves bring suit against the contractor on the payment bond that the Miller Act of August 24, 1935, 49 Stat. 793, as amended, 40 U.S.C. § 270a et seq. (1976 ed. and Supp. III), requires for the protection of persons supplying labor or materials under certain federal construction contracts.4 In addition, if the contractor fails to pay at least the stipulated minimum wages, the contract may be terminated and the contractor debarred from all Government contracts for a period of three years.5
6
Pursuant to Reorganization Plan No. 14 of 1950, 5 U.S.C.App., p. 746, the Secretary of Labor (Secretary) has issued regulations designed to "assure coordination of administration and consistency of enforcement" of the Act and some 60 related statutes.6 See 29 CFR Parts 1, 3, 5, 7 (1980).7 In their turn, various contracting agencies have issued detailed regulations concerning the applicability of the Act to the contracts they let. See, e. g., 41 CFR Subpart 9-18.7 (1979) (Department of Energy). The contracting agency has the initial responsibility for determining whether a particular contract is subject to the Davis-Bacon Act. See A. Thieblot, The Davis-Bacon Act 31 (Labor Relations and Public Policy Series Report No. 10, Univ. of Pa., 1975) (hereinafter Thieblot). If the agency determines that the contract is subject to the Act, it must determine the appropriate prevailing wage rate,8 and ensure that the rate chosen is inserted in the requests for bids on the project, as well as in any resulting contract. See 29 CFR § 5.5 (1980); Thieblot, at 31-34.
7
The contracting agency's coverage and classification determinations are subject to administrative review. Prior to the award of a contract, a contractor, labor organization, or employee may appeal a final agency determination that a project is not covered by the Act to the Department of Labor. 29 CFR §§ 5.12 and 7.9 (1980).9 Disputes over the proper classification of workers under a contract containing Davis-Bacon provisions must be referred to the Secretary for determination. 41 CFR § 1-18.703-1(i) (1979); 29 CFR § 5.12 (1980). See North Georgia Bldg. & C. T. C. v. U. S. Dept. of Transp., 399 F.Supp. 58 (ND Ga. 1975). In turn, any "interested person" may appeal the Secretary's wage rate determination to the Wage Appeals Board of the Department of Labor, provided review is sought prior to the award of the contract at issue. 29 CFR § 1.16 (1980); 29 CFR Part 7 (1980). See Thieblot, at 40-43.10
II
8
Petitioner Universities Research Association, Inc., is a not-for-profit consortium of North American universities. In 1967, petitioner made a contract with the Atomic Energy Commission (AEC) to provide scientific and management services to the United States in connection with the construction, alteration, and repair of the Fermi National Accelerator Laboratory, a high-energy physics research facility located in Kane and Du Page Counties, Ill. Effective April 1972, this contract was modified to provide that petitioner also would furnish personnel to administer and operate the Fermi Laboratory. The contract was later assumed in turn by the AEC's successors, the Energy Research and Development Agency (ERDA) and the Department of Energy (DOE).11
9
At all relevant times the funding for the Fermi Laboratory was supplied entirely by the United States through the AEC. The contract, which tracked AEC procurement regulations,12 specified the rates of compensation to be paid certain classifications of employees; in addition, petitioner was required to obtain approval from the AEC prior to adopting new classifications of employees or making any changes in employee compensation.
10
Article XXXIII of the contract expressly stated that it was not contemplated that petitioner would use its own employees to perform work that the AEC determined to be subject to the Act; such work, if any, was to be procured by subcontracts approved by the AEC and containing DavisBacon stipulations.13 In a letter dated January 23, 1968, from the AEC to petitioner, the AEC stated that Art. XXXIII was included in the contract with the understanding that the contract would be modified to incorporate Davis-Bacon stipulations "[i]f presently unforeseen conditions" arose making it necessary that Davis-Bacon work be performed by petitioner with its own employees.14 Another letter, dated April 6, 1972, with identical provisions was sent to petitioner by the AEC following the modification of the contract in 1972. App. 63. In order to implement Art. XXXIII, a committee of AEC officials was designated to review specific work projects and to make Davis-Bacon Act coverage determinations as was necessary.15
11
In April 1975, respondent Stanley E. Coutu, a former employee of petitioner, brought suit in the United States District Court for the Northern District of Illinois on behalf of himself and other mechanics and laborers similarly situated, seeking more than $5 million in damages on the theory that petitioner had violated the Davis-Bacon Act by failing to pay prevailing wages for construction work performed by its employees under the contract with the AEC. Respondent had been employed by petitioner as an electronics technician from September 25, 1972, until September 10, 1975. During that time, he was compensated in accordance with the wage schedules for the "technician" classification set forth in the contract. Respondent's duties involved monitoring computers, providing assistance to scientific personnel, supervising accelerator operation, and recordkeeping. He also would make minor repairs to malfunctioning equipment, assemble prefabricated items, and assist in connecting power sources to experimental equipment. Respondent's supervisors typically were high-rated technicians, engineers, and physicists.
12
Respondent's complaint was in seven counts. The first alleged that petitioner had failed to pay "the minimum wages required to be paid pursuant to the said contract and the prevailing wage determinations of the Secretary of Labor and the Davis-Bacon Act." App. 4. The second alleged that the contract was within the purview of the Davis-Bacon Act and that the contract by its terms provided for payment "at the legal wage rate applicable to the work actually performed." Id., at 6-7. The remaining counts rested on common-law bases, for which pendent federal jurisdiction was asserted.
13
On October 8, 1975, the District Court dismissed respondent's first cause of action on the ground that it was not "totally borne out" by the contract. Id., at 22. The court, however, denied petitioner's motion to dismiss the second count and the pendent claims. It relied on the Seventh Circuit's first decision in McDaniel v. University of Chicago, 512 F.2d 583 (McDaniel I), vacated and remanded, 423 U.S. 810, 96 S.Ct. 20, 46 L.Ed.2d 30 (1975), judgment re-entered on remand, 548 F.2d 689 (1977) (McDaniel II ), cert. denied, 434 U.S. 1033, 98 S.Ct. 765, 54 L.Ed.2d 780 (1978). McDaniel I held that the Davis-Bacon Act conferred an implied private right of action upon an employee seeking to enforce a contractor's commitment to pay prevailing wages.16 The District Court reasoned that the AEC letter of April 6, 1972, interpreting Art. XXXIII of the contract, left open the possibility that petitioner's employees had performed work covered by the Act pursuant to proper determinations by the AEC. The court accordingly gave respondent "leave to show that the Secretary of Labor through [AEC] has made Davis-Bacon Act determinations with respect to the alleged contract, and that [respondent] and the class have performed such work at [petitioner's] direction, pursuant to the contract." App. 25.
14
After discovery, petitioner moved for summary judgment. In support of its motion, petitioner submitted an affidavit of the chief legal counsel for the Fermi Laboratory, which stated that "[n]o Davis-Bacon Act . . . stipulations requiring the payment of prevailing wages have ever been made a part of or incorporated in [the] Contract." Id., at 31-32. The District Court noted that respondent "as much concedes that the contract fails to include Davis-Bacon specifications," and it found that "[o]n the present state of the record it is clear that no Davis-Bacon Act determinations have been made a part of this contract." Id., at 32-33. After reviewing the statutory and regulatory framework of the Act, the court concluded that "it would be improper for this court to declare in the first instance that this contract is now subject to the Davis-Bacon Act and to make appropriate wage determinations for the parties." Id., at 34. The court therefore dismissed, the second count and, "in the exercise of its discretion," ibid., declined to assume jurisdiction over the pendent state-law claims.
15
The United States Court of Appeals for the Seventh Circuit reversed and remanded the case. 595 F.2d 396 (1979). That court recognized that the affidavit submitted by petitioner tended to disprove that there were express Davis-Bacon Act stipulations in the contract; it determined, however, that summary judgment on the second count was not appropriate, since "there may have been other evidence that the contract was one for Davis-Bacon Act work, in which case the required stipulations arguably become a part of the contract by operation of law." Id., at 398. Reasoning from its prior opinions in McDaniel I and II, the court concluded that "if the [petitioner] actually performed [Davis-Bacon Act] work with its own employees at the Fermi Laboratory, [respondent and his class] became entitled to the prevailing wages in Kane County where the work was to be performed." 595 F.2d, at 399. After rejecting petitioner's alternative argument that exhaustion of administrative remedies was required, the court remanded the case to allow respondent the opportunity on remand to demonstrate, if he could, that petitioner had used respondent and his class to perform Davis-Bacon construction work at the Fermi Laboratory. Id., at 402.
16
Because of the importance of the implied-right-of-action issue, we granted certiorari. 445 U.S. 925, 100 S.Ct. 1310, 63 L.Ed.2d 757 (1980).
III
17
Before us, petitioner makes two major arguments. It contends first that the federal courts do not have jurisdiction to make coverage, classification, or wage determinations under the Davis-Bacon Act. Alternatively, petitioner contends that Congress did not intend that the Davis-Bacon Act be enforced through private actions. Because we conclude that the Act does not confer a private right of action for back wages under a contract that administratively has been determined not to call for Davis-Bacon work,17 we find it unnecessary to reach the broader question whether federal courts have any jurisdiction to review agency coverage and classification determinations.18 Similarly, we do not decide whether the Act creates an implied private right of action to enforce a contract that contains specific Davis-Bacon Act stipulations.19
18
Relying on McDaniel,20 respondent argues that it must be assumed that no statutory relief is available to him, and that therefore the impli cation of a private right of action is necessary to effectuate the purpose of Congress in passing the Act. But as the Court's recent opinions have made clear, the question whether a statute creates a private right of action is ultimately 'one of congressional intent, not one of whether this Court t hinks that it can improve upon the statutory scheme that Congress enacted i nto law.' See Touche Ross, 442 U.S., at 575-576, 99 S.Ct., at 2488-89. W e conclude that each of these factors points to the conclusion that Congres § did not intend to create a private right of action in favor of an employe e under a contract that does not contain prevailing wage stipulations.21]
19
* We turn first to the language of the Act itself. See Transamerica, 444 U.S., at 16, 100 S.Ct., at 245; Touche Ross, 442 U.S., at 568, 99 S.Ct., at 2485. Section 1 of the Act states that the advertised specifications for every federal construction contract in excess of the specified amount "shall contain" a provision stating the minimum wages to be paid laborers and contractors, which wages shall be based on those the Secretary determines to be prevailing in the locality. Section 1 further provides that "every contract based upon these specifications shall contain a stipulation" that the contractor shall pay wages "not less than those stated in the advertised specifications."
20
The Court's previous opinions have recognized that "[o]n its face, the Act is a minimum wage law designed for the benefit of construction workers." United States v. Binghamton Constr. Co., 347 U.S. 171, 178, 74 S.Ct. 438, 442, 98 L.Ed. 594 (1954); Walsh v. Schlect, 429 U.S. 401, 411, 97 S.Ct. 679, 686, 50 L.Ed.2d 641 (1977). But the fact that an enactment is designed to benefit a particular class does not end the inquiry; instead, it must also be asked whether the language of the statute indicates that Congress intended that it be enforced through private litigation. See Transamerica, 444 U.S., at 17-18, 100 S.Ct., at 245-4622. The Court consistently has found that Congress intended to create a cause of action "where the language of the statute explicitly confer[s] a right directly on a class of persons that include[s] the plaintiff in the case." Cannon v. University of Chicago, 441 U.S. 677, 690, n. 13, 99 S.Ct. 1946, 1954, n.13, 60 L.Ed.2d 560 (1979). Conversely, it has noted that there "would be far less reason to infer a private remedy in favor of individual persons" where Congress, rather than drafting the legislation "with an unmistakable focus on the benefited class," instead has framed the statute simply as a general prohibition or a command to a federal agency. Id., at 690-692, 99 S.Ct., at 1954-55. Section 1 of the Davis-Bacon Act requires that certain stipulations be placed in federal construction contracts for the benefit of mechanics and laborers, but it does not confer rights directly on those individuals. Since § 1 is simply "phrased as a directive to federal agencies engaged in the disbursement of public funds," 441 U.S., at 693, n. 14, 99 S.Ct., at 1955,23 n. 14, its language provides no support for the implication of a private remedy.
21
Moreover, § 3 of the Act demonstrates that in this context, as in others, "when Congress wished to provide a private damages remedy, it knew how to do so and did so expressly." Touche Ross, 442 U.S., at 572, 99 S.Ct., at 2487. Under § 1 of the Act, the contracting agency is entitled to withhold "so much of accrued payments" as may be considered necessary to pay to laborers and mechanics the difference between "the rates of wages required by the contract" and the rates actually paid. If the wages so withheld are insufficient to reimburse the laborers and mechanics, then § 3 confers on them the same "right of action and/or intervention" conferred by the Miller Act on laborers and materialmen. The absence of a comparable provision authorizing a suit for back wages where there are no prevailing wage stipulations in the contract buttresses our conclusion that Congress did not intend to create such a remedy.24
B
22
The legislative history of the Davis-Bacon Act provides further support for the result we reach. The Act was "designed to protect local wage standards by preventing contractors from basing their bids on wages lower than those prevailing in the area." House Committee on Education and Labor, Legislative History of the Davis-Bacon Act, 87th Cong., 2d Sess., 1 (Comm. Print 1962) (Legislative History). Passage of the Act was spurred by the economic conditions of the early 1930's, which gave rise to an oversupply of labor and increased the importance of federal building programs, since private construction was limited. See Thieblot, at 7; Elisburg, Wage Protection Under the Davis-Bacon Act, 28 Lab.L.J. 323, 324 (1977); S.Rep.No.1445, 71st Cong., 3d Sess., 1 (1931). In the words of Representative Bacon, the Act was intended to combat the practice of "certain itinerant, irresponsible contractors, with itinerant, cheap, bootleg labor, [who] have been going around throughout the country 'picking' off a contact here and a contract there." The purpose of the bill was "simply to give local labor and the local contractor a fair opportunity to participate in this building program." 74 Cong.Rec. 6510 (1931).25
23
As originally enacted in 1931, ch. 411, 46 Stat. 1494, the Act required that every federal contract in excess of $5,000 in amount for "construction, alteration, and/or repair of any public buildings" contain a provision stating that the rate of wages paid laborers and mechanics would not be less than the prevailing rate for similar work in the locality; the Act further required that every contract contain a provision stating that disputes as to what the prevailing wage was on any given project were to be conclusively determined by the Secretary if the contracting officer was unable to resolve the controversy. The original Act thus did not provide for predetermination of prevailing wages by the Secretary; it also did not establish any enforcement mechanism.26
24
Congress soon concluded, however, that the Act as originally drafted was inadequate. Discontent focused on the lack of effective enforcement provisions and the "postdetermination" of the prevailing wage. Legislative History 2. Contractors called for predetermination of prevailing wages, claiming that they had been put to unexpected expense by postcontract determinations that the prevailing wage was higher than the rate upon which they had based their bids. Ibid.; Hearings on H.R. 12 et al. before the House Committee on Labor, 72d Cong., 1st Sess., 8, 12, 14, 50-51, 54-55, 58, 65 (1932). While the labor movement was divided on this issue, most of the national leadership opposed predetermination. Legislative History 2. See 75 Cong.Rec. 12379 (1932) (remarks of Rep. Ramspeck); Hearings on H.R. 12, at 24, 114, 116, 122-123. Labor was united, however, in calling for the establishment of an enforcement mechanism. Legislative History 2. See Hearings on H.R. 12, at 122-123; 75 Cong.Rec. 12379 (1932) (remarks of Rep. Ramspeck).
25
In 1932, both Houses of Congress passed an amendment to the Act providing for predetermination of prevailing wages by the Secretary and for penalties for failure to pay the rate "stated in the advertised specifications and made a part of the contract." See S. 3847, 72d Cong., 1st Sess. (1932). The bill, however, was vetoed by the President. See Veto Message, S.Doc.No. 134, 72d Cong., 1st Sess. (1932). But in 1935, Congress succeeded in adding the predetermination and enforcement provisions found in the current statute. Act of Aug. 30, 1935, 49 Stat. 1011.
26
The legislative history accompanying these amendments is significant in two respects. First, it indicates that Congress amended the Act to provide for predetermination of wages not only in order to end abuses,27 but "so that the contractor may know definitely in advance of submitting his bid what his approximate labor costs will be." S.Rep.No.1155, 74th Cong., 1st Sess., 2 (1935); H.R.Rep.No.1756, 74th Cong., 1st Sess., 2 (1935). Second, it demonstrates that Congress intended to give laborers and mechanics only "the same right of action against the contractor and his sureties in court which is now conferred by the bond statute." S.Rep.No.1155, at 2; H.R.Rep.No.1756, at 2.28 To imply a private right of action here would be to defeat each of these congressional objectives.
27
The legislative history of the 1964 amendment to the Act also cuts against respondent's position. In 1964, Congress considered and passed H.R.6041, 88th Cong., 1st Sess., a bill to amend the Act in order to include fringe benefits within the definition of wages. Pub.L.88-349, § 1, 78 Stat. 238. While H.R.6041 was under consideration, Representative Goodell introduced a bill that would have amended the Act to provide for judicial review of the Secretary's wage determinations at the behest of any aggrieved person, and that also would have conferred a private right of action on any laborer or mechanic who claimed that his employer had "refused or failed to pay the wages that he is required to pay by reason of a wage determination issued by the Secretary of Labor." H.R.9590, 88th Cong., 2d Sess., § 2, p. 4 (1964). Representative Goodell sought to have the substance of H.R.9590 considered during the House debate on H.R.6041. After extended debate on the merits of judicial review of Davis-Bacon determinations, however, the House invoked its rule against nongermane amendments, and therefore refused to consider Mr. Goodell's proposals.29 110 Cong.Rec. 1194-1204 (1964).
28
Since the Goodell amendments were not defeated on their merits, it cannot be said that Congress has flatly rejected the proposition that judicial review should be available under the Act. Nor can the views of this later Congress be treated as determinative of the question whether the Act's drafters intended to preclude any form of judicial review. Nonetheless, we think it significant that both the proponents and opponents of the Goodell amendments assumed that the Act did not contemplate judicial review of determinations made by the Secretary; they differed only over whether the Act should be amended to permit such review. Ibid. Further, although much of the debate centered on the desirability of permitting judicial review of wage determinations,30 respondent errs in contending that that was the sole topic of discussion, for several speakers expressed their view that the Act did not permit judicial review of any determination under the Act whatsoever.31 In particular, Representative Bell pointed out that workers could not seek judicial review of the Secretary's determination that certain work was " 'the installation of equipment' and not the type of construction work which was subject to Davis-Bacon," and "neither employers nor employees have any recourse except to beg the mercy of the Secretary or prevail upon their Congressman to intercede."32 Id., at 1201-1202. Thus, while not dispositive, the debate on the Goodell amendments reinforces the conclusion that it would be inappropriate for this Court to find that the Act implicitly creates the right of action contended for here.
29
Respondent, however, asserts that a contrary inference must be drawn from the Portal-to-Portal Act of 1947, 61 Stat. 84, as amended, 29 U.S.C. § 251 et seq. Relying on the analysis set forth in McDaniel II, 548 F.2d, at 694, respondent points out that § 6 of the Portal-to-Portal Act, 61 Stat. 87, 29 U.S.C. § 255(a), imposes a 2-year limitation on any cause of action for nonwillful "unpaid minimum wages, unpaid overtime compensation, or liquidated damages" under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., the Walsh-Healey Act, 41 U.S.C. § 35 et seq., or the Davis-Bacon Act. Since the Miller Act imposes a 1-year limitation on suits on the contractor's bond, 40 U.S.C. § 270b(b), respondent contends that the 2-year statute of limitations set forth in the Portal-to-Portal Act not only affirms the existence of a private cause of action under the Act, but excludes the proposition that that cause of action is limited to a suit on the Miller Act bond.
30
We agree with amicus United States, however, that this argument reads too much into the Portal-to-Portal Act. That statute was intended to curtail the numerous suits for unpaid compensation and liquidated damages under the FLSA that were filed after this Court's decision in Anderson v. Mount Clemens Pottery Co., 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946). See Unexcelled Chemical Corp. v. United States 345 U.S. 59, 61, 73 S.Ct. 580, 581, 97 L.Ed. 821 (1953). Although no portal-to-portal suits had been filed under the Davis-Bacon or Walsh-Healey Acts, see 93 Cong.Rec. 2088 (1947) (remarks of Sens. Donnell and McGrath), Congress chose to include those statutes within the scope of the Portal-to-Portal Act on the ground that they, like the FLSA, related to minimum wages and were therefore affected by the Mount Clemens decision. See H.R.Rep.No.71, 80th Cong., 1st Sess., 5 (1947); 93 Cong.Rec. 2088 (1947) (remarks of Sen. Donnell). The legislative history of the bills that became the Portal-to-Portal Act makes clear, however, that Congress simply did not recognize that it had created two incompatible statutes of limitations under the Davis-Bacon Act.33 Moreover, even if the Portal-to-Portal Act had been intended to create a longer statute of limitations for actions under the Davis-Bacon Act than that applicable to suits on the Miller Act bond, respondent has pointed to nothing in the legislative history of the Portal-to-Portal Act that suggests that Congress believed that the Davis-Bacon Act conferred a private right of action for back wages under a contract lacking prevailing wage stipulations; to the contrary, Congress' concern was to foreclose the possibility of portal-to-portal suits for back wages under contracts that did contain Davis-Bacon Act provisions.34
C
31
Finally, the underlying purpose of the legislative scheme indicates that Congress did not intend to create the right of action asserted by respondent. As noted above, the 1935 amendments added two key features to the Act: administrative predetermination of the minimum wages that the contractor must pay his laborers and mechanics, and a means whereby laborers and mechanics could recover back wages under a contract containing prevailing wage stipulations. The Act thus carefully balances the interests of contractors and their employees. The contractor is able to "know definitely in advance of submitting his bid what his approximate labor costs will be,"35 S.Rep.No.1155, at 2, while the laborer or mechanic is given a right of action to enforce the stipulated wages. To imply a private right of action to sue for Davis-Bacon wages under a contract that does not contain prevailing wage stipulations would destroy this careful balance.
32
In addition, as petitioner and amicus United States point out, the implication of a private right of action where there has been no Davis-Bacon determination would introduce substantial uncertainty into Government contracting. In the case of cost-plus contracts, federal budgeting would be disrupted by a postcontract judicial determination that wages higher than those set forth in the contract must be paid. Fixed-price contracting also would be adversely affected, since it is likely that contractors would submit inflated bids to take into account the possibility that they would have to pay wages higher than those set forth in the specifications.36 Finally, postcontract challenges would disrupt timely and efficient performance of Government contracts, and might well provoke jurisdictional disputes between construction unions and unions representing nonconstruction workers.37
33
The implication of private right of action here would undercut as well the elaborate administrative scheme promulgated pursuant to Reorganization Plan No. 14. The goal of that plan was to introduce consistency into the administration and enforcement of the Act and related statutes; to that end, the Secretary and contracting agencies have issued detailed regulations governing, among other things, coverage determinations. The uniformity fostered by those regulations would be short-lived if courts were free to make postcontract coverage rulings. Respondent, however, replies that no administrative functions would be disrupted by judicial intervention, since Davis-Bacon stipulations are incorporated by operation of law into every federal construction contract, regardless of whether the contracting agency has made a coverage determination. But this assertion ignores the fact that the Act does not define the terms "construction, alteration, and/or repair," "public buildings or public works," and "mechanics and/or laborers."38 A number of commentators have noted the difficulty of determining whether particular work constitutes "construction" within the meaning of the Act, particularly when the work is performed in the context of an AEC contract involving a nuclear facility.39 Like other contracting agencies, AEC and its successors have developed detailed guidelines for determining whether particular work is covered by the Act. See n. 15, supra. Whatever may be the merits of allowing judicial review of these complex coverage determinations prior to contracting, it clearly would be inappropriate for a court to substitute its judgment for that of the contracting agency in a private action brought after the contract was let.
IV
34
In sum, to imply a private right of action under these circumstances would severely disrupt federal contracting. Nothing in the language, history, or purpose of the Davis-Bacon Act suggests that Congress intended that result. Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
35
It is so ordered.
1
Section 1(a) reads:
"(a) The advertised specifications for every contract in excess of $2,000, to which the United States or the District of Columbia is a party, for construction, alteration, and/or repair, including painting and decorating, of public buildings or public works of the United States or the District of Columbia within the geographical limits of the States of the Union, or the District of Columbia, and which requires or involves the employment of mechanics and/or laborers shall contain a provision stating the minimum wages to be paid various classes of laborers and mechanics which shall be based upon the wages that will be determined by the Secretary of Labor to be prevailing for the corresponding classes of laborers and mechanics employed on projects of a character similar to the contract work in the city, town, village, or other civil subdivision of the State, in which the work is to be performed, or in the District of Columbia if the work is to be performed there; and every contract based upon these specifications shall contain a stipulation that the contractor or his subcontractor shall pay all mechanics and laborers employed directly upon the site of the work, unconditionally and not less often than once a week, and without subsequent deduction or rebate on any account, the full amounts accrued at time of payment, computed at wage rates not less than those stated in the advertised specifications, regardless of any contractual relationship which may be alleged to exist between the contractor or subcontractor and such laborers and mechanics, and that the scale of wages to be paid shall be posted by the contractor in a prominent and easily accessible place at the site of the work; and the further stipulation that there may be withheld from the contractor so much of accrued payments as may be considered necessary by the contracting officer to pay to laborers and mechanics employed by the contractor or any subcontractor on the work the difference between the rates of wages required by the contract to be paid laborers and mechanics on the work and the rates of wages received by such laborers and mechanics and not refunded to the contractor, subcontractors, or their agents."
2
The Act also applies to contracts entered into without advertising for proposals, if the Act would be otherwise applicable. Act of Mar. 23, 1941, 55 Stat. 53; Act of Aug. 21, 1941, 55 Stat. 664, 40 U.S.C. § 276a-7.
3
Section 3 provides:
"(a) The Comptroller General of the United States is hereby authorized and directed to pay directly to laborers and mechanics from any accrued payments withheld under the terms of the contract any wages found to be due laborers and mechanics pursuant to this Act; and the Comptroller General of the United States is further authorized and is directed to distribute a list to all departments of the Government giving the names of persons or firms whom he has found to have disregarded their obligations to employees and subcontractors. No contract shall be awarded to the persons or firms appearing on this list or to any firm, corporation, partnership, or association in which such persons or firms have an interest until three years have elapsed from the date of publication of the list containing the names of such persons or firms.
"(b) If the accrued payments withheld under the terms of the contract, as aforesaid are insufficient to reimburse all the laborers and mechanics, with respect to whom there has been a failure to pay the wages required pursuant to this Act, such laborers and mechanics shall have the right of action and/or of intervention against the contractor and his sureties conferred by law upon persons furnishing labor or materials, and in such proceedings it shall be no defense that such laborers and mechanics accepted or agreed to accept less than the required rate of wages or voluntarily made refunds."
4
Under § 1(a)(2) of the Miller Act, 40 U.S.C. § 270a(a)(2), as it read at the time of the institution of the present suit, any person entering into a contract exceeding $2,000 for the "construction, alteration, or repair of any public building or public work of the United States" must furnish, inter alia, a payment bond for the protection of persons supplying labor or material. Under § 2(a) of that Act 40 U.S.C. § 270b(a), suits on such a bond may be brought by any person who has furnished labor or material in the performance of the contract and has not been paid in full within 90 days.
By Pub.L. 95-585. 92 Stat. 2484, approved Nov. 2, 1978, the $2,000 figure was raised to $25,000.
5
Section 2 of the Act, as added Aug. 30, 1935, 49 Stat. 1012, 40 U.S.C. § 276a-1, provides that every contract within the scope of the Act must stipulate that the Government may terminate the contractor's right to proceed with the work in the event that it is found by the contracting officer that any laborer or mechanic "has been or is being paid a rate of wages less than the rate of wages required by the contract to be paid." Section 3(a), see n. 3, supra, contains the disqualification provision.
6
The Reorganization Plan requires the Secretary to "prescribe appropriate standards, regulations, and procedures" to be observed by contracting agencies, and directs the Secretary to make "such investigations, concerning compliance with and enforcement of such labor standards, as he deems desirable." The Presidential message accompanying the plan made clear, however, that the contracting agency retains the primary responsibility for investigating violations and enforcing the Act. 5 U.S.C.App., p. 746. See 29 CFR § 5.6 (1980); Elisburg, Wage Protection Under the Davis-Bacon Act, 28 Lab.L.J. 323, 326-327 (1977).
The Secretary derives further authority from the Copeland Anti-Kickback Act, ch. 482, § 2, 48 Stat. 948, as amended, 40 U.S.C. § 276c, which requires him to make reasonable regulations for federal construction contractors, including a provision that each contractor shall furnish weekly a statement of the wages paid each employee during the preceding week. In addition, § 10 of the Portal-to-Portal Act of 1947, 61 Stat. 89, 29 U.S.C. § 259, provides that an employer shall not be liable for failure to pay wages required by the Davis-Bacon Act if he proves good-faith reliance on "any written administrative regulation, order, ruling, approval, or interpretation" of the Secretary.
7
Part 1 of 29 CFR sets forth procedures for predetermining the prevailing wage rate. Part 3, issued pursuant to the Copeland Anti-Kickback Act, requires submission of weekly payroll data. Part 5 provides guidelines for application and enforcement of the Act, including certain coverage definitions. 29 CFR § 5.2 (1980). Finally, procedures governing practice before the Department of Labor's Wage Appeals Board are set forth in Part 7.
8
The contracting agency determines the appropriate wage rate either by referring to the "area" wage determinations published by the Secretary in the Federal Register or, if no such determinations exist for the relevant area or class of work, by requesting a project wage determination from the Wage and Hour Division of the Department of Labor. See 29 CFR §§ 1.5, 1.6 (1980); Thieblot, at 31-34.
9
The binding effect of the Department's coverage determination on the contracting agency is disputed. Compare, e. g., 41 Op.Atty.Gen. 488 (1960) (Secretary has final authority to determine whether employees are "laborers or mechanics" under Act and related statute), with 40 Comp.Gen. 565 (1961) (judgment of contracting officer that Act not applicable cannot be reversed by the Secretary). Cf. 43 Op.Atty.Gen.No.14 (1979) (Secretary has final authority to determine whether particular contracts are covered by Walsh-Healey or Service Contract Acts).
There is currently no administrative procedure that expressly provides review of a coverage determination after the contract has been let. See 40 Comp.Gen., at 570-571 (omission of minimum wage stipulations cannot be cured after contract awarded); North Georgia Bldg. & C. T. C. v. U. S. Dept. of Transp., 399 F.Supp. 58, 62 (ND Ga. 1975). Proposed Department of Labor regulations, however, provide for the postaward incorporation of wage determinations in contracts that do not originally include them. 44 Fed.Reg. 77029 (Dec. 28, 1979) (proposed 29 CFR § 1.6(f)). The United States, as amicus curiae, states that several contracting agencies, including the Department of Energy, have objected to the proposed regulations, asserting that contracting agencies have final authority with respect to coverage determinations for a particular contract.
10
The correctness of the Secretary's wage rate determination is not subject to judicial review. See, e. g., United States v. Binghamton Constr. Co., 347 U.S. 171, 177, 74 S.Ct. 438, 441, 98 L.Ed. 594 (1954). At least two Courts of Appeals have held, however, that the practices and procedures of the Secretary are reviewable under the standards of the Administrative Procedure Act, 5 U.S.C. § 701 et seq. See Virginia ex rel. Commissioner, Dept. of Transp. v. Marshall, 599 F.2d 588, 592 (CA4 1979); North Georgia Bldg. & Constr. Trades Council v. Goldschmidt, 621 F.2d 697, 707-708 (CA5 1980). Cf. Fry Bros. Corp. v. HUD, 614 F.2d 732, 733 (CA10 1980). We express no view on the latter question.
11
See Energy Reorganization Act of 1974, 88 Stat. 1233, 42 U.S.C. § 5801 et seq. ; Department of Energy Organization Act, 91 Stat. 565, 42 U.S.C. § 7101 et seq. (1976 ed., Supp. III). For convenience, we refer to the contracting agency here as the AEC.
12
DOE procurement regulations are currently set forth in 41 CFR, ch. 9 (1979).
13
Article XXXIII of the contract provided:
"1. This contract does not contemplate the performance of work by the Association [petitioner], with its own employees, which the Commission [AEC] determines is subject to the Davis-Bacon Act. Such work, if any, performed under this contract shall be procured by subcontracts which shall be subject to the written approval of the Commission and contain the provisions relative to labor and wages required by law to be included in contracts for the construction, alteration, and/or repair, including painting and decorating, of a public building or public work." App. 55.
14
The letter stated that Art. XXXIII was included in the contract "with the following understandings":
"(a) If presently unforeseen conditions arise which make it necessary in the best interests of timely and efficient completion of the accelerator that work be performed by the Association with its own employees which AEC determines is subject to the Davis-Bacon Act, the contract will be modified as appropriate to incorporate the provisions relative to labor and wages required by law.
"(b) Should the Laboratory Director desire a review of any determinations with respect to the applicability of the Davis-Bacon Act, written requests for such reviews may be submitted to the AEC General Manager for consideration and resolution." App. 62.
15
DOE guidelines for such determinations are set forth in 41 CFR Subpart 9-18.7 (1979). The regulations provide that the Act does not cover, inter alia : "[c]ontracts for servicing or maintenance work in an existing plant, including installation or movement of machinery or other equipment, and plant rearrangement, which involve only an incidental amount of work . . . that would otherwise be considered construction, alteration and/or repair," § 9-18.701-51(a)(3); and contracts for work involving "[e]xperimental development of equipment, processes and devices, including assembly, fitting, installation, testing, reworking, and disassembly." § 9-18.701-52(a)(4).
The regulations make clear, however, that "[t]he classification of a contract as a contract for operational or maintenance activities does not necessarily mean that all work and activities at the contract location are classifiable as outside of Davis-Bacon Act coverage." The procuring officer is thus charged with scrutinizing proposed work assignments in order to ensure that "[c]ontractors whose contracts do not contemplate the performance of covered work with the contractor's own forces are neither asked nor authorized to perform work within the scope of the Davis-Bacon Act. If the actual work assignments do involve covered work, the contract should be modified to include applicable provisions of the Davis-Bacon Act." § 9-18.701-52(b).
16
Like this case, McDaniel was a class action for back wages brought by an employee under an AEC contract which provided that work subject to the Act was to be subcontracted, rather than performed by the contractor's own employees. In McDaniel, however, the plaintiff alleged that the contract contained prevailing wage stipulations, and, for the purpose of the summary judgment motion, the defendant did not deny that allegation. See 512 F.2d, at 584; 548 F.2d, at 695. Defendant also did not contravene the plaintiff's allegation that the express remedies provided by the Act were unavailable. 512 F.2d, at 587. Assuming these facts to be true, the Court of Appeals held in McDaniel I that inasmuch as the statutory remedies provided in the Act had proved ineffective, "we should be especially 'alert to provide such remedies as are necessary to make effective the congressional purpose,' " ibid., quoting J. I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964). Accordingly, the Court of Appeals held that the complaint stated a cause of action under the Act.
This Court subsequently granted certiorari, and vacated and remanded McDaniel I for reconsideration in the light of Securities Investor Protection Corp. v. Barbour, 421 U.S. 412, 95 S.Ct. 1733, 44 L.Ed.2d 263 (1975), and Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). On remand, the Court of Appeals reaffirmed its earlier opinion, again stressing that "the plaintiffs-appellants allege that the government contract with appellee did contain the prevailing wage requirement, and appellee does not deny it." 548 F.2d, at 695 (emphasis in original). Thereafter, defendant petitioned for certiorari; as indicated in the text, certiorari was denied.
17
Respondent contends that the issue of an implied right of action under the Act was not raised in the District Court and the Court of Appeals, and that, therefore, it is not properly before this Court. In addition, he asserts that the AEC viewed this contract as one covered by the Act, and thus that the case does not present the question whether the Act confers an implied right of action on an employee under a contract that has been predetermined administratively not to call for Davis-Bacon work. We find both contentions to be without merit.
First, our reading of the record leads us to conclude that the question we decide today was raised and passed upon by the District Court and the Court of Appeals. In its answer to the complaint, petitioner alleged as an affirmative defense that the complaint failed to state a claim upon which relief could be granted because of respondent's failure to allege a contract containing Davis-Bacon provisions or wage stipulations. App. 17. In opposition to petitioner's motion for summary judgment, respondent argued that the absence of Davis-Bacon Act stipulations in the contract was itself a violation of the Act that should not serve to shield petitioner from the implied right of action found in McDaniel. App. 32. In ruling upon petitioner's motion for summary judgment, the District 'Court characterized the issue as 'whether plaintiff class can proceed in this action under the Davis-Bacon Act absent any showing that the government and [petitioner] have made a determination that the contract is subject to the Act's provisions.' Id., at 33. Finally, the Court of Appeals stated: 'Our decision in the present case flows directly from the McDaniel opinions,' which, the court noted, had held that 'employees have an implied right of action to sue for wages due under the Act.' 595 F.2d, at 397. '[C]omplications' arose 'only from the procedural posture' of this case and from petitioner's 'renewed attempt to establish an exhaustion requirement.' Ibid.
We are similarly unconvinced by respondent's contention that the contracting agency viewed the contract as one covered by the Davis-Bacon Act. Respondent points out that Art. XXXIII of the contract states that Davis-Bacon work is to be subcontracted, and that the AEC letters construing that clause stipulate that if petitioner's employees do perform Davis-Bacon work, the contract will be modified to include Davis-Bacon Act determinations. But rather than showing that the AEC considered this contract to be one for Davis-Bacon Act work, these provisions demonstrate precisely the opposite. Since the District Court found that the contract was not modified to include Davis-Bacon stipulations, it is clear that the contracting agency did not view the contract as covered by the Act. Thus, this case presents the issue that was not raised in McDaniel I and II.
18
As noted above, it is settled that the correctness of wage determinations of the Secretary are not subject to judicial review. See n. 10, supra.
19
Compare, McDaniel (Act confers implied private right of action to enforce prevailing wage stipulations) with United States ex rel. Glynn v. Capeletti Bros., 621 F.2d 1309, 1312, n. 10 (CA5 1980) (disapproving McDaniel).
While we recognize that some of our reasoning arguably applies to the question whether the Act creates any implied right of action, we have no reason to reach that broader issuer here. Further, we note that there is some question whether that issue is properly before us in light of the following colloquy at oral argument:
'QUESTION: Mr. Mann [attorney for petitioner], could I just be sure I understand your position. Assume here there had been a predetermination that some part of the construction work on the laboratory would be covered by Davis-Bacon. And the laboratory did not pay those-and it was performed by their own people. And supposing an employee didn't know about that till the contract was performed and then he had gotten less than the Davis-Bacon Act provided, would he have in your view of the law . . . a private cause of action against your client for the difference between what he was paid and what he actually should have been paid?
'MR. MANN: We have taken the position on that question . . . that there is under the Act no private right of action at all, even to recover under express provisions. There may be a right of action in a state court, under a state common law theory of third-party beneficiary, but not in federal court, because there's no real federal question there; it's a contract question involved there. So we've taken the position that even if there were an express contract that there would not be a private right to go to court.
'QUESTION: Did you take that position in the 7th Circuit?
'MR.. MANN: . . . [T]hat question was not asked in the 7th Circuit, and that issue was not actually before us.
'QUESTION: But you didn't raise that in the 7th Circuit?
'MR. MANN: That's correct.
'QUESTION: Or in the trial court?
'MR. MANN: In the trial court the question of the private right of action per se was raised in the context of the jurisdiction of the court to revise the contract. That is, we didn't really address the issue whether in general there is a private right to enforce a specific clause, but whether there is a privateright to obtain the court determination of the fundamental issues of coverage, of classification, of rate, that was the issue presented to the trial court.' Tr. of Oral Arg. 8-9.
20
In McDaniel, the Court of Appeals accepted as true respondent's allegation that no funds had been withheld by the Government contracting agency and that no Miller Act payment bond had been filed. See n. 16, supra.
21
Given this conclusion, we find it unnecessary to consider the fourth Cort factor, i. e., whether the cause of action is "one traditionally relegated to state law." Cort v. Ash, 422 U.S., at 78, 95 S.Ct., at 2087. See Touche Ross, 442 U.S., at 579-580, 99 S.Ct., at 2491 (BRENNAN, J., concurring) (when neither statute nor legislative history indicates an intent to create a federal right in favor of the plaintiff, "the remaining two Cort factors cannot by themselves be a basis for implying a right of action").
22
In Transamerica, the Court refused to imply a private cause of action under § 206 of the Investment Advisers Act of 1940, 54 Stat. 852, as amended, 15 U.S.C. § 80b-6, since that provision "simply proscribes certain conduct, and does not in terms create or alter any civil liabilities." 444 U.S., at 19, 100 S.Ct., at 247. The Court noted: "Section 206 of the Act . . . concededly was intended to protect the victims of the fraudulent practices it prohibited. But the mere fact that the statute was designed to protect advisers' clients does not require the implication of a private cause of action for damages on their behalf." Id., at 24, 100 S.Ct., at 249.
23
In Cannon, the Court found an implied right of action under Title IX of the Education Amendments of 1972, § 901(a), 86 Stat. 373, as amended, 20 U.S.C. § 1681, which provides that "[n]o person in the United States shall, on the basis of sex, . . . be subject to discrimination under any educational program or activity receiving Federal financial assistance." As indicated in the text, however, it pointed out that "[t]here would be far less reason to infer a private remedy in favor of individual persons if Congress, instead of drafting Title IX with an unmistakable focus on the benefited class, had written it simply as a ban on discriminatory conduct by recipients of federal funds or as a prohibition against the disbursement of public funds to educational institutions engaged in discriminatory practices." 441 U.S., at 690-693, 99 S.Ct., at 1954-55.
Further, the Fifth Circuit in Capeletti, 621 F.2d, at 1313-1314, noted that Cannon distinguished the language of an alternative version of Title XI that Congress did not adopt:
" 'The Secretary shall not make any grant . . . nor . . . enter into any contract with any institution of higher education . . . unless the . . . contract . . . for the grant . . . contains assurances satisfactory to the Secretary that any such institution . . . will not discriminate on the basis of sex.' " See 441 U.S., at 693, n. 14, 99 S.Ct., at 1955.
The court in Capeletti pointed out that there are "obvious similarities" between the language of the rejected alternative version of Title IX and § 1 of the Davis-Bacon Act: "Neither section 1 of the Davis-Bacon Act nor the proposed Title IX statute cited in Cannon focuses on the benefited class in its right—or duty—creating language. Instead, in both instances the duty created by the statutory language is imposed upon federal agencies to ensure that certain provisions are included in federal contracts." 621 F.2d, at 1314.
24
The Court has observed that "when legislation expressly provides a particular remedy or remedies, courts should not expand the coverage of the statute to subsume other remedies." National Railroad Passenger Corp. v. National Assn. of Railroad Passengers, 414 U.S. 453, 458, 94 S.Ct. 690, 693, 38 L.Ed.2d 646 (1974). There is some evidence that Congress intended the suit on the contractor's bond to be the sole method of enforcing the obligations imposed by the Act. See n. 28, infra.
25
Mr. Bacon continued:
"I think that it is a fair proposition where the Government is building these post offices and public buildings throughout the country that the local contractor and local labor may have a 'fair break' in getting the contract. If the local contractor is successful in obtaining the bid, it means that local labor will be employed, because that local contractor is going to continue in business in that community after the work is done. If an outside contractor gets the contract, and there is no discrimination against the honest contractor, it means that he will have to pay the prevailing wages, just like the local contractor." 74 Cong.Rec. 6510 (1931).
See id., at 6505 (remarks of Rep. Welch); 6510 (remarks of Rep. LaGuardia); 6512 (remarks of Rep. Norton); 6512 (remarks of Rep. Cochran); 6513 (remarks of Rep. Briggs); 6513-6515 (remarks of Rep. Granfield); 6515-6517 (remarks of Rep. Kopp); 6517-6518 (remarks of Rep. Fitzgerald); 6519 (remarks of Rep. Condon); 6520 (remarks of Rep. Zihlman). See also Hearings on H.R. 16619 before the House Committee on Labor, 71st Cong., 3d Sess., 19-21 (1931) (statement of Rep. Bacon); Hearings on S. 5904 before the Senate Committee on Manufactures, 71st Cong., 3d Sess., 9, 23 (1931); S.Rep.No.1445, 71st Cong., 3d Sess., 2 (1931); H.R.Rep.No.2453, 71st Cong., 3d Sess., 2 (1931).
26
The decision to eschew both predetermination of wages and penalty provisions was deliberate. In the words of the Secretary:
"May I say that what prompted us to draft or suggest this bill in its present form was that we believed that 90 per cent of the controversies that may arise hereafter would settle themselves and that instead of endeavoring to fix a prevailing wage rate in advance we were all of the opinion that by the simple insertion of these provisions in contracts made with the contractors we could accomplish the desired results."
Hearings on H.R. 16619 before the House Committee on Labor, 71st Cong., 3d Sess., 2-3 (1931).
27
The House and Senate Reports stated that predetermination of wages "would strengthen the present law considerably since at present the Secretary of Labor is not permitted to fix the minimum wage rates until a dispute has arisen in the course of construction. In practice this has meant that in the early stages of the contract, unscrupulous contractors have defied orders of the contracting officers to pay the prevailing rate until a formal adjudication has been requested of the Secretary of Labor. This means that laborers and mechanics underpaid until the decision was rendered had no redress since it has been held that the decisions of the Secretary could not operate retroactively." S.Rep.No.1155, 74th Cong., 1st Sess., 2-3 (1935); H.R.Rep.No.1756, 74th Cong., 1st Sess., 2-3 (1935).
28
The bond statute to which the Reports that accompany the amendments refer is the Heard Act, ch. 280, 28 Stat. 278, from which the Miller Act derived. At the time of the 1935 amendments to the Davis-Bacon Act, it was well established that the failure to supply a contractor's bond did not give rise to a private right of action under the Heard Act. See United States ex rel. Zambetti v. American Fence Constr. Co., 15 F.2d 450 (CA2 1926); Strong v. American Fence Constr. Co., 245 N.Y. 48, 156 N.E. 92 (1927). In Strong, then Chief Judge Cardozo wrote for a unanimous court:
"Congress has said that contractors shall be liable to materialmen and laborers in an amount to be made determinate by the giving of the bond. The statutory liability, which in turn is inseparably linked to the statutory remedy, assumes the existence of a bond as an indispenable condition. Till then, there is neither Federal jurisdiction nor any right of action that can rest upon the statute." Id., at 52, 156 N.E., at 93.
While Strong held that laborers and materialmen might recover as third-party beneficiaries in state court if the contractor had breached a promise to provide a bond, id., at 53, 156 N.E., at 93, it stressed that no cause of action existed under the Heard Act unless a bond in fact had been filed. The Miller Act, which was originally passed by the same Congress that enacted the 1935 amendments to the Davis-Bacon Act, also has been so construed. See Harry F. Ortlip Co. of Pa. v. Alvey Ferguson Co., 223 F.Supp. 893, 894-895 (ED Pa.1963); Gallaher & Speck, Inc. v. Ford Motor Co., 226 F.2d 728, 731 (CA7 1955). It would be anomalous to assume that Congress intended that the failure to include Davis-Bacon stipulations in a contract would give rise to a private cause of action, when the failure to file the Heard Act bond had been held to confer no such right.
29
The House subsequently defeated Representative Goodell's attempt to introduce amendments providing for judicial review of fringe benefits determinations. 110 Cong.Rec. 1227-1229 (1964).
30
See, e. g., id., at 1198 (remarks of Rep. Griffin); 1200 (remarks of Reps. Pucinski and Broyhill); 1201 (remarks of Rep. Fogarty); 1202 (remarks of Rep. Skubitz).
31
See, e. g., id., at 1197 (remarks of Rep. Goodell) ("The Davis-Bacon Act is the only Federal wage-fixing law on the books where you do not have a provision for aggrieved parties to get into the court and let the judge tell them what Congress meant when it wrote the law"); 1200 (remarks of Rep. Broyhill) (Act evades "our basic concept of checks and balances"). See also S.Rep.No.963, 88th Cong., 2d Sess., 12 (1964), U.S.Code Cong. & Admin.News 1964, p. 2339 (dissenting views) ("The Davis-Bacon Act is the only Federal statute regulating wages under which the courts are completely excluded from participation").
32
There is other evidence that one of the objectives of the Goodell amendments was to provide for judicial review of coverage determinations. In the early 1960's, a controversy arose over whether work on missile sites constituted "construction, alteration and/or repair" within the meaning of the Act. See Donahue, The Davis-Bacon Act and The Walsh-Healey Public Contracts Act: A Comparison of Coverage and Minimum Wage Provisions, 29 Law & Contemp.Prob. 488, 495 (1964); Cox, The Davis-Bacon Act and Defense Construction—Problems of Statutory Coverage, in 15th Annual NYU Conference on Labor 151 (1962). In an attempt to resolve this issue, the Secretary established the Missile Site Public Contract Advisory Committee, which issued a report setting forth criteria for determining whether missile site work was covered by the Act. See BNA Daily Labor Rep.No.200, p. E-1 (Oct. 16, 1961). The report itself triggered disagreement between contractors' associations and construction trade unions, on the one hand, and manufacturers and industrial unions on the other. BNA Daily Labor Rep.No.51, pp. A-7 to A-10 (Mar. 14, 1962). In response, the minority members of the House Labor Committee made clear that they intended to sponsor an amendment to the Act that would provide for judicial review of coverage determinations. Id., at A-11. See also H.R.Rep.No.308, 88th Cong., 1st Sess., 23-29 (1963) (dissenting views).
33
The Senate bill, S. 70, 80th Cong., 1st Sess. (1947), would have amended only the FLSA "to exempt employers from liability for portal-to-portal wages." S.Rep.No.37, 80th Cong., 1st Sess. (1947). In contrast, the House bill, H.R.2157, 80th Cong., 1st Sess. (1947), would have limited portal-to-portal actions under the Davis-Bacon Act and the Walsh-Healey Act as well. The Senate Committee Report on H.R.2157 acceded to the wider coverage of the House bill; however, rather than adopting the 1-year limitations period set forth in H.R.2157—which was compatible with the 1-year limitations period of the Miller Act, 40 U.S.C. § 270b(b)—the Senate Committee Report retained the 2-year limitations period of S. 70. S.Rep.No.48, 80th Cong., 1st Sess., 50-51 (1947). The 2-year limitations period was recommended by the Conference Committee, H.R.Conf.Rep.No.326, 80th Cong., 1st Sess., 13-14 (1947), and was enacted. 61 Stat. 87.
The Senate Report accompanying H.R.2157, like the Senate debate that followed, suggests that Congress was not aware that it had created two inconsistent statutes of limitations under the Davis-Bacon Act. The Senate Report erroneously stated that "there is no limitation provision in either the Walsh-Healey or the Bacon-Davis Acts." S.Rep.No.48, 80th Cong., 1st Sess., 42 (1947). The same unfamiliarity with the Davis-Bacon Act was manifested during the debate on the bill. Senator Donnell, who introduced the bill in the Senate, stated that the Davis-Bacon Act had not been mentioned in the Senate subcommittee hearings on the legislation. 93 Cong.Rec. 2124 (1947). See also id., at 2250, 2253 (remarks of Sen. McGrath); id., at 2352-2353 (remarks of Sen. Barkley).
34
During the Senate debate on the Portal-to-Portal Act, Senator McGrath argued that the 2-year statute of limitations was unfair to workers, since the "administrative procedures which are necessary to determine the validity of the workman's claim for back wages under the Davis-Bacon Act frequently take a considerable length of time which may very easily run for a period of more than 2 years." 93 Cong.Rec. 2252 (1947). As the United States argues, Senator McGrath's statement strongly suggests that the limitations period of the Portal-to-Portal Act was designed to apply to the explicit statutory remedy set forth in the Davis-Bacon Act.
35
It is clear, however, that the Secretary's prevailing wage determinations do not constitute a representation that the "specified minima will in fact be the prevailing rates." United States v. Binghamton Constr. Co., 347 U.S., at 178, 74 S.Ct. at 442. The 1935 amendments were designed to prevent only a postcontract determination that the prevailing rate was higher than that on which the successful contractor had based his bid.
36
Significantly, the Comptroller General had recommended that the original Act provide for predetermination of wages precisely because he "feared that contractors would inflate their bids to provide a reserve against higher postdeterminations." Legislative History 2.
37
The history of the construction of missile sites during the early 1960's reveals that the inclusion of Davis-Bacon stipulations in a contract may give rise to a jurisdictional dispute. See n. 32, supra. Hearings on Work Stoppages at Missile Bases, before the Permanent Subcommittee on Investigations of the Senate Committee on Government Operations, 87th Cong., 1st Sess., 13, 501, 584, 594 (1961).
38
Accordingly, as petitioner points out, respondent's reliance on cases such as G. L. Christian & Associates v. United States, 160 Ct.Cl. 1, 11-17, 312 F.2d 418, 424-427 (termination-for-convenience clause incorporated in contract by operation of law), reargument denied, 160 Ct.Cl. 58, 60-67, 320 F.2d 345, 347-351, cert. denied, 375 U.S. 954, 84 S.Ct. 444, 11 L.Ed.2d 314 (1963), is misplaced, since the Act is not self-implementing.
39
See Thieblot, at 26-27, 64-67, 143-146; Donahue, The Davis-Bacon Act and the Walsh-Healey Public Contracts Act: A Comparison of Coverage and Minimum Wage Provisions, 29 Law & Contemp.Prob. 488, 494-497 (1964); Price, A Review of the Application of the Davis-Bacon Act, 14 Lab.Law J. 614, 619-621 (1963).
| 89
|
450 U.S. 728
101 S.Ct. 1437
67 L.Ed.2d 641
Lloyd BARRENTINE et al., Petitioners,v.ARKANSAS-BEST FREIGHT SYSTEM, INC., et al.
No. 79-2006.
Argued Jan. 13, 1981.
Decided April 6, 1981.
Syllabus
Petitioner truckdrivers are not paid for the time spent conducting a required pre-trip safety inspection of respondent employer motor carrier's trucks and transporting trucks that fail such inspection to the employer's on-premises repair facility. Petitioners' union submitted a wage claim for petitioners' pretrip inspection and transportation time to a joint grievance committee pursuant to its collective-bargaining agreement with petitioners' employer. The joint committee rejected the claim without explanation. Petitioners then filed an action in Federal District Court, alleging that the pretrip safety inspection and transportation time was compensable under § 6 of the Fair Labor Standards Act (FLSA) and that they were therefore entitled to the statutory remedy of actual and liquidated damages, costs, and reasonable attorney's fees. They also alleged that respondent union had breached its duty of fair representation, and sought to have the joint grievance committee's decision set aside and to have proper compensation awarded under the collective-bargaining agreement. The District Court addressed only the fair-representation claim and rejected it. The Court of Appeals affirmed, and also held that the District Court was correct in not addressing the FLSA claim, concluding that petitioners' voluntary submission of their grievances to arbitration barred them from asserting their statutory wage claims in the subsequent court action.
Held : Petitioner's wage claims under the FLSA are not barred by the prior submission of their grievances to the contractual dispute-resolution procedures. Pp. 734-746.
(a) The FLSA rights petitioners seek to assert are independent of the collective-bargaining process. Such rights devolve on petitioners as individual workers, not as members of the union, and are not waivable. While courts should defer to an arbitral decision where the employee's claim is based on rights arising out of a collective-bargaining agreement, different considerations apply where the employee's claim is based on rights arising out of a statute, such as the FLSA, designed to provide minimum substantive guarantees to individual workers. Cf. Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147. Pp. 734-741.
(b) There are two reasons why an employee's right to a minimum wage and overtime pay under the FLSA might be lost if submission of his wage claim to arbitration precluded him from later bringing an FLSA suit in federal court. First, even if the employee's claim were meritorious, his union might, without breaching its duty of fair representation, reasonably and in good faith decide not to support the claim vigorously in arbitration. Second, even when the union has fairly and fully presented the employee's wage claim, the employee's statutory rights might still not be adequately protected. Because the arbitrator is required to effectuate the intent of the parties, rather than to enforce the statute, he may issue a ruling that is inimical to the public policies underlying the FLSA, thus depriving an employee of protected statutory rights. Furthermore, not only are arbitral procedures less protective of individual statutory rights than are judicial procedures, but also arbitrators very often are powerless to grant the aggrieved employees as broad a range of relief. Under the FLSA, courts can award actual and liquidated damages, reasonable attorney's fees, and costs, whereas an arbitrator can award only that compensation authorized by the wage provisions of the collective-bargaining agreement. Pp. 742-745.
8th Cir., 615 F.2d 1194, reversed.
David C. Vladeck, Washington, D. C., for petitioners.
S. Walton Maurras, Fort Smith, Ark., for respondents.
Justice BRENNAN delivered the opinion of the Court.
1
The issue in this case is whether an employee may bring an action in federal district court, alleging a violation of the minimum wage provisions of the Fair Labor Standards Act, 52 Stat. 1060, as amended, 29 U.S.C. § 201 et seq., after having unsuccessfully submitted a wage claim based on the same underlying facts to a joint grievance committee pursuant to the provisions of his union's collective-bargaining agreement.
2
* Petitioner truckdrivers are employed at the Little Rock terminal of respondent Arkansas-Best Freight Systems, Inc., an interstate motor carrier of freight. In accordance with federal regulations and Arkansas-Best's employment practices, petitioners are required to conduct a safety inspection of their trucks before commencing any trip, and to transport any truck failing such inspection to Arkansas-Best's on-premises repair facility. See 49 CFR §§ 392.7, 392.8 (1980). Petitioners are not compensated by their employer for the time spent complying with these requirements.1
3
Pursuant to the collective-bargaining agreement between Arkansas-Best and petitioners' union, respondent Local 878 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, petitioner Barrentine and another driver filed a series of grievances against Arkansas-Best.2 They alleged that Art. 50 of the collective-bargaining agreement, which requires Arkansas-Best to compensate its drivers "for all time spent in [its] service,"3 entitled them to compensation for the pre-trip inspection and transportation time.4 Petitioners' union presented these grievances to a joint grievance committee for final and binding decision pursuant to Art. 44 of the collective-bargaining agreement.5 The joint committee, composed of three representatives of the union and three representatives of the employer, rejected the grievances without explanation. App. 22.
4
In March 1977, petitioners filed this action in the United States District Court for the Eastern District of Arkansas.6 In the first count of their complaint, petitioners alleged that the pretrip safety inspection and transportation time was compensable under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq.,7 and that they were accordingly entitled to the statutory remedy of actual and liquidated damages, costs, and reasonable attorney's fees.8 In the second count, petitioners alleged that the union and its president had breached the union's duty of fair representation, apparently by entering into a "side deal" with Arkansas-Best regarding compensation of the pretrip inspection and transportation time. With respect to this claim, petitioners sought to have the decision of the joint grievance committee set aside and to have proper compensation awarded under the collective-bargaining agreement.
5
The District Court addressed only the fair representation claim. While it conceded that "the evidence seems . . . rather to predominate in favor of the finding that there was a side agreement" as petitioners alleged, it found that the existence of such an agreement did not in itself give rise to a breach of the union's duty of fair representation, because the labor laws permit "parties by their own actions . . . [to] fill in the gaps that always arise with a written instrument when you apply that instrument to a multiplicity of situations and practices." App. to Pet. for Cert. 8a, 9a. This ruling was affirmed by a unanimous panel of the Court of Appeals for the Eighth Circuit, 615 F.2d 1194, 1202 (1980), and is not challenged here.9
6
With one judge dissenting, the Court of Appeals also held that the District Court was correct in not addressing the merits of petitioners' FLSA claim. Emphasizing that national labor policy encourages arbitration of labor disputes, the court stated that "wage disputes arising under the FLSA . . . may be the subject of binding arbitration where the collective bargaining agreement so provides . . . at least in situations in which employees knowingly and voluntarily submit their grievances to arbitration under the terms of the agreement." Id., at 1199. Finding that petitioners had voluntarily submitted their grievances to arbitration, the court concluded that they were barred from asserting their statutory wage claim in the subsequently filed federal-court action. Id., at 1199-1200. We granted certiorari, 449 U.S. 819, 101 S.Ct. 70, 66 L.Ed.2d 20 (1980), and reverse.
II
7
Two aspects of national labor policy are in tension in this case. The first, reflected in statutes governing relationships between employers and unions, encourages the negotiation of terms and conditions of employment through the collective-bargaining process. The second, reflected in statutes governing relationships between employers and their individual employees, guarantees covered employees specific substantive rights. A tension arises between these policies when the parties to a collective-bargaining agreement make an employee's entitlement to substantive statutory rights subject to contractual dispute-resolution procedures.
8
The national policy favoring collective bargaining and industrial self-government was first expressed in the National Labor Relations Act of 1935, 29 U.S.C. § 151 et seq. (the Wagner Act). It received further expression and definition in the Labor Management Relations Act, 1947, 29 U.S.C. § 141 et seq. (the Taft-Hartley Act). Predicated on the assumption that individual workers have little, if any, bargaining power, and that "by pooling their economic strength and acting through a labor organization freely chosen by the majority, the employees of an appropriate unit have the most effective means of bargaining for improvements in wages, hours, and working conditions," NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 180, 87 S.Ct. 2001, 2006, 18 L.Ed.2d 1123 (1967), these statutes reflect Congress' determination that to improve the economic well-being of workers, and thus to promote industrial peace, the interests of some employees in a bargaining unit may have to be subordinated to the collective interests of a majority of their co-workers. See Vaca v. Sipes, 386 U.S. 171, 182, 87 S.Ct. 903, 912, 17 L.Ed.2d 842 (1967); 29 U.S.C. § 159(a). The rights established through this system of majority rule are thus
9
"protected not for their own sake but an an instrument of the national labor policy of minimizing industrial strife 'by encouraging the practice and procedure of collective bargaining.' 29 U.S.C. § 151." Emporium Capwell Co. v. Western Addition Community Org., 420 U.S. 50, 62, 95 S.Ct. 977, 984, 43 L.Ed.2d 12 (1975).
10
To further this policy, Congress has declared that
11
"[f]inal adjustment by a method agreed upon by the parties is declared to be the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective-bargaining agreement." 29 U.S.C. § 173(d).
12
Thus, courts ordinarily defer to collectively bargained-dispute resolution procedures when the parties' dispute arises out of the collective-bargaining process. See, e. g., Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 562-563, 96 S.Ct. 1048, 1055-1056, 47 L.Ed.2d 231 (1976); Gateway Coal Co. v. Mine Workers, 414 U.S. 368, 377-380, 94 S.Ct. 629, 636-638, 38 L.Ed.2d 583 (1974); Republic Steel Corp. v. Maddox, 379 U.S. 650, 652-653, 85 S.Ct. 614, 616-617, 13 L.Ed.2d 580 (1965); Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 596, 80 S.Ct. 1358, 1360, 4 L.Ed.2d 1424 (1960); Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 577-578, 582-583, 80 S.Ct. 1347, 1352-1353, 4 L.Ed.2d 1409 (1960); Steelworkers v. American Manufacturing Co., 363 U.S. 564, 566, 568, 80 S.Ct. 1343, 1345, 1346, 4 L.Ed.2d 1403 (1960); Textile Workers v. Lincoln Mills, 353 U.S. 448, 458-459, 77 S.Ct. 923, 922, 1 L.Ed.2d 972 (1957).10
13
Respondents contend that the aspect of national labor policy encouraging collective bargaining and industrial self-government requires affirmance of the Court of Appeals. They note that the collective-bargaining agreement between Arkansas-Best and petitioners' union requires that "any controversy" between the parties to the agreement be resolved through the binding contractual grievance procedures. See n. 5, supra. They further note that Local 878 processed petitioners' grievances in accordance with those procedures, and that the District Court made an unchallenged finding that the union did not breach its duty of fair representation in doing so. Accordingly, they conclude that petitioners should be barred from bringing the statutory component of their wage claim in federal court.11
14
We reject this argument. Not all disputes between an employee and his employer are suited for binding resolution in accordance with the procedures established by collective bargaining. While courts should defer to an arbitral decision where the employee's claim is based on rights arising out of the collective-bargaining agreement, different considerations apply where the employee's claim is based on rights arising out of a statute designed to provide minimum substantive guarantees to individual workers.
15
These considerations were the basis for our decision in Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974). In that case, petitioner, a black employee, had been discharged by respondent employer, allegedly for producing too many defective parts. Claiming that his discharge was racially motivated, petitioner asked his union to pursue the grievance and arbitration procedure set forth in the collective-bargaining agreement. The union did so, relying on the nondiscrimination clause in the collective-bargaining agreement, but the arbitrator found that petitioner had been discharged for just cause. Petitioner then brought an action under Title VII of the Civil Rights Act of 1964 in Federal District Court based on the same facts that were before the arbitrator. The District Court granted summary judgment for the employer, holding that petitioner was bound by the prior adverse arbitral decision. The Court of Appeals affirmed.
16
This Court reversed, concluding that an employee's statutory right to a trial de novo under Title VII is not foreclosed by the prior submission of his discrimination claim to final arbitration under a collective-bargaining agreement. The Court found that in enacting Title VII, Congress had granted individual employees a nonwaivable, public law right to equal employment opportunities that was separate and distinct from the rights created through the "majoritarian processes" of collective bargaining. Id., at 51, 94 S.Ct., at 1021. Moreover, because Congress had granted aggrieved employees access to the courts, and because contractual grievance and arbitration procedures provided an inadequate forum for enforcement of Title VII rights, the Court concluded that Title VII claims should be resolved by the courts de novo.12
17
Respondents would distinguish Gardner-Denver on the ground that because petitioners' FLSA claim is based on a dispute over wages and hours, subjects at the heart of the collective-bargaining process, their claim is particularly well suited to resolution through collectively bargained grievance and arbitration procedures. But this contention misperceives the nature of petitioners' FLSA claim.13
18
The principal congressional purpose in enacting the Fair Labor Standards Act of 1938 was to protect all covered workers from substandard wages and oppressive working hours, "labor conditions [that are] detrimental to the maintenance of the minimum standard of living necessary for health, efficiency and general well-being of workers." 29 U.S.C. § 202(a).14 In contrast to the Labor Management Relations Act, which was designed to minimize industrial strife and to improve working conditions by encouraging employees to promote their interests collectively, the FLSA was designed to give specific minimum protections to individual workers and to ensure that each employee covered by the Act would receive " '[a] fair day's pay for a fair day's work' " and would be protected from "the evil of 'overwork' as well as 'underpay.' " Overnight Motor Transportation Co. v. Missel, 316 U.S. 572, 578, 62 S.Ct. 1216, 1220, 86 L.Ed. 1682 (1942), quoting 81 Cong.Rec. 4983 (1937) (message of President Roosevelt).15
19
The statutory enforcement scheme grants individual employees broad access to the courts. Section 16(b) of the Act, 29 U.S.C. § 216(b), which contains the principal enforcement provisions, permits an aggrieved employee to bring his statutory wage and hour claim "in any Federal or State court of competent jurisdiction." No exhaustion requirement or other procedural barriers are set up, and no other forum for enforcement of statutory rights is referred to or created by the statute.16
20
This Court's decisions interpreting the FLSA have frequently emphasized the nonwaivable nature of an individual employee's right to a minimum wage and to overtime pay under the Act. Thus, we have held that FLSA rights cannot be abridged by contract or otherwise waived because this would "nullify the purposes" of the statute and thwart the legislative policies it was designed to effectuate. Brooklyn Savings Bank v. O'Neil, 324 U.S. 697, 707, 65 S.Ct. 895, 902, 89 L.Ed. 1296 (1945); see D. A. Schulte, Inc. v. Gangi, 328 U.S. 108, 114-116, 66 S.Ct. 925, 928, 929, 90 L.Ed. 1114 (1946); Walling v. Helmerich & Payne, Inc., 323 U.S. 37, 42, 65 S.Ct. 11, 14, 89 L.Ed. 29 (1944); Overnight Motor Transportation Co. v. Missel, supra, at 577, 62 S.Ct., at 1219; see 29 CFR § 785.8 (1974).17 Moreover, we have held that congressionally granted FLSA rights take precedence over conflicting provisions in a collectively bargained compensation arrangement. See, e. g., Martino v. Michigan Window Cleaning Co., 327 U.S. 173, 177-178, 66 S.Ct. 379, 381-382, 90 L.Ed. 603 (1946); Walling v. Harnischfeger Corp., 325 U.S. 427, 430-432, 65 S.Ct. 1246, 1248-1249, 89 L.Ed. 1711 (1945); Jewell Ridge Coal Corp. v. Mine Workers, 325 U.S. 161, 166-167, 170, 65 S.Ct. 1063, 1066-1068, 89 L.Ed. 1534 (1945).18 As we stated in Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 602-603, 64 S.Ct. 698, 705-706, 88 L.Ed. 949 (1944) (footnote omitted):
21
"The Fair Labor Standards Act was not designed to codify or perpetuate [industry] customs and contracts. . . . Congress intended, instead, to achieve a uniform national policy of guaranteeing compensation for all work or employment engaged in by employees covered by the Act. Any custom or contract falling short of that basic policy, like an agreement to pay less than the minimum wage requirements, cannot be utilized to deprive employees of their statutory rights."19
22
There are two reasons why an employee's right to a minimum wage and overtime pay under the FLSA might be lost if submission of his wage claim to arbitration precluded him from later bringing an FLSA suit in federal court. First, even if the employee's claim were meritorious, his union might, without breaching its duty of fair representation, reasonably and in good faith decide not to support the claim vigorously in arbitration. Wage and hour disputes that are subject to arbitration under a collective-bargaining agreement are invariably processed by unions rather than by individual employees. Since a union's objective is to maximize overall compensation of its members, not to ensure that each employee receives the best compensation deal available, cf.Gardner-Denver, 415 U.S., at 58, n. 19, 94 S.Ct., at 1024, n. 19, a union balancing individual and collective interests might validly permit some employees' statutorily granted wage and hour benefits to be sacrificed if an alternative expenditure of resources would result in increased benefits for workers in the bargaining unit as a whole.20
23
Second, even when the union has fairly and fully presented the employee's wage claim, the employee's statutory rights might still not be adequately protected. Because the "specialized competence of arbitrators pertains primarily to the law of the shop, not the law of the land," id., at 57, 94 S.Ct., at 1024; see Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S., at 581-582, 80 S.Ct., at 1352-1353, many arbitrators may not be conversant with the public law considerations underlying the FLSA.21 FLSA claims typically involve complex mixed questions of fact and law—e. g., what constitutes the "regular rate," the "workweek," or "principal" rather than "preliminary or postliminary" activities. These statutory questions must be resolved in light of volumes of legislative history and over four decades of legal interpretation and administrative rulings. Although an arbitrator may be competent to resolve many preliminary factual questions, such as whether the employee "punched in" when he said he did, he may lack the competence to decide the ultimate legal issue whether an employee's right to a minimum wage or to overtime pay under the statute has been violated.22
24
Moreover, even though a particular arbitrator may be competent to interpret and apply statutory law, he may not have the contractual authority to do so. An arbitrator's power is both derived from, and limited by, the collective-bargaining agreement. Gardner-Denver, 415 U.S., at 53, 94 S.Ct., at 1022. He "has no general authority to invoke public laws that conflict with the bargain between the parties." Ibid. His task is limited to construing the meaning of the collective-bargaining agreement so as to effectuate the collective intent of the parties. Accordingly,
25
"[i]f an arbitral decision is based 'solely upon the arbitrator's view of the requirements of enacted legislation,' rather than on an interpretation of the collective-bargaining agreement, the arbitrator has 'exceeded the scope of the submission,' and the award will not be enforced." Ibid., quoting Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S., at 597, 80 S.Ct., at 1361.
26
Because the arbitrator is required to effectuate the intent of the parties, rather than to enforce the statute, he may issue a ruling that is inimical to the public policies underlying the FLSA, thus depriving an employee of protected statutory rights.23
27
Finally, not only are arbitral procedures less protective of individual statutory rights than are judicial procedures, see Gardner-Denver, supra, at 57-58, 94 S.Ct., at 1024-1025, but arbitrators very often are powerless to grant the aggrieved employees as broad a range of relief. Under the FLSA, courts can award actual and liquidated damages, reasonable attorney's fees, and costs. 29 U.S.C. § 216(b). An arbitrator, by contrast, can award only that compensation authorized by the wage provision of the collective-bargaining agreement. He "is confined to interpretation and application of the collective bargaining agreement" and his "award is legitimate only so long as it draws its essence from the collective bargaining agreement." Steelworkers v. Enterprise Wheel & Car Corp., supra, at 597, 80 S.Ct., at 1361. It is most unlikely that he will be authorized to award liquidated damages, costs, or attorney's fees.
III
28
In sum, the FLSA rights petitioners seek to assert in this action are independent of the collective-bargaining process. They devolve on petitioners as individual workers, not as members of a collective organization. They are not waivable. Because Congress intended to give individual employees the right to bring their minimum-wage claims under the FLSA in court, and because these congressionally granted FLSA rights are best protected in a judicial rather than in an arbitral forum, we hold that petitioners' claim is not barred by the prior submission of their grievances to the contractual dispute-resolution procedures. As we stated in Gardner-Denver:
29
"In submitting his grievance to arbitration, an employee seeks to vindicate his contractual right under a collective-bargaining agreement. By contrast, in filing a lawsuit under [the statute], an employee asserts independent statutory rights accorded by Congress. The distinctly separate nature of these contractual and statutory rights is not vitiated merely because both were violated as a result of the same factual occurrence. And certainly no inconsistency results from permitting both rights to be enforced in their respectively appropriate forums." 415 U.S., at 49-50, 94 S.Ct., at 1020-1021.
30
Reversed.
31
Chief Justice BURGER, with whom Justice REHNQUIST joins, dissenting.
32
The Court today moves—rather blithely, so it seems to me, and unnecessarily—in a direction counter to the needs and interests of workers and employers and contrary to the interests of the judicial system. It does so on the theory that this result advances congressional policy, but careful analysis reveals that Congress, if anything, has mandated the contrary. With funds appropriated by Congress, the Executive Branch, through the Department of Justice, and the Judicial Branch have undertaken studies and pilot programs to remove just such routine and relatively modest-sized claims as this from the courts. Today, the Court moves in precisely the opposite direction, ignoring the objectives of Congress, the agreement of the parties, and the common sense of the situation. It moves toward making federal courts small claims courts contrary to the constitutional concept of these courts as having special and limited jurisdiction.
33
* I agree, of course, that the congressionally created right of individual workers to a minimum wage under § 6 of the Fair Labor Standards Act, 29 U.S.C. § 206, may not be waived through a collective-bargaining agreement between an employer and the workers' union or through a direct agreement between an individual worker and the employer. Brooklyn Savings Bank v. O'Neil, 324 U.S. 697, 707, 65 S.Ct. 895, 902, 89 L.Ed. 1296 (1945). I also agree that the Act creates a private cause of action to vindicate the right to a minimum wage. Fair Labor Standards Act § 16, 29 U.S.C. § 216. But it is a different—indeed, a totally different proposition to say that employees and employers may not agree to a means of enforcing the employees' routine wage claims outside the costly, cumbersome judicial process of the federal courts and, specifically, that employees, acting through their union in an arm's-length negotiation with the employer, may not bind themselves—as the petitioners did here—to submit to final and binding arbitration "any controversy that might arise." App. 24, rather than resolve it through litigation in the federal courts. The existence of a right and the provision of a judicial forum do not necessarily make either nonwaivable; if that were so, all the holdings of this Court and countless decisions of federal and state courts that parties are bound by contracts to arbitrate are placed in doubt. "[T]he question of whether the statutory right may be waived depends upon the intention of Congress as manifested in the particular statute." Brooklyn Savings Bank v. O'Neil, supra, at 705, 65 S.Ct., at 901.
34
Unfortunately, neither the parties nor the United States as amicus curiae can point to a clear answer to this question in the legislative history of the Fair Labor Standards Act. It is hornbook law, however, that there is a strong congressional policy favoring grievance procedures and arbitration as a method of resolving labor disputes. See Labor Management Relations Act, §§ 201(b), 203(d), 29 U.S.C. §§ 171(b), 173(d); Norris-LaGuardia Act, § 8, 29 U.S.C. § 108. This Court has acknowledged that policy in the past. See, e. g., Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 578, and n. 4, 80 S.Ct. 1347, 1350, and n. 4, 4 L.Ed.2d 1409 (1960); Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 596, 80 S.Ct. 1358, 1360, 4 L.Ed.2d 1424 (1960); Textile Workers v. Lincoln Mills, 353 U.S. 448, 458-459, 77 S.Ct. 923, 918-919, 1 L.Ed.2d 972 (1957). The Court today pays lipservice to that congressional policy, ante, at 734-736, but then—paradoxically—ignores it.
35
The reasons for favoring arbitration are as wise as they are obvious: litigation is costly and time consuming, and, more to the point in this case, judges are less adapted to the nuances of the disputes that typically arise in shops and factories than shop stewards, business agents, managerial supervisors, and the traditional ad hoc panels of factfinders. See, e. g., v. Warrior & Gulf Navigation Co., supra, at 581-582, 80 S.Ct., at 1352-1353. By bringing together persons actually involved in the workplace, often assisted by a neutral arbitrator experienced in such matters, disputes are resolved more swiftly and cheaply. This mechanism promotes industrial harmony and avoids strikes and conflicts; it provides a swift, fair, and inexpensive remedy.
36
The policy of favoring extrajudicial methods of resolving disputes is reflected in other areas as well. With federal courts flooded by litigation increasing in volume, in length, and in a variety of novel forms,1 the National Institute of Justice, under the leadership of Attorney General Griffin Bell, in 1979 launched a multimillion-dollar program of field studies to test whether mediation at a neighborhood level could resolve small disputes out of courts in a fashion satisfactory to the parties. Neighborhood Justice Centers Field Test: Final Evaluation Report 7-8 (1980). The results of this study—and other similar studies financed by private sources2—confirmed what many had long suspected: small disputes may be resolved more swiftly and to the satisfaction of the parties without employing the cumbersome, time-consuming, and expensive processes of litigation.3 The National Institute of Justice recommended further study and implementation of similar procedures. Neighborhood Justice Centers Field Test, supra, at 108-109. Congress itself has recognized this problem and authorized such studies. Dispute Resolution Act, 94 Stat. 17.
II
37
By rejecting binding arbitration for resolution of this relatively simple wage claim arising under the Fair Labor Standards Act, the Court thereby rejects as well a policy Congress has followed for at least half a century throughout the field of labor relations and now being applied in other areas as well. To reach that strange result, the Court relies on our holding in Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974). But that case in no sense compels today's holding. The congressionally created right under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., was aimed at guaranteeing a workplace free from discrimination, racial and otherwise. That fundamental right is not and should not be subject to waiver by a collective-bargaining agreement negotiated by a union. But there obviously is a vast difference between resolving allegations of discrimination under the Civil Rights Act and settling a relatively typical and simple wage dispute such as we have here when the parties have expressly agreed to resolve such grievances by arbitration.
38
The long history of union discrimination against minorities and women, now happily receding,4 led Congress to forbid discrimination by unions as well as employers. See 42 U.S.C. § 2003e-2(c). Against a background of union discrimination, Congress was aware that, in the context of claims under the Civil Rights Act, unions sometimes had been the adversary of workers. Plainly, it would not comport with the congressional objectives behind a statute seeking to enforce civil rights protected by Title VII to allow the very forces that had practiced discrimination to contract away the right to enforce civil rights in the courts. For federal courts to defer to arbitral decisions reached by the same combination of forces that had long perpetuated invidious discrimination would have made the foxes guardians of the chickens. But this case is not a discrimination case.
39
Even beyond the historical fact of union discrimination, we observed in Gardner-Denver that arbitrators are not likely to have the needed experience to deal with the special issues arising under the Civil Rights Act, a statute "whose broad language frequently can be given meaning only by reference to public law concepts." 415 U.S., at 57, 94 S.Ct., at 1024. Leaving resolution of discrimination claims to persons unfamiliar with the congressional policies behind that statute could have undermined enforcement of fundamental rights Congress intended to protect. But the "tension" seen by the Court in Gardner-Denver, ante, at 734, is simply not present here.
40
A dispute over wages under the Fair Labor Standards Act arises in an entirely different historical and legal context. In that setting, the union and the employee are the traditional allies, united in enforcing wage claims of employees individually as well as collectively. The Court distorts the possibility that union leadership might fail to protect members' interests in a wage dispute. Ante, at 742. If this rare exception arose, protection of the employee is abundantly available by way of the cause of action for breach of the union's duty of fair representation. See Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967).5
41
Despite the Court's contrary view, ante, at 743-744, whether the time spent in the driver's inspection of a vehicle before taking to the road, as required by federal law, and in transportation of the vehicle to a repair facility when necessary constituted "compensable time" under "Federal Wage Laws," App. 21 (petitioner Barrentine's grievance), is a factual question well suited for disposition by grievance processes and arbitration. The following factors are relevant:
42
(a) the vehicle inspection was mandated, not by the employer, but by a federal regulation, 49 CFR § 392.7 (1980);
43
(b) the regulation places the responsibility to inspect the vehicle on the driver directly;
44
(c) the inspection is intended primarily for the benefit of the public;
45
(d) the petitioners' claim is one for wages; and
46
(e) the bargaining over wages, which produced a rate well above the statutory minimum wage, presumably took into account the time spent by drivers in complying with federal requirements.
47
This elementary wage dispute falls well within the scope of traditional arbitration as it exists under countless collective-bargaining agreements, which the Court now channels into the federal courts. For years the labor movement has developed panels of persons acceptable to both sides who are familiar with "the law of the shop . . . [and] the demands and norms of industrial relations." Alexander v. Gardner-Denver Co., supra, 415 U.S., at 57, 94 S.Ct., at 1024. The Court's generalizations about the powers of arbitrators, ante, at 744-745, are irrelevant; arbitrators have whatever power the parties confer upon them. Here, that power extends to "any controversy that might arise," App. 24 (emphasis added). Surely a wage claim is covered.
48
Allowing one party to such an elementary industrial dispute unilaterally to resort to the federal courts when an established, simplified, less costly procedure is available—and desired, as here, by the employer and the employee's union—can only increase costs and consume judicial time unnecessarily. It makes neither good sense nor sound law to read the broad language of Gardner-Denver—written in a civil rights discrimination case—to govern a routine wage dispute over a matter traditionally entrusted by the parties' arm's-length bargaining to binding arbitration.
III
49
The Court seems unaware that people's patience with the judicial process is wearing thin. Its holding runs counter to every study and every exhortation of the Judiciary, the Executive, and the Congress urging the establishment of reasonable mechanisms to keep matters of this kind out of the courts. See The Pound Conference: Perspectives on Justice in the Future passim (West Pub. Co. 1979); American Bar Assn., Report on the National Conference on Minor Disputes Resolution passim (1978). The Federal Government, as I noted earlier, has spent millions of dollars in pilot programs experimenting in extrajudicial procedures for simpler mechanisms to resolve disputes. Approving an extrajudicial resolution procedure "is not a question of first-class or second-class . . . means. It is a matter of tailoring the means to the problem that is involved." Resolution of Minor Disputes, Joint Hearings before the Subcommittee on Courts, Civil Liberties, and the Administration of Justice. House Committee on the Judiciary, and Subcommittee on Consumer Protection and Finance, House Committee on Interstate and Foreign Commerce, 96th Cong., 1st Sess., 28 (1979) (testimony of Assistant Attorney General Meador). This Court ought not be oblivious to desperately needed changes to keep the federal courts from being inundated with disputes of a kind that can be handled more swiftly and more cheaply by other methods.
1
Upon arriving at the terminal to begin a trip, an Arkansas-Best driver must "punch in" on a timeclock and perform certain preliminary office work. He is compensated for this time at an hourly rate. After completing this work, the driver must "punch out," locate his vehicle, and conduct the required pretrip safety inspection. If the vehicle passes inspection, the driver proceeds on his trip and is paid at the driving time rate. No claim is made for the pretrip inspection time in these circumstances. If the vehicle does not pass inspection, the driver must take the truck to Arkansas-Best's repair facility and "punch in" on a second timeclock. The approximately 15-30 minutes that elapse between the first "punch out" and the second "punch in" are not compensated and are the subject of petitioners' claim.
2
The second driver, J. N. Scates, is no longer a party to this litigation.
3
Article 50 states in part:
"All employees covered by this Agreement shall be paid for all time spent in the service of the Employer. Rates of pay provided for by this Agreement shall be minimums. Time shall be computed from the time that the employee is ordered to report for work and registers in and until the time he is effectively released from duty. Such payment for employee's time when not driving shall be the hourly rate." App. 27.
4
Respondents contend that the grievances presented a claim under the FLSA in addition to the claim under the collective-bargaining agreement. See id., at 21. Although neither the District Court nor the Court of Appeals addressed this contention, Judge Heaney, dissenting from the opinion of the Court of Appeals, concluded that petitioners had "no intent to submit the FLSA claim to arbitration and it was not submitted to arbitration." 615 F.2d 1194, 1203 (CA8 1980). Because we hold that petitioners would not be precluded from bringing their action in federal court in either case, we need not resolve this factual dispute.
5
Article 44 states in part:
"The Unions and the employers agree that there shall be no strikes, lockouts, tieups, or legal proceedings without first using all possible means of settlement as provided for in this Agreement and in the National Agreement, if applicable, of any controversy which might arise. Disputes shall first be taken up between the Employer and the Local Union involved. Failing adjustment by these parties, the following procedure shall then apply:
"(a) Where a State or Multiple State Committee, by a majority vote, settles a dispute no appeal may be taken to the Southern Conference Area Grievance Committee. Such decision will be final and binding on both parties." App. 24-25.
6
Plaintiffs included Barrentine, Scates, three drivers whose claims were later dismissed for failure to answer interrogatories, and four other drivers. Although these last four drivers never formally submitted grievances to the joint committee, the District Court refused to dismiss their complaints for failure to exhaust internal grievance and arbitration procedures, concluding that resort to those procedures would have been futile in light of the joint committee's denial of Barrentine's grievance. The District Court thus "treat[ed] the case as though each of the named plaintiffs had actually filed grievances which were considered and denied." App. to Pet. for Cert. 6a. The District Court's treatment of those claims was not challenged on appeal. 615 F.2d, at 1197, n. 3. Because our holding does not depend on whether petitioners formally filed grievances, we need not address the correctness of the District Court's approach to the exhaustion issue.
7
Petitioners principally relied upon § 6(a) of the FLSA, 52 Stat. 1062, as amended, 29 U.S.C. § 206(a), which provides:
"Every employer shall pay to each of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, . . . wages at the following rates: . . ."
Alternatively, they relied upon § 4 of the Portal-to-Portal Act of 1947 amendments to the FLSA, 61 Stat. 86, 29 U.S.C. § 254, which provides:
"(a) Except as provided in subsection (b) of this section, no employer shall be subject to any liability or punishment under the Fair Labor Standards Act of 1938, as amended, . . . on account of the failure of such employer to pay an employee minimum wages, . . . for or on account of any of the following activities. . . .
"(1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and
"(2) activities which are preliminary to or postliminary to said principal activity or activities, which occur . . . prior to the time on any particular workday at which such employee commences . . . such principal activity or activities.
"(b) Notwithstanding the provisions of subsection (a) of this section which relieve an employer from liability and punishment with respect to an activity, the employer shall not be so relieved if such activity is compensable by either—
"(1) an express provision of a written or nonwritten contract in effect, at the time of such activity, between such employee, his agent, or collective-bargaining representative and his employer; or
"(2) a custom or practice in effect, at the time of such activity, at the establishment or other place where such employee is employed, covering such activity, not inconsistent with a written or nonwritten contract, in effect at the time of such activity, between such employee, his agent, or collective-bargaining representative and his employer."
See App. 3-7.
8
Section 16(b) of the Act, 52 Stat. 1069, as amended, 29 U.S.C. § 216(b), provides:
"Any employer who violates the [minimum wage] provisions . . . of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, . . . and in an additional equal amount as liquidated damages. . . . The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the action."
9
The District Court also noted that petitioners' collective-bargaining agreement, if read literally, would require compensation for the time in question, since "[t]here is no question that the driver when [inspecting the vehicle] is on the employer's business." App. to Pet. for Cert. 4a. Nonetheless, because it found no breach of the duty of fair representation, the court was obliged to let the decision of the joint committee stand with respect to the contractual claim. The Court of Appeals agreed with this conclusion, and also noted that the literal terms of the collective-bargaining agreement appeared to cover the disputed time. 615 F.2d, at 1198.
10
As we stated in Vaca v. Sipes, 386 U.S. 171, 184, 87 S.Ct. 903, 913, 17 L.Ed.2d 842 (1967), when an employee's claim "is based upon breach of the collective bargaining agreement, he is bound by terms of that agreement which govern the manner in which contractual rights may be enforced." Only if the arbitration process has been tainted, e. g., by the union's breach of its duty of fair representation, may the employee pursue his grievance in the courts. Hines v. Anchor Motor Freight, Inc., 424 U.S., at 567, 96 S.Ct., at 1057; Vaca v. Sipes, supra, at 186, 87 S.Ct., at 914.
11
As an alternative ground in support of affirmance, respondents assert that petitioners' claims should be barred because petitioners failed to comply with 29 U.S.C. § 216(b), which provides:
"No employee shall be a party plaintiff to any [FLSA enforcement action] unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought."
Even if this requirement were to apply to petitioners' suit, a nonclass action, it was satisfied when petitioners individually signed at least two sets of interrogatories.
12
Cf. U. S. Bulk Carriers, Inc. v. Arguelles, 400 U.S. 351, 357, 91 S.Ct. 409, 412, 27 L.Ed.2d 456 (1971) (seaman may assert wage claim in federal court under the Seaman's Wage Act, 46 U.S.C. § 596, even though he had not previously pursued arbitral remedies provided by contractual grievance procedures); McKinney v. Missouri-Kansas-Texas R. Co., 357 U.S. 265, 268-270, 78 S.Ct. 1222, 1224, 1225, 2 L.Ed.2d 1305 (1958) (employee returning from military service need not pursue grievance and arbitration procedure prior to asserting seniority rights in federal court under Universal Military Training and Service Act).
13
There are three components to petitioners' FLSA claim. First, they contend that the pre-trip inspection and transportation time is compensable under § 6 of the FLSA, 29 U.S.C. § 206, because it constitutes "principal" rather than "preliminary" activity under § 4 of the Portal-to-Portal Act amendments, 29 U.S.C. § 254. See Steiner v. Mitchell, 350 U.S. 247, 76 S.Ct. 330, 100 L.Ed. 267 (1956). Second, they contend that even if it is preliminary activity, it is compensable under § 4(b)(1) of the Portal-to-Portal Act amendments, 29 U.S.C. § 254(b)(1), because it constitutes "time spent in the service of the Employer" under Art. 50 of the collective-bargaining agreement. Third, they contend that even if it is preliminary activity, and even if it is not compensable under "an express provision of a written [collective bargaining agreement]," 29 U.S.C. § 254(b)(1), it is compensable under § 4(b)(2) of the Portal-to-Portal Act amendments, 29 U.S.C. § 254(b)(2), because there is "a custom or practice in effect" between Arkansas-Best and drivers in other terminals whereby those drivers are compensated for their pretrip inspection and transportation time.
The threshold question in this action, then, is whether petitioners were engaged in "activities which are preliminary to [their] principal activity," 29 U.S.C. § 254(a)(2), when they conducted the pretrip safety inspections of their vehicles. Resolution of that question requires inquiry into whether the inspection and transportation procedures "are an integral and indispensable part of the principal activities for which [petitioners] are employed." Steiner v. Mitchell, supra, at 256, 76 S.Ct., at 335 (changing clothes and showering are "principal" activities of employees working with dangerously caustic and toxic materials); see Mitchell v. King Packing Co., 350 U.S. 260, 263, 76 S.Ct. 337, 339, 100 L.Ed. 282 (1956) (knife sharpening is "principal" activity of butchers in meatpacking plant); 29 CFR §§ 790.7, 790.8 (1980). For the reasons that follow, we conclude that this is a question of statutory construction that must be resolved by the courts.
14
Congress enacted the FLSA under its commerce power, having found that the existence of such "detrimental" labor conditions would endanger national health and efficiency and consequently would interfere with the free movement of goods in interstate commerce. See United States v. Darby, 312 U.S. 100, 109-110, 61 S.Ct. 451, 454-455, 85 L.Ed. 609 (1941); 29 U.S.C. § 202(a).
15
In mandatory language, Congress provided in § 6(a) of the Act, 29 U.S.C. § 206(a), that "[e]very employer shall pay to each of his employees . . . wages at the following rates. . . ." It provided in § 7(a)(2) of the Act, 29 U.S.C. § 207(a)(2), that "no employer shall employ any of his employees . . . for a workweek longer than forty hours . . . unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed."
16
To encourage employees to enforce their FLSA rights in court, and thus to further the public policies underlying the FLSA, see Brooklyn Savings Bank v. O'Neil, 324 U.S. 697, 709, 65 S.Ct. 895, 903, 89 L.Ed. 1296 (1945), Congress has permitted individual employees to sue for back wages and liquidated damages and to receive reasonable attorney's fees and costs. 29 U.S.C. § 216(b). In addition, Congress has empowered the Secretary of Labor to bring judicial enforcement actions under the Act. 29 U.S.C. §§ 216(c), 217.
17
But see 29 U.S.C. § 216(c).
18
"[N]othing to our knowledge in any act authorizes us to give decisive weight to contract declarations as to the regular rate because they are the result of collective bargaining." Bay Ridge Operating Co. v. Aaron, 334 U.S. 446, 463, 68 S.Ct. 1186, 1195, 92 L.Ed. 1502 (1948). "[E]mployees are not to be deprived of the benefits of the Act simply because they are well paid or because they are represented by strong bargaining agents." Jewell Ridge Coal Corp., 325 U.S., at 167, 65 S.Ct., at 1066.
19
It is true that the FLSA, as amended, includes a number of references to collective-bargaining agreements. See Tennessee Coal, Iron & R. Co. v. Muscode Local No. 123, 321 U.S., at 602, n. 18, 64 S.Ct., at 705, n. 18. Sections 7(b)(1) and (2) of the FLSA, 29 U.S.C. §§ 207(b)(1) and (2), state that an employer need not pay overtime under the Act for an employee's performance of work in excess of the statutory maximum, if the employee is employed "in pursuance of an agreement [containing alternative maximum hours provisions] made as a result of collective bargaining by representatives of employees certified as bona fide by the National Labor Relations Board." Section 3(o) of the Portal-to-Portal Act amendments, 29 U.S.C. § 203(o), excludes from the definition of "hours worked" under §§ 6 and 7 of the FLSA, "any time spent in changing clothes or washing at the beginning or end of each workday" if that time was noncompensable "under a bona fide collective-bargaining agreement." And § 4(a)(2) of that Act, 29 U.S.C. § 254(a)(2), which excludes from compensable time "preliminary" or "postliminary" working activities, requires compensation under the minimum wage provisions if a collective-bargaining agreement in effect between the employer and the employee's union makes that time compensable. See also 29 U.S.C. § 207(e)(7), (f). Where plaintiff's claim depends upon application of one of these exceptions, we assume without deciding that a court should defer to a prior arbitral decision construing the relevant provisions of the collective-bargaining agreement. In this case, however, petitioners' threshold claim does not depend upon application of any of those exceptions. The contention that petitioners were engaged in compensable "principal" activity when conducting the pretrip safety inspections is a claim that arises wholly independently of the collective-bargaining agreement. Accordingly, deference to the prior arbitral decision in this case would be inappropriate. See n. 13, supra.
20
Cf. Humphrey v. Moore, 375 U.S. 335, 349, 84 S.Ct. 363, 371, 11 L.Ed.2d 370 (1964) ("we are not ready to find a breach of the collective bargaining agent's duty of fair representation in taking a good faith position contrary to that of some individuals whom it represents nor in supporting the position of one group of employees against that of another"); Ford Motor Co. v. Huffman, 345 U.S. 330, 337-339, 73 S.Ct. 681, 685-687, 97 L.Ed. 1048 (1953).
21
We have noted that "a substantial proportion of labor arbitrators are not lawyers," Gardner-Denver, 415 U.S., at 57, n. 18, 94 S.Ct., at 1024, n. 18; see also Bernhardt v. Polygraphic Co., 350 U.S. 198, 203, 76 S.Ct. 273, 276, 100 L.Ed. 199 (1956), and this is particularly true with respect to most members of joint grievance committees, who are drawn from the ranks of management and union leadership.
22
We do not hold that an arbitral decision has no evidentiary bearing on a subsequent FLSA action in court. As we decided in Gardner-Denver, such a decision may be admitted into evidence, but
"[w]e adopt no standards as to the weight to be accorded an arbitral decision, since this must be determined in the court's discretion with regard to the facts and circumstances of each case. Relevant factors include the existence of provisions in the collective bargaining agreement that conform substantially with [the statute], the degree of procedural fairness in the arbitral forum, adequacy of the record with respect to the issue of discrimination, and the special competence of particular arbitrators. Where an arbitral determination gives full consideration to an employee's [statutory] rights, a court may properly accord it great weight. This is especially true where the issue is solely one of fact, specifically addressed by the parties and decided by the arbitrator on the basis of an adequate record. . . ." 415 U.S., at 60, n. 21, 94 S.Ct., at 1025, n. 21.
See also n. 19, supra.
23
Even where the crucial provision in the collective-bargaining agreement incorporates the statutory language, as in Gardner-Denver, "the arbitrator has authority to resolve only questions of contractual rights, and this authority remains regardless of whether certain contractual rights are similar to, or duplicative of, the substantive rights secured by [the statute]." 415 U.S., at 53-54, 94 S.Ct., at 1022-1023.
1
Civil filings in fiscal year 1960 were 59,284; in 1980 they were 168,789, an increase of 184.7%. Even with the increases in numbers of judges, the number of cases per judge has risen 35.1%, from 242 to 327. Annual Report of the Director, Administrative Office of U.S. Courts 3 (1980). During this same period, the number of appeals docketed in the Courts of Appeals rose from 3,899 to 23,200, 495.0%, and the caseload per panel increased from 172 to 527, or 206.4%. Id., at 1.
2
See Dispute Resolution, 88 Yale L. J. 905 (1979). In 1976 the Judicial Conference of the United States joined with the Conference of Chief Justices and the American Bar Association to sponsor a conference to search for ways of improving justice, with emphasis on alternative means of resolving disputes. See The Pound Conference: Perspectives on Justice in the Future (West Pub. Co. 1979).
3
Of 3,947 "cases"—i. e., matters—voluntarily referred to these centers in the three study cities (Atlanta, Kansas City, and Los Angeles), 45% were resolved in some form, either through a hearing or simply by placing the parties in contact with each other. Neighborhood Justice Centers Field Test: Final Evaluation Report 26 (1980). Resolution came within a matter of days or weeks. Ibid. Interviews were conducted with one or both disputants in 63% of the mediated cases six months later. For both complainants and respondents, 88% were satisfied with the experience; 80% of complainants and 83% of respondents were satisfied with the agreement reached. In addition, over two-thirds felt that the adverse party had kept the bargain, and fewer than 30% felt that additional problems had arisen. Id., at 45-50.
4
See, e. g., Steelworkers v. Weber, 443 U.S. 193, 198, and n. 1, 99 S.Ct. 2721, 2725, and n. 1, 61 L.Ed.2d 480 (1979), and sources cited therein; id., at 218, 99 S.Ct., at 2735 (BURGER, C. J., dissenting).
5
Indeed, count 2 of the petitioners' complaint alleged that respondent Local 878 had breached its duty of fair representation. App. 7. The District Court expressly rejected that claim in its oral ruling, App. to Pet. for Cert. 12a, even though it found some evidence of a side agreement between Local 878 and the employer, id., at 8a-11a. The petitioners have not challenged the findings of fact, and the Court of Appeals held they were not clearly erroneous. 615 F.2d 1194, 1202 (CA8 1980).
| 67
|
450 U.S. 785
101 S.Ct. 1468
67 L.Ed.2d 685
Richard SCHWEIKER, Secretary of Health and Human Servicesv.Ann HANSEN.
No. 80-1162.
April 6, 1981.
Rehearing Denied May 26, 1981.
See 451 U.S. 1032, 101 S.Ct. 3023.
PER CURIAM.
1
On June 12, 1974, respondent met for about 15 minutes with Don Connelly, a field representative of the Social Security Administration (SSA), and orally inquired of him whether she was eligible for "mother's insurance benefits" under § 202(g) of the Social Security Act (Act), 64 Stat. 485, as amended, 42 U.S.C. § 402(g). Connelly erroneously told her that she was not, and she left the SSA office without having filed a written application. By the Act's terms, such benefits are available only to one who, among other qualifications, "has filed application." 42 U.S.C. § 402(g)(1)(D). By a regulation promulgated pursuant to the Act, only written applications satisfy the "filed application" requirement. 20 CFR § 404.601 (1974).1 The SSA's Claims Manual, and internal Administration handbook, instructs field representatives to advise applicants of the advantages of filing written applications and to recommend to applicants who are uncertain about their eligibility that they file written applications. Connelly, however, did not recommend to respondent that she file a written application; nor did he advise her of the advantages of doing so. The question is whether Connelly's erroneous statement and neglect of the Claims Manual estop petitioner, the Secretary of Health and Human Services, from denying retroactive benefits to respondent for a period in which she was eligible for benefits but had not filed a written application.
2
Respondent eventually filed a written application after learning in May 1975 that in fact she was eligible. She then began receiving benefits. Pursuant to § 202(j)(1) of the Act,2 she also received retroactive benefits for the preceding 12 months, which was the maximum retroactive benefit allowed by the Act. Respondent contended, however, that she should receive retroactive benefits for the 12 months preceding her June 1974 interview with Connelly. An Administrative Law Judge rejected this claim, concluding that Connelly's erroneous statement and neglect of the Claims Manual did not estop petitioner from determining respondent's eligibility for benefits only as of the date of respondent's written application. The Social Security Appeals Council affirmed.
3
Respondent then brought this lawsuit in the District Court for the District of Vermont,3 which held that the written-application requirement was "unreasonably restrictive" as applied to the facts of this case. A divided panel of the Court of Appeals for the Second Circuit affirmed. 619 F.2d 942 (1980). It agreed with petitioner as an initial matter that the regulation requiring a written application is valid and that the Claims Manual has no legally binding effect. But it considered the written-application requirement a mere "procedural requirement" of lesser import than the fact that respondent in June 1974 had been "substantively eligible" for the benefits. Id., at 948. In such circumstances, the majority held, "misinformation provided by a Government official combined with a showing of misconduct (even if it does not rise to the level of a violation of a legally binding rule) should be sufficient to require estoppel." Ibid. In summarizing its holding, the majority stated that the Government may be estopped "where (a) a procedural not a substantive requirement is involved and (b) an internal procedural manual or guide or some other source of objective standards of conduct exists and supports an inference of misconduct by a Government employee." Id., at 949.
4
Judge Friendly dissented. He argued that the majority's conclusion is irreconcilable with decisions of this Court, e. g., Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380, 68 S.Ct. 1, 92 L.Ed. 10 (1947); Montana v. Kennedy, 366 U.S. 308, 81 S.Ct. 1336, 6 L.Ed.2d 313 (1961); INS v. Hibi, 414 U.S. 5, 94 S.Ct. 19, 38 L.Ed.2d 7 (1973) (per curiam ), and with decisions of other Courts of Appeals, Leimbach v. Califano, 596 F.2d 300 (CA8 1979); Cheers v. Secretary of HEW, 610 F.2d 463 (CA7 1979).
5
We agree with the dissent. This Court has never decided what type of conduct by a Government employee will estop the Government from insisting upon compliance with valid regulations governing the distribution of welfare benefits. In two cases involving denial of citizenship, the Court has declined to decide whether even "affirmative misconduct" would estop the Government from denying citizenship, for in neither case was "affirmative misconduct" involved. INS v. Hibi, supra, at 8-9, 94 S.Ct., at 21-22; Montana v. Kennedy, supra, at 314-315, 81 S.Ct., at 1340-1341. The Court has recognized, however, "the duty of all courts to observe the conditions defined by Congress for charging the public treasury." Federal Crop Insurance Corp. v. Merrill, supra, at 385, 68 S.Ct., at 3. Lower federal courts have recognized that duty also, and consistently have relied on Merrill in refusing to estop the Government where an eligible applicant has lost Social Security benefits because of possibly erroneous replies to oral inquiries. See Leimbach v. Califano, supra, at 304-305; Cheers v. Secretary of HEW, supra, at 468-469; Goldberg v. Weinberger, 546 F.2d 477, 481 (CA2 1976), cert. denied, 431 U.S. 937, 97 S.Ct. 2648, 53 L.Ed.2d 255 (1977); Simon v. Califano, 593 F.2d 121, 123 (CA9 1979); Parker v. Finch, 327 F.Supp. 193, 195 (ND Ga. 1971); Flamm v. Ribicoff, 203 F.Supp. 507, 510 (SDNY 1961). This is another in that line of cases,4 for we are convinced that Connelly's conduct—which the majority conceded to be less than "affirmative misconduct," 619 F.2d, at 948—does not justify the abnegation of that duty.
6
Connelly erred in telling respondent that she was ineligible for the benefit she sought. It may be that Connelly erred because he was unfamiliar with a recent amendment which afforded benefits to respondent. Id., at 947. Or it may be that respondent gave Connelly too little information for him to know that he was in error. Id., at 955 (Friendly, J., dissenting). But at worst, Connelly's conduct did not cause respondent to take action, cf. Federal Crop Insurance Corp. v. Merrill, supra, or fail to take action, cf. Montana v. Kennedy, supra, that respondent could not correct at any time.
7
Similarly, there is no doubt that Connelly failed to follow the Claims Manual in neglecting to recommend that respondent file a written application and in neglecting to advise her of the advantages of a written application. But the Claims Manual is not a regulation. It has no legal force, and it does not bind the SSA. Rather, it is a 13-volume handbook for internal use by thousands of SSA employees, including the hundreds of employees who receive untold numbers of oral inquiries like respondent's each year. If Connelly's minor breach of such a manual suffices to estop petitioner, then the Government is put "at risk that every alleged failure by an agent to follow instructions to the last detail in one of a thousand cases will deprive it of the benefit of the written application requirement which experience has taught to be essential to the honest and effective administration of the Social Security Laws." 619 F.2d, at 956 (Friendly, J., dissenting). See United States v. Caceres, 440 U.S. 741, 755-756, 99 S.Ct. 1465, 1473-1474, 59 L.Ed.2d 733 (1979).5
8
Finally, the majority's distinction between respondent's "substantiv[e] eligib[ility]" and her failure to satisfy a "procedural requirement" does not justify estopping petitioner in this case. Congress expressly provided in the Act that only one who "has filed application" for benefits may receive them, and it delegated to petitioner the task of providing by regulation the requisite manner of application. A court is no more authorized to overlook the valid regulation requiring that applications be in writing than it is to overlook any other valid requirement for the receipt of benefits.
9
In sum, Connelly's errors "fal[l] far short" of conduct which would raise a serious question whether petitioner is estopped from insisting upon compliance with the valid regulation. Montana v. Kennedy, supra, at 314, 81 S.Ct., at 1340. Accordingly, we grant the motion of respondent for leave to proceed in- forma pauperis and the petition for certiorari and reverse the judgment of the Court of Appeals.
10
It is so ordered.
11
Justice MARSHALL, with whom Justice BRENNAN, joins, dissenting.
12
A summary reversal is a rare disposition, usually reserved by this Court for situations in which the law is settled and stable, the facts are not in dispute, and the decision below is clearly in error. Because this is not such a case, I dissent from the majority's summary reversal of the judgment of the Court of Appeals, and would instead grant the petition and set the case for plenary consideration.
13
The issue here is important, not only in economic terms to respondent Hansen, but in constitutional terms as well. The question of when the Government may be equitably estopped has divided the distinguished panel of the Court of Appeals in this case, has received inconsistent treatment from other Courts of Appeals, and has been the subject of considerable ferment. See, e. g., Corniel-Rodriquez v. INS, 532 F.2d 301 (CA2 1976); United States v. Lazy FC Ranch, 481 F.2d 985 (CA9 1973); United States v. Fox Lake State Bank, 366 F.2d 962 (CA7 1966); Walsonavich v. United States, 335 F.2d 96 (CA3 1964); Simmons v. United States, 308 F.2d 938 (CA5 1962); Semaan v. Mumford, 118 U.S.App.D.C. 282, 335 F.2d 704 (1964); Eichelberger v. Commissioner of Internal Revenue, 88 F.2d 874 (CA5 1937). See generally K. Davis, Administrative Law of the Seventies § 17.01 (1976); Note, Equitable Estoppel of the Government, 79 Colum.L.Rev. 551 (1979). Indeed, the majority today recognizes that "[t]his Court has never decided what type of conduct by a Government employee will estop the Government from insisting upon compliance with valid regulations governing the distribution of welfare benefits." Ante, at 788. The majority goes on to suggest that estoppel may be justified in some circumstances. Yet rather than address the issue in a comprehensive fashion, the Court simply concludes that this is not such a case.1 The apparent message of today's decision—that we will know an estoppel when we see one—provides inadequate guidance to the lower courts in an area of the law that, contrary to the majority's view, is far from settled.
14
Indeed, the majority's attempt to distinguish conflicting decisions of other courts itself demonstrates the impropriety of today's summary disposition. The majority declines to "consider the correctness of these cases" and instead simply notes that they are distinguishable on their facts from the present case. Ante, at 789, n. 4. Yet the majority fails to explain why or how these purported factual distinctions affect the legal question of when the Government may be equitably estopped. Thus, the lower courts are left guessing whether the factual differences cited by the majority are of any real consequence. For example, the majority distinguishes Semaan v. Mumford, supra, on the ground that "estoppel did not threaten the public fisc." Ante, at 789, n. 4. Even accepting this characterization as correct,2 I am unable to discern from the majority's opinion why the rules governing estoppel should differ depending on whether the party asserting an estoppel seeks monetary benefits from the Government instead of some other form of Governmental action or inaction. Similarly, the majority distinguishes United States v. Fox Lake State Bank, supra, on the ground it involved a claim of estoppel by "a bank [that] had erred in certain applications because it had to file before the Government would provide it with necessary information." Ante, at 789, n. 4. I trust that the majority does not intend to suggest that a claim of estoppel is more likely to prevail when raised by a bank rather than by a person eligible for Social Security benefits, but I do not believe that the majority's other basis for distinguishing that case—that the Government failed to provide the information necessary to file correct applications—is substantively different from the Government's failure in this case to supply respondent with correct information when she sought to apply for benefits. The third distinction offered by the majority—one that apparently differentiates between written statements by the Government and oral ones—might be relevant to the proof of the Government's conduct in some cases. However, estoppel against the Government has not been restricted in the past to written misrepresentations, see, e. g., Simmons v. United States, supra, and today's decision leaves unclear whether or when such a limitation will apply in the future. Thus, I believe that the majority, in its haste to reverse the judgment of the Court of Appeals, has simply added confusion to an already unsettled area by hinting, but not deciding, that various factual nuances may be dispositive of estoppel claims against the Government.
15
Moreover, in summarily reversing the judgment of the Court of Appeals, the majority glosses over the sorts of situations—such as that presented by this case—that have increasingly led courts to conclude that in some cases hard and fast rules against estoppel of the Government are neither fair nor constitutionally required. The majority characterizes Connelly's conduct in this case as little more than an innocent mistake, based possibly on his unfamiliarity with a "recent amendment" rendering respondent eligible for benefits, or possibly, the majority speculates, on respondent's failure to give Connelly sufficient "information . . . to know that he was in error." Ante, at 789. The majority further concludes that this error was essentially harmless, because, in the majority's view, it "did not cause respondent to . . . fail to take action . . . that respondent could not correct at any time." Ibid.
16
While these characterizations certainly facilitate the summary disposition the majority seeks, they do not fit this case. The "recent amendment" had been in effect for a year and a half when respondent was incorrectly informed that she was not eligible. Moreover, it is quite clear that respondent provided Connelly with sufficient information on which to make a correct judgment, had he been so inclined.3 Finally, to conclude that Connelly's incorrect assessment of respondent's eligibility did not cause her to act to her detriment in a manner that she "could not correct at any time" is to blink in the face of the obvious. Connelly, and not respondent, had the legal duty to meet with Social Security applicants and advise them concerning their eligibility for benefits. While not necessarily free of error, such preliminary advice is inevitably accorded great weight by applicants who—like respondent—are totally uneducated in the intricacies of the Social Security laws. Hence, the majority's effort to cast respondent as the architect of her own predicament is wholly unpersuasive. Instead, the fault for respondent's failure to file a timely application for benefits that she was entitled to must rest squarely with the Government, first, because its agent incorrectly advised her that she was ineligible for benefits, and, second, because the same agent breached his duty to encourage to file a written application regardless of his views on her eligibility.
17
In my view, when this sort of governmental misconduct directly causes an individual's failure to comply with a purely procedural requirement established by the agency, it may be sufficient to estop the Government from denying that individual benefits that she is substantively entitled to receive. Indeed, in an analogous situation, we concluded that before an agency "may extinguish the entitlement of . . . otherwise eligible beneficiaries, it must comply, at a minimum, with its own internal procedures." Morton v. Ruiz, 415 U.S. 199, 235, 94 S.Ct. 1055, 1074, 39 L.Ed.2d 270 (1974). At the very least, the question deserves more than the casual treatment it receives from the majority today.
1
This regulation has been recodified and now appears at 20 CFR §§ 404.602-404.614 (1980).
2
This section provides, in pertinent part:
"An individual who would have been entitled to a benefit under subsectio[n] . . . (g) . . . of this section for any month after August 1950 had he filed application therefor prior to the end of such month shall be entitled to such benefit for such month if he files application therefor prior to the end of the twelfth month immediately succeeding such month. . . ." 42 U.S.C. § 402(j)(1).
3
Judicial review of final decisions by the Secretary is authorized by 42 U.S.C. § 405(g).
4
Justice Marshall cites several cases in which federal courts have applied estoppel against the Government. Post, at 791. In some of the cases, the Government had entered into written agreements which supported the claim of estoppel. E. g., United States v. Lazy FC Ranch, 481 F.2d 985, 990 (CA9 1973); Walsonavich v. United States, 335 F.2d 96, 100-101 (CA3 1964). In others, estoppel did not threaten the public fisc as estoppel does here. E. g., Semaan v. Mumford, 118 U.S.App.D.C. 282, 284, and n. 6, 335 F.2d 704, 706, and n. 6 (1964). In another, a bank claiming estoppel had erred in certain applications because it had to file before the Government would provide it with necessary information. United States v. Fox Lake State Bank, 366 F.2d 962 (CA7 1966). We need not consider the correctness of these cases. We do think that they are easily distinguishable from the type of situation presented in this case and the line of cases we rely upon above.
5
The contention was made in Caceres that a violation of an internal IRS regulation concerning electronic eavesdropping should result in exclusion from trial of the evidence obtained by such eavesdropping. In rejecting this contention, we noted that such a per se rule "would take away from the Executive Department the primary responsibility for fashioning the appropriate remedy for the violation of its regulations. But since the content, and indeed the existence, of the regulations would remain within the Executive's sole authority, the result might well be fewer and less protective regulations. In the long run, it is far better to have rules like those contained in the IRS Manual, and to tolerate occasional erroneous administration of the kind displayed by this record, than either to have no rules except those mandated by statute, or to have them framed in a mere precatory form." 440 U.S., at 755-756, 99 S.Ct., at 1473-1474.
1
Ironically, the central case relied on by the majority today, INS v. Hibi, 414 U.S. 5, 94 S.Ct. 19, 38 L.Ed.2d 7 (1973), was also a per curiam decision rendered without the benefit of briefing and oral argument. Moreover, in that case the applicant applied for the sought-after benefit—naturalization—20 years after his substantive eligibility had expired, and the claim of estoppel arose solely from an alleged general failure of the Government to adequately inform noncitizens who served with the Armed Services of the United States during World War II of their possible eligibility for naturalization. Here, in contrast, respondent was eligible for the benefits at the time of her interview with Connelly and the claim of estoppel here arises from Connelly's specific failures to answer correctly her questions concerning eligibility and to encourage her to file an application.
2
In Semaan, the benefit ultimately sought by the party claiming estoppel was reinstatement in the job from which he was discharged. Thus, I believe that the majority errs in claiming that the estoppel "did not threaten the public fisc." Ante, at 789, n. 4.
3
The apparent basis for the majority's speculation that respondent may not have informed Connelly of all the relevant facts is Judge Friendly's assertion, in dissent, that Connelly did not know that respondent's husband had died. This view is wholly implausible. Respondent asked Connelly whether she was eligible for mother's insurance benefits. These benefits are only available to persons whose spouses have died, 42 U.S.C. § 402(g), a fact that must have been known to Connelly. It is clear from the record that Connelly assumed that respondent's husband had died, and instead focused his questions on respondent's marital status at the time of her husband's death, in the mistaken belief that she would be ineligible if she was divorced at that time. Thus, respondent testified before the Administrative Law Judge that Connelly "said I was not [eligible] because I was divorced at the time of my husband's death." App. to Brief in Opposition 2a. (Emphasis added.)
| 12
|
450 U.S. 707
101 S.Ct. 1425
67 L.Ed.2d 624
Eddie C. THOMAS, Petitioner,v.REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION et al.
No. 79-952.
Argued Oct. 7, 1980.
Decided April 6, 1981.
Syllabus
Petitioner, a Jehovah's Witness, was initially hired to work in his employer's roll foundry, which fabricated sheet steel for a variety of industrial uses, but when the foundry was closed he was transferred to a department that fabricated turrets for military tanks. Since all of the employer's remaining departments to which transfer might have been sought were engaged directly in the production of weapons, petitioner asked to be laid off. When that request was denied, he quit, asserting that his religious beliefs prevented him from participating in the production of weapons. He applied for unemployment compensation benefits under the Indiana Employment Security Act, and testified at an administrative hearing that he believed that contributing to the production of arms violated his religion, although he could, in good conscience, engage indirectly in the production of materials that might be used ultimately to fabricate arms. The hearing referee found that petitioner had terminated his employment because of his religious convictions, but held that petitioner was not entitled to benefits because his voluntary termination was not based upon a "good cause [arising] in connection with [his] work," as required by the Indiana statute. Respondent Review Board affirmed, but the Indiana Court of Appeals reversed, holding that the Indiana statute, as applied, improperly burdened petitioner's right to the free exercise of his religion. The Indiana Supreme Court vacated the Court of Appeals' decision and denied petitioner benefits, holding that he had quit voluntarily for personal reasons, his belief being more "personal philosophical choice" than religious belief. The court also concluded that in any event a termination motivated by religion is not for "good cause" objectively related to the work, as required by the Indiana statute, and that denying benefits created only an indirect burden on petitioner's free exercise right, which burden was justified by legitimate state interests.
Held: The State's denial of unemployment compensation benefits to petitioner violated his First Amendment right to free exercise of religion under Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965. Pp. 713-720.
(a) The Indiana Supreme Court improperly relied on the facts that petitioner was "struggling" with his beliefs and that he was not able to "articulate" his belief precisely. Courts should not undertake to dissect religious beliefs on such grounds. The Indiana court also erred in apparently giving significant weight to the fact that another Jehovah's Witness with whom petitioner consulted had no scruples about working on tank turrets. The guarantee of free exercise is not limited to beliefs which are shared by all of the members of a religious sect. The narrow function of a reviewing court in this context is to determine whether there was an appropriate finding that petitioner terminated his work because such work was forbidden by his religion. The record shows that petitioner terminated his employment for religious reasons. Pp. 713-716.
(b) A person may not be compelled to choose between the exercise of a First Amendment right and participation in an otherwise available public program. It is true that the Indiana law does not compel a violation of conscience, but where the state conditions receipt of an important benefit upon conduct prescribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists. While the compulsion may be indirect, the infringement upon free exercise is nonetheless substantial. Pp. 716-718.
(c) The state may justify an inroad on religious liberty by showing that it is the least restrictive means of achieving some compelling state interest. However, when the inquiry is properly narrowed to focus only on the threat to state interests, neither of the purposes urged to sustain the disqualifying provision of the Indiana statute—to avoid the widespread unemployment and consequent burden on the fund resulting if people were permitted to leave jobs for "personal" reasons, and to avoid a detailed probing by employers into job applicants' religious beliefs—is sufficiently compelling to justify the burden upon petitioner's religious liberty. Pp. 718-719.
(d) Payment of benefits to petitioner would not involve the State in fostering a religious faith in violation of the Establishment Clause. The extension of benefits reflects no more than the governmental obligation of neutrality, and does not represent that involvement of religious with secular institutions which it is the object of the Establishment Clause to forestall. Pp. 719-720.
Ind., 391 N.E.2d 1127, reversed.
Blanca Bianchi de la Torre, Gary, Ind., for petitioner.
William E. Daily, Indianapolis, Ind., for respondents.
Chief Justice BURGER delivered the opinion of the Court.
1
We granted certiorari to consider whether the State's denial of unemployment compensation benefits to the petitioner, a Jehovah's Witness who terminated his job because his religious beliefs forbade participation in the production of armaments, constituted a violation of his First Amendment right to free exercise of religion. 444 U.S. 1070, 100 S.Ct. 1012, 62 L.Ed.2d 751 (1980).
2
* Thomas terminated his employment in the Blaw-Knox Foundry & Machinery Co. when he was transferred from the roll foundry to a department that produced turrets for military tanks. He claimed his religious beliefs prevented him from participating in the production of war materials. The respondent Review Board denied him unemployment compensation benefits by applying disqualifying provisions of the Indiana Employment Security Act.1
3
Thomas, a Jehovah's Witness, was hired initially to work in the roll foundry at Blaw-Knox. The function of that department was to fabricate sheet steel for a variety of industrial uses. On his application form, he listed his membership in the Jehovah's Witnesses, and noted that his hobbies were Bible study and Bible reading. However, he placed no conditions on his employment; and he did not describe his religious tenets in any detail on the form.
4
Approximately a year later, the roll foundry closed, and Blaw-Knox transferred Thomas to a department that fabricated turrets for military tanks. On his first day at this new job, Thomas realized that the work he was doing was weapons related. He checked the bulletin board where in-plant openings were listed, and discovered that all of the remaining departments at Blaw-Knox were engaged directly in the production of weapons. Since no transfer to another department would resolve his problem, he asked for a layoff. When that request was denied, he quit, asserting that he could not work on weapons without violating the principles of his religion. The record does not show that he was offered any nonweapons work by his employer, or that any such work was available.
5
Upon leaving Blaw-Knox, Thomas applied for unemployment compensation benefits under the Indiana Employment Security Act.2 At an administrative hearing where he was not represented by counsel, he testified that he believed that contributing to the production of arms violated his religion. He said that when he realized that his work on the tank turret line involved producing weapons for war, he consulted another Blaw-Knox employee—a friend and fellow Jehovah's Witness. The friend advised him that working on weapons parts at Blaw-Knox was not "unscriptural." Thomas was not able to "rest with" this view, however. He concluded that his friend's view was based upon a less strict reading of Witnesses' principles than his own.
6
When asked at the hearing to explain what kind of work his religious convictions would permit, Thomas said that he would have no difficulty doing the type of work that he had done at the roll foundry. He testified that he could, in good conscience, engage indirectly in the production of materials that might be used ultimately to fabricate arms—for example, as an employee of a raw material supplier or of a roll foundry.3
7
The hearing referee found that Thomas' religious beliefs specifically precluded him from producing or directly aiding in the manufacture of items used in warfare.4 He also found that Thomas had terminated his employment because of these religious convictions. The referee reported:
8
"Claimant continually searched for a transfer to another department which would not be so armament related; however, this did not materialize, and prior to the date of his leaving, claimant requested a layoff, which was denied; and on November 6, 1975, claimant did quit due to his religious convictions."5
9
The referee concluded nonetheless that Thomas' termination was not based upon a "good cause [arising] in connection with [his] work," as required by the Indiana unemployment compensation statute. Accordingly, he was held not entitled to benefits. The Review Board adopted the referee's findings and conclusions, and affirmed the denial of benefits.6
10
The Indiana Court of Appeals, accepting the finding that Thomas terminated his employment "due to his religious convictions," reversed the decision of the Review Board, and held that § 22-4-15-1, as applied, improperly burdened Thomas' right to the free exercise of his religion. Accordingly, it ordered the Board to extend benefits to Thomas. Thomas v. Review Board, Ind.App., 65 Ind.Dec. 238, 381 N.E.2d 888 (1978).
11
The Supreme Court of Indiana, dividing 3-2, vacated the decision of the Court of Appeals, and denied Thomas benefits. Ind., 391 N.E.2d 1127 (1979). With reference to the Indiana unemployment compensation statute, the court said:
12
"It is not intended to facilitate changing employment or to provide relief for those who quit work voluntarily for personal reasons. Voluntary unemployment is not compensable under the purpose of the Act, which is to provide benefits for persons unemployed through no fault of their own.
13
"Good cause which justifies voluntary termination must be job-related and objective in character." Ind., 391 N.E.2d, at 1129 (footnotes omitted).
14
The court held that Thomas had quit voluntarily for personal reasons, and therefore did not qualify for benefits. Ind., 391 N.E.2d, at 1130.
15
In discussing the petitioner's free exercise claim, the court stated: "A personal philosophical choice rather than a religious choice, does not rise to the level of a first amendment claim." Ind., 391 N.E.2d, at 1131. The court found the basis and the precise nature of Thomas' belief unclear—but it concluded that the belief was more "personal philosophical choice" than religious belief. Nonetheless, it held that, even assuming that Thomas quit for religious reasons, he would not be entitled to benefits: under Indiana law, a termination motivated by religion is not for "good cause" objectively related to the work.
16
The Indiana court concluded that denying Thomas benefits would create only an indirect burden on his free exercise right and that the burden was justified by the legitimate state interest in preserving the integrity of the insurance fund and maintaining a stable work force by encouraging workers not to leave their jobs for personal reasons.
17
Finally, the court held that awarding unemployment compensation benefits to a person who terminates employment voluntarily for religious reasons, while denying such benefits to persons who terminate for other personal but nonreligious reasons, would violate the Establishment Clause of the First Amendment.
18
The judgment under review must be examined in light of our prior decisions, particularly Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963).
II
19
Only beliefs rooted in religion are protected by the Free Exercise Clause, which, by its terms, gives special protection to the exercise of religion. Sherbert v. Verner, supra; Wis- consin v. Yoder, 406 U.S. 205, 215-216, 92 S.Ct. 1526, 1533, 32 L.Ed.2d 15 (1972). The determination of what is a "religious" belief or practice is more often than not a difficult and delicate task, as the division in the Indiana Supreme Court attests.7 However, the resolution of that question is not to turn upon a judicial perception of the particular belief or practice in question; religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.
20
In support of his claim for benefits, Thomas testified:
21
"Q. And then when it comes to actually producing the tank itself, hammering it out; that you will not do. . . .
22
"A. That's right, that's right when . . . I'm daily faced with the knowledge that these are tanks. . . .
23
* * * * *
24
"A. I really could not, you know, conscientiously continue to work with armaments. It would be against all of the . . . religious principles that . . . I have come to learn. . . ." Ind., 391 N.E.2d, at 1132.
25
Based upon this and other testimony, the referee held that Thomas "quit due to his religious convictions."8 The Review Board adopted that finding,9 and the finding is not challenged in this Court.
26
The Indiana Supreme Court apparently took a different view of the record. It concluded that "although the claimant's reasons for quitting were described as religious, it was unclear what his belief was, and what the religious basis of his belief was."10 In that court's view, Thomas had made a merely "personal philosophical choice rather than a religious choice."11
27
In reaching its conclusion, the Indiana court seems to have placed considerable reliance on the facts that Thomas was "struggling" with his beliefs and that he was not able to "articulate" his belief precisely. It noted, for example, that Thomas admitted before the referee that he would not object to
28
"working for United States Steel or Inland Steel . . . produc[ing] the raw product necessary for the production of any kind of tank . . . [because I] would not be a direct party to whoever they shipped it to [and] would not be . . . chargeable in . . . conscience. . . ." Ind., 391 N.E.2d, at 1131.
29
The court found this position inconsistent with Thomas' stated opposition to participation in the production of armaments. But Thomas' statements reveal no more than that he found work in the roll foundry sufficiently insulated from producing weapons of war. We see, therefore, that Thomas drew a line, and it is not for us to say that the line he drew was an unreasonable one. Courts should not undertake to dissect religious beliefs because the believer admits that he is "struggling" with his position or because his beliefs are not articulated with the clarity and precision that a more sophisticated person might employ.
30
The Indiana court also appears to have given significant weight to the fact that another Jehovah's Witness had no scruples about working on tank turrets; for that other Witness, at least, such work was "scripturally" acceptable. Intrafaith differences of that kind are not uncommon among followers of a particular creed, and the judicial process is singularly ill equipped to resolve such differences in relation to the Religion Clauses. One can, of course, imagine an asserted claim so bizarre, so clearly nonreligious in motivation, as not to be entitled to protection under the Free Exercise Clause; but that is not the case here, and the guarantee of free exercise is not limited to beliefs which are shared by all of the members of a religious sect. Particularly in this sensitive area, it is not within the judicial function and judicial competence to inquire whether the petitioner or his fellow worker more correctly perceived the commands of their common faith. Courts are not arbiters of scriptural interpretation.
31
The narrow function of a reviewing court in this context is to determine whether there was an appropriate finding that petitioner terminated his work because of an honest conviction that such work was forbidden by his religion. Not surprisingly, the record before the referee and the Review Board was not made with an eye to the microscopic examination often exercised in appellate judicial review. However, judicial review is confined to the facts as found and conclusions drawn. On this record, it is clear that Thomas terminated his employment for religious reasons.
III
A.
32
More that 30 years ago, the Court held that a person may not be compelled to choose between the exercise of a First Amendment right and participation in an otherwise available public program. A state may not
33
"exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation." Everson v. Board of Education, 330 U.S. 1, 16, 67 S.Ct. 504, 511, 91 L.Ed. 711 (1947) (emphasis deleted).
34
Later, in Sherbert, the Court examined South Carolina's attempt to deny unemployment compensation benefits to a Sabbatarian who declined to work on Saturday. In sustaining her right to receive benefits, the Court held:
35
"The ruling [disqualifying Mrs. Sherbert from benefits because of her refusal to work on Saturday in violation of her faith] forces her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand. Governmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against [her] for her Saturday worship." 374 U.S., at 404, 83 S.Ct., at 1794.
36
The respondent Review Board argues, and the Indiana Supreme Court held, that the burden upon religion here is only the indirect consequence of public welfare legislation that the State clearly has authority to enact. "Neutral objective standards must be met to qualify for compensation." Ind., 391 N.E.2d, at 1130. Indiana requires applicants for unemployment compensation to show that they left work for "good cause in connection with the work." Ibid.
37
A similar argument was made and rejected in Sherbert, however. It is true that, as in Sherbert, the Indiana law does not compel a violation of conscience. But, "this is only the beginning, not the end, of our inquiry." 374 U.S., at 403-404, 83 S.Ct., at 1794. In a variety of ways we have said that "[a] regulation neutral on its face may, in its application, nonetheless offend the constitutional requirement for governmental neutrality if it unduly burdens the free exercise of religion." Wisconsin v. Yoder, 406 U.S., at 220, 92 S.Ct., at 1535. Cf. Walz v. Tax Comm'n, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970).
38
Here, as in Sherbert, the employee was put to a choice between fidelity to religious belief or cessation of work; the coercive impact on Thomas is indistinguishable from Sherbert, where the Court held:
39
"[N]ot only is it apparent that appellant's declared ineligibility for benefits derives solely from the practice of her religion, but the pressure upon her to forego, that practice is unmistakable." 374 U.S., at 404, 83 S.Ct., at 1794.
40
Where the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists. While the compulsion may be indirect, the infringement upon free exercise is nonetheless substantial.
41
The respondents also contend that Sherbert is inapposite because, in that case, the employee was dismissed by the employer's action. But we see that Mrs. Sherbert was dismissed because she refused to work on Saturdays after the plant went to a 6-day workweek. Had Thomas simply presented himself at the Blaw-Knox plant turret line but refused to perform any assigned work, it must be assumed that he, like Sherbert, would have been terminated by the employer's action, if no other work was available. In both cases, the termination flowed from the fact that the employment, once acceptable, became religiously objectionable because of changed conditions.
B
42
The mere fact that the petitioner's religious practice is burdened by a governmental program does not mean that an exemption accommodating his practice must be granted. The state may justify an inroad on religious liberty by showing that it is the least restrictive means of achieving some compelling state interest. However, it is still true that "[t]he essence of all that has been said and written on the subject is that only those interests of the highest order . . . can overbalance legitimate claims to the free exercise of religion." Wisconsin v. Yoder, supra, 406 U.S., at 215, 92 S.Ct., at 1533.
43
The purposes urged to sustain the disqualifying provision of the Indiana unemployment compensation scheme are twofold: (1) to avoid the widespread unemployment and the consequent burden on the fund resulting if people were permitted to leave jobs for "personal" reasons;12 and (2) to avoid a detailed probing by employers into job applicants' religious beliefs. These are by no means unimportant considerations. When the focus of the inquiry is properly narrowed, however, we must conclude that the interests advanced by the State do not justify the burden placed on free exercise of religion.
44
There is no evidence in the record to indicate that the number of people who find themselves in the predicament of choosing between benefits and religious beliefs is large enough to create "widespread unemployment," or even to seriously affect unemployment—and no such claim was advanced by the Review Board. Similarly, although detailed inquiry by employers into applicants' religious beliefs is undesirable, there is no evidence in the record to indicate that such inquiries will occur in Indiana, or that they have occurred in any of the states that extend benefits to people in the petitioner's position. Nor is there any reason to believe that the number of people terminating employment for religious reasons will be so great as to motivate employers to make such inquiries.
45
Neither of the interests advanced is sufficiently compelling to justify the burden upon Thomas' religious liberty. Accordingly, Thomas is entitled to receive benefits unless, as the respondents contend and the Indiana court held, such payment would violate the Establishment Clause.
IV
46
The respondents contend that to compel benefit payments to Thomas involves the State in fostering a religious faith. There is, in a sense, a "benefit" to Thomas deriving from his religious beliefs, but this manifests no more than the tension between the two Religious Clauses which the Court resolved in Sherbert:
47
"In holding as we do, plainly we are not fostering the 'establishment' of the Seventh-day Adventist religion in South Carolina, for the extension of unemployment benefits to Sabbatarians in common with Sunday worshippers reflects nothing more than the governmental obligation of neutrality in the face of religious differences, and does not represent that involvement of religious with secular institutions which it is the object of the Establishment Clause to forestall." Sherbert v. Verner, 374 U.S., at 409, 83 S.Ct., at 1796.
48
See also Wisconsin v. Yoder, 406 U.S., at 220-221, 92 S.Ct., at 1535-1536; Walz v. Tax Comm'n, 397 U.S., at 668-669, 90 S.Ct., at 1411; O'Hair v. Andrus, 198 U.S.App.D.C. 198, 201-204, 613 F.2d 931, 934-937 (1979) (Leventhal, J.).
49
Unless we are prepared to overrule Sherbert, supra, Thomas cannot be denied the benefits due him on the basis of the findings of the referee, the Review Board, and the Indiana Court of Appeals that he terminated his employment because of his religious convictions.
50
Reversed.
51
Justice BLACKMUN joins Parts I, II, and III of the Court's opinion. As to Part IV thereof, he concurs in the result.
52
Justice REHNQUIST, dissenting.
53
The Court today holds that the State of Indiana is constitutionally required to provide direct financial assistance to a person solely on the basis of his religious beliefs. Because I believe that the decision today adds mud to the already muddied waters of First Amendment jurisprudence, I dissent.
54
* The Court correctly acknowledges that there is a "tension" between the Free Exercise and Establishment Clauses of the First Amendment of the United States Constitution. Although the relationship of the two Clauses has been the subject of much commentary, the "tension" is a fairly recent vintage, unknown at the time of the framing and adoption of the First Amendment. The causes of the tension, it seems to me, are threefold. First, the growth of social welfare legislation during the latter part of the 20th century has greatly magnified the potential for conflict between the two Clauses, since such legislation touches the individual at so many points in his life. Second, the decision by this Court that the First Amendment was "incorporated" into the Fourteenth Amendment and thereby made applicable against the States, Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931); Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940), similarly multiplied the number of instances in which the "tension" might arise. The third, and perhaps most important, cause of the tension is our overly expansive interpretation of both Clauses. By broadly construing both Clauses, the Court has constantly narrowed the channel between the Scylla and Charybdis through which any state or federal action must pass in order to survive constitutional scrutiny.
55
None of these developments could have been foreseen by those who framed and adopted the First Amendment. The First Amendment was adopted well before the growth of much social welfare legislation and at a time when the Federal Government was in a real sense considered a government of limited delegated powers. Indeed, the principal argument against adopting the Constitution without a "Bill of Rights" was not that such an enactment would be undesirable but that it was unnecessary because of the limited nature of the Federal Government. So long as the Government enacts little social welfare legislation, as was the case in 1791, there are few occasions in which the two Clauses may conflict. Moreover, as originally enacted, the First Amendment applied only to the Federal Government, not the government of the States. Barron v. Baltimore, 7 Pet. 243, 8 L.Ed. 672 (1833). The Framers could hardly anticipate Barron being superseded by the "selective incorporation" doctrine adopted by the Court, a decision which greatly expanded the number of statutes which would be subject to challenge under the First Amendment. Because those who drafted and adopted the First Amendment could not have foreseen either the growth of social welfare legislation or the incorporation of the First Amendment into the Fourteenth Amendment, we simply do not know how they would view the scope of the two Clauses.
II
56
The decision today illustrates how far astray the Court has gone in interpreting the Free Exercise and Establishment Clauses of the First Amendment. Although the Court holds that a State is constitutionally required to provide direct financial assistance to persons solely on the basis of their religious beliefs and recognizes the "tension" between the two Clauses, it does little to help resolve that tension or to offer meaningful guidance to other courts which must decide cases like this on a day-by-day basis. Instead, it simply asserts that there is no Establishment Clause violation here and leaves the tension between the two Religion Clauses to be resolved on a case-by-case basis. As suggested above, however, I believe that the "tension" is largely of this Court's own making, and would diminish almost to the vanishing point if the Clauses were properly interpreted.
57
Just as it did in Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), the Court today reads the Free Exercise Clause more broadly than is warranted. As to the proper interpretation of the Free Exercise Clause, I would accept the decision of Braunfeld v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563 (1961), and the dissent in Sherbert. In Braunfeld, we held that Sunday closing laws do not violate the First Amendment rights of Sabbatarians. Chief Justice Warren explained that the statute did not make unlawful any religious practices of appellants; it simply made the practice of their religious beliefs more expensive. We concluded that "[t]o strike down, without the most critical scrutiny, legislation which imposes only an indirect burden on the exercise of religion, i. e. legislation which does notmake unlawful the religious practice itself, would radically restrict the operating latitude of the legislature." 366 U.S., at 606, 81 S.Ct., at 1147. Likewise in this case, it cannot be said that the State discriminated against Thomas on the basis of his religious beliefs or that he was denied benefits because he was a Jehovah's Witness. Where, as here, a State has enacted a general statute, the purpose and effect of which is to advance the State's secular goals, the Free Exercise Clause does not in my view require the State to conform that statute to the dictates of religious conscience of any group. As Justice Harlan recognized in his dissent in Sherbert v. Verner, supra: "Those situations in which the Constitution may require special treatment on account of religion are . . . few and far between." Id., at 423, 83 S.Ct., at 1804. Like him I believe that although a State could choose to grant exemptions to religious persons from state unemployment regulations,1 a State is not constitutionally compelled to do so. Id., at 422-423, 83 S.Ct., at 1803-1804.2
58
The Court's treatment of the Establishment Clause issue is equally unsatisfying. Although today's decision requires a State to provide direct financial assistance to persons solely on the basis of their religious beliefs, the Court nonetheless blandly assures us, just as it did in Sherbert, that its decision "plainly" does not foster the "establishment" of religion. Ante, at 719. I would agree that the Establishment Clause, properly interpreted, would not be violated if Indiana voluntarily chose to grant unemployment benefits to those persons who left their jobs for religious reasons. But I also believe that the decision below is inconsistent with many of our prior Establishment Clause cases. Those cases, if faithfully applied, would require us to hold that such voluntary action by a State did violate the Establishment Clause.
59
Justice STEWART noted this point in his concurring opinion in Sherbert, 374 U.S., at 414-417, 83 S.Ct., at 1799-1801. He observed that decisions like Sherbert, and the one rendered today, squarely conflict with the more extreme language of many of our prior Establishment Clause cases. In Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1949), the Court stated that the Establishment Clause bespeaks a "government . . . stripped of all power . . . to support, or otherwise to assist any or all religions . . .," and no State "can pass laws which aid one religion . . . [or] all religions." Id., at 11, 15, 67 S.Ct., at 509, 511. In Torcaso v. Watkins, 367 U.S. 488, 495, 81 S.Ct. 1680, 1683, 6 L.Ed.2d 982 (1961), the Court asserted that the government cannot "constitutionally pass laws or impose requirements which aid all religions as against non-believers." And in Abington School District v. Schempp, 374 U.S. 203, 217, 83 S.Ct. 1560, 1568, 10 L.Ed.2d 844 (1963), the Court adopted Justice Rutledge's words in Everson that the Establishment Clause forbids " 'every form of public aid or support for religion.' " See also Engel v. Vitale, 370 U.S. 421, 431, 82 S.Ct. 1261, 1267, 8 L.Ed.2d 601 (1962).
60
In recent years the Court has moved away from the mechanistic "no-aid-to-religion" approach to the Establishment Clause and has stated a three-part test to determine the constitutionality of governmental aid to religion. See Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971); Committee for Public Education v. Nyquist, 413 U.S. 756, 772-773, 93 S.Ct. 2955, 2965, 37 L.Ed.2d 948 (1973). First, the statute must serve a secular legislative purpose. Second, it must have a "primary effect" that neither advances nor inhibits religion. And third, the State and its administration must avoid excessive entanglement with religion. Walz v. Tax Comm'n, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970).
61
It is not surprising that the Court today makes no attempt to apply those principles to the facts of this case. If Indiana were to legislate what the Court today requires—an unemployment compensation law which permitted benefits to be granted to those persons who quit their jobs for religious reasons—the statute would "plainly" violate the Establishment Clause as interpreted in such cases as Lemon and Nyquist. First, although the unemployment statute as a whole would be enacted to serve a secular legislative purpose, the proviso would clearly serve only a religious purpose. It would grant financial benefits for the sole purpose of accommodating religious beliefs. Second, there can be little doubt that the primary effect of the proviso would be to "advance" religion by facilitating the exercise of religious belief. Third, any statute including such a proviso would surely "entangle" the State in religion far more than the mere grant of tax exemptions, as in Walz, or the award of tuition grants and tax credits, as in Nyquist. By granting financial benefits to persons solely on the basis of their religious beliefs, the State must necessarily inquire whether the claimant's belief is "religious" and whether it is sincerely held. Otherwise any dissatisfied employee may leave his job without cause and claim that he did so because his own particular beliefs required it.
62
It is unclear from the Court's opinion whether it has temporarily retreated from its expansive view of the Establishment Clause, or wholly abandoned it. I would welcome the latter. Just as I think that Justice Harlan in Sherbert correctly stated the proper approach to free exercise questions, I believe that Justice STEWART, dissenting in Abington School District v. Schempp, supra, accurately stated the reach of the Establishment Clause. He explained that the Establishment Clause is limited to "government support of proselytizing activities of religious sects by throwing the weight of secular authorit[ies] behind the dissemination of religious tenets." Id., at 314, 83 S.Ct., at 1619. See McCollum v. Board of Education, 333 U.S. 203, 248, 68 S.Ct. 461, 483, 92 L.Ed. 649 (1948) (Reed, J., dissenting) (impermissible aid is only "purposeful assistance directly to the church itself or to some religious group . . . performing ecclesiastical functions"). Conversely, governmental assistance which does not have the effect of "inducing" religious belief, but instead merely "accommodates" or implements an independent religious choice does not impermissibly involve the government in religious choices and therefore does not violate the Establishment Clause of the First Amendment. I would think that in this case, as in Sherbert, had the State voluntarily chosen to pay unemployment compensation benefits to persons who left their jobs for religious reasons, such aid would be constitutionally permissible because it redounds directly to the benefit of the individual. Accord, Wolman v. Walter, 433 U.S. 229, 97 S.Ct. 2593, 53 L.Ed.2d 714 (1977) (upholding various disbursements made to pupils in parochial schools).
63
In sum, my difficulty with today's decision is that it reads the Free Exercise Clause too broadly and it fails to squarely acknowledge that such a reading conflicts with many of our Establishment Clause cases. As such, the decision simply exacerbates the "tension" between the two Clauses. If the Court were to construe the Free Exercise Clause as it did in Braunfeld and the Establishment Clause as Justice STEWART did in Schempp, the circumstances in which there would be a conflict between the two Clauses would be few and far between. Although I heartily agree with the Court's tacit abandonment of much of our rhetoric about the Establishment Clause, I regret that the Court cannot see its way clear to restore what was surely intended to have been a greater degree of flexibility to the Federal and State Governments in legislating consistently with the Free Exercise Clause. Accordingly, I would affirm the judgment of the Indiana Supreme Court.
1
Indiana Code § 22-4-15-1 (Supp.1978) provides:
"With respect to benefit periods including extended benefit periods established subsequent to July 6, 1974, and before July 3, 1977, an individual who has voluntarily left his employment without good cause in connection with the work or who was discharged from his employment for just cause shall be ineligible for waiting period or benefit rights for the week in which the disqualifying separation occurred and until he has subsequently earned remuneration in employment equal to or exceeding the weekly benefit amount of his claim in each of ten (10) weeks. The weeks of a disqualification period remaining at the expiration of an individual's benefit period will be carried forward to an extended benefit period or to the benefit period of a subsequent claim only if the first week of such extended benefit period or subsequent benefit period falls within ten (10) consecutive weeks from the beginning of the disqualification period imposed on the prior claim."
2
Ind. Code § 22-4-1-1 et seq. (1976 and Supp.1978).
3
It is reasonable to assume that some of the sheet steel processed in the roll foundry may have found its way into tanks or other weapons; the record, however, contains no evidence or finding on this point.
4
The referee indicated, App. to Pet. for Cert. 2a:
"The evidence reveals that approximate [sic ] two to three weeks prior to claimant's date of leaving, the 'Roll Foundry' was closed permanently and claimant was transferred to the terret [sic ] line. [He], at this time, real [sic ] realized that all of the other functions at the Blaw-Knox Company were engaged in producing arms for the Armament Industry. Claimant's religious beliefs specifically exempts [sic ] claimant from producing or aiding in the manufacture of items used in the advancement of war."
5
Id., at 2a-3a (emphasis added by petitioner).
6
The Review Board, like the referee, found that Thomas had left his job for religious reasons, id., at 5a:
"The evidence of record indicates that claimant . . . left his employment voluntarily because his religious beliefs . . . would not allow him to continue to work producing arms. . . ."
7
See, e. g., Torcaso v. Watkins, 367 U.S. 488, 495, 81 S.Ct. 1680, 1683, 6 L.Ed.2d 982 (1961); United States v. Ballard, 322 U.S. 78, 64 S.Ct. 882, 88 L.Ed. 1148 (1944).
8
See n. 4, and text at n. 5, supra.
9
See n. 6, supra.
10
Ind., 391 N.E.2d, at 1133.
11
Id., 391 N.E.2d, at 1131.
12
A similar interest—the integrity of the insurance fund was advanced and rejected in Sherbert v. Verner, 374 U.S. 398, 407, 83 S.Ct. 1790, 1795, 10 L.Ed.2d 965 (1963).
1
Even if I were to agree that Sherbert was correctly decided, I still would dissent on the grounds that today's decision unjustifiably extends Sherbert. The Indiana Employment Security Act, Ind.Code § 22-4-15-1 (Supp.1978), provides that an "individual who has voluntarily left his employment without good cause in connection with his employment" is disqualified from receiving benefits. In this case, the Supreme Court of Indiana "found the basis and the precise nature of Thomas' belief unclear" and concluded that the belief was more "personal philosophical choice" than religious belief. Ante, at 713. The Court's failure to make clear whether it accepts or rejects this finding by the Indiana Supreme Court, the highest court of the State, suggests that a person who leaves his job for purely "personal philosophical choices" will be constitutionally entitled to unemployment benefits. If that is true, the implications of today's decision are enormous. Persons will then be able to quit their jobs, assert they did so for personal reasons, and collect unemployment insurance. We could surely expect the State's limited funds allotted for unemployment insurance to be quickly depleted.
In addition, the Court's opinion in Sherbert, 374 U.S., at 401, n.4, 83 S.Ct., at 1792, n.4, seems to suggest by negative implication that where a State makes every "personal reason" for leaving a job a basis for disqualification from unemployment benefits, the State need not grant an exemption to persons such as Sherbert who do quit for "personal reasons." In this case, the Indiana Supreme Court has construed the State's unemployment statute to make every personal subjective reason for leaving a job a basis for disqualification. E. g., Geckler v. Review Bd. of the Indiana Employment Security Div., 244 Ind. 473, 193 N.E.2d 357 (1963). This case is thus distinguishable from Sherbert. Because Thomas left his job for a personal reason, the State of Indiana should not be prohibited from disqualifying him from receiving benefits.
2
To the extent Sherbert was correctly decided, it might be argued that cases
such as McCollum v. Board of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649 (1948); Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962); Abington School District v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963); Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971); and Committee for Public Education v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973), were wrongly decided. The "aid" rendered to religion in these latter cases may not be significantly different, in kind or degree, than the "aid" afforded Mrs. Sherbert or Thomas. For example, if the State in Sherbert could not deny compensation to one refusing work for religious reasons, it might be argued that a State may not deny reimbursement to students who choose for religious reasons to attend parochial schools. The argument would be that although a State need not allocate any funds to education, once it has done so, it may not require any person to sacrifice his religious beliefs in order to obtain an equal education. See Lemon, supra, 403 U.S., at 665, 91 S.Ct., at 2137 (opinion of WHITE, J.); Nyquist, supra, 413 U.S., at 798-805, 93 S.Ct., at 2978-2992 (opinion of BURGER, C. J.). There can be little doubt that to the extent secular education provides answers to important moral questions without reference to religion or teaches that there are no answers, a person in one sense sacrifices his religious belief by attending secular schools. And even if such "aid" were not constitutionally compelled by the Free Exercise Clause, Justice Harlan may well have been right in Sherbert when he found sufficient flexibility in the Establishment Clause to permit the States to voluntarily choose to grant such benefits to individuals.
| 23
|
451 U.S. 56
101 S.Ct. 1559
67 L.Ed.2d 732
UNITED PARCEL SERVICE, INC., Petitioner,v.William MITCHELL.
No. 80-169.
Argued Feb. 24, 1981.
Decided April 20, 1981.
Syllabus
After respondent employee had been discharged by petitioner employer for alleged dishonest acts, respondent requested his union to file a grievance contesting the discharge. The collective-bargaining agreement provided a grievance and arbitration procedure for the resolution of covered disputes. Respondent was represented by the union at an arbitration hearing which resulted in a decision upholding the discharge. Seventeen months later, respondent filed suit in Federal District Court against the union and petitioner under § 301(a) of the Labor Management Relations Act, alleging that the union had breached its duty of fair representation and that petitioner discharged him not for the stated reasons, which it knew to be false, but to replace full-time employees with part-time employees. The court granted summary judgment for the defendants on the ground that the action was barred by New York's 90-day statute of limitations for actions to vacate arbitration awards. The Court of Appeals >>reversed, holding that the District Court should have applied New York's 6-year limitations period for breach-of-contract actions.
Held : Given the choices present here, and the undesirability of the results of the grievance and arbitral process being suspended in limbo for long periods, the District Court properly chose the 90-day period for the bringing of an action to vacate an arbitration award. Cf. Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231. Pp. 60-64.
(a) The timeliness of a § 301 suit is to be determined, as a matter of federal law, by reference to the appropriate state statute of limitations, and the determination of which limitations period is the most appropriate depends upon the nature of the federal claim and the federal policies involved. Auto Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 86 S.Ct. 1107, 16 L.Ed.2d 192. Pp. 60-61.
(b) Although not styled as one to vacate the arbitration award, respondent's suit, if successful, would have that direct effect. He raised the same claim that was raised before the arbitrators—that he was discharged in violation of the collective-bargaining agreement. He sought the same relief reinstatement with full backpay. While his underlying claim against his employer was based on the collectivebargaining agreement, the indispensable predicate for the § 301(a) action was not a showing under traditional contract law that the discharge was a breach of the agreement, but instead that the union breached its duty of fair representation. Since the arbitrators' conclusion was, under the collective-bargaining agreement, "binding on all parties," respondent was required to show that the union's duty to represent him fairly at the arbitration had been breached before he was entitled to reach the merits of his contract claim. Thus, the suit is more analogous to an action to vacate an arbitration award than to a straight contract action. Pp. 61-62.
(c) An employee's unfair representation claim against his union, even though his employer may ultimately be called upon to respond in damages if he is successful, is more a creature of "labor law" as it has developed since the enactment of § 301 than it is of general contract law. And one of the leading federal policies in this area is the relatively rapid disposition of labor disputes. The system of industrial self-government, with its heavy emphasis on grievance, arbitration, and the "law of the shop," could easily become unworkable if a decision which has given "meaning and content" to the terms of an agreement, and even affected subsequent modifications of the agreement, could suddenly be called into question as much as six years later. Pp. 63-64
624 F.2d 394, reversed.
Bernard G. Segal, Philadelphia, Pa., for petitioner.
David Jaroslawicz, New York City, for respondent.
JUSTICE REHNQUIST delivered the opinion of the Court.
1
We are called upon in this case to determine which state statute of limitations period should be borrowed and applied to an employee's action against his employer under § 301(a) of the Labor Management Relations Act, 1947, 61 Stat. 156, 29 U.S.C. § 185(a), and Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976).
2
* Petitioner United Parcel Service, Inc. (UPS), employed respondent Mitchell (respondent) as a car washer at its facility on Staten Island, N. Y. On January 13, 1977, respondent was discharged for dishonest acts, including falsifying his timecards and claiming payment for hours which he did not work. Respondent denied the charges against him and requested his union, Department Store and Wholesale Drivers, Warehousemen and Helpers, Local Union No. 177 (the Union), to file a grievance on his behalf contesting the discharge. UPS and the Union were parties to a collective-bargaining agreement which provided a grievance and arbitration procedure for the resolution of disputes covered by the agreement. App. 57-67. Pursuant to the agreement respondent's grievance was submitted to a panel of the Atlantic Area Parcel Grievance Committee, composed of three union and three company representatives (the Joint Panel). Cf. Hines v. Anchor Motor Freight, Inc., supra, at 557, n.2, 96 S.Ct., at 1053 n.2. The Joint Panel conducted a hearing, at which respondent was represented by the Union, and on February 16, 1977, it announced its decision that the discharge be upheld. App. 103-104. Under the collective-bargaining agreement this decision was "binding on all parties." Id., at 66; see id., at 103.
3
Seventeen months later, on July 20, 1978, respondent filed a complaint in the United States District Court for the Eastern District of New York against the Union and UPS under § 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a). See Hines v. Anchor Motor Freight, Inc., supra. He alleged that the Union had breached its duty of fair representation and that UPS discharged him not for the stated reasons, which it knew to be false, but to achieve savings by replacing full-time employees with part-time employees. App. 7-13. Both UPS and the Union moved for summary judgment on the ground that the action was barred by New York's 90-day statute of limitations for actions to vacate arbitration awards. Section 7511(a) of the N.Y. Civ. Prac. Law (McKinney 1963) provides that "[a]n application to vacate or modify an [arbitration] award may be made by a party within ninety days after its delivery to him."
4
The District Court granted summary judgment in favor of UPS and the Union, ruling that respondent's action was properly characterized as one to vacate the arbitration award entered against him. The court reasoned; "The relief sought was expressly denied in an arbitration award issued as a result of a full-scale, arbitration proceeding. The effect of any grant of the relief sought . . . would be to vacate the determination of the arbitrators." App. 129. Respondent appealed and the Court of Appeals for the Second Circuit reversed. 624 F.2d 394 (1980). That court held that the District Court should have applied New York's 6-year limitations period for actions alleging breach of contract, N.Y.Civ.Prac.Law § 213(2) (McKinney 1972). It reasoned that respondent's action was analogous to a breach-of-contract action because the issues were whether the collective-bargaining agreement had been breached and whether the Union contributed to that breach by failure to discharge its duty of fair representation. The court further reasoned that a 6-year limitations period "provides for relatively rapid disposition of labor disputes without undermining an employee's ability to vindicate his rights through § 301 actions." 624 F.2d, at 397-398.
5
We granted UPS' petition for certiorari. 449 U.S. 898, 101 S.Ct. 265, 66 L.Ed.2d 127 (1980).1
II
6
Congress has not enacted a statute of limitations governing actions brought pursuant to § 301 of the LMRA. As this Court pointed out in Auto Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 704-705, 86 S.Ct. 1107, 1112-13, 16 L.Ed.2d 192 (1966), "the timeliness of a § 301 suit . . . is to be determined, as a matter of federal law, by reference to the appropriate state statute of limitations."2 Our present task is to determine which limitations period is "the most appropriate one provided by state law." Johnson v. Railway Express Agency Inc., 421 U.S. 454, 462, 95 S.Ct. 1716, 1721, 44 L.Ed.2d 295 (1975). This depends upon an examination of the nature of the federal claim and the federal policies involved. See Hoosier Cardinal, supra, at 706-707, 86 S.Ct., at 1113-14.
7
Although respondent did not style his suit as one to vacate the award of the Joint Panel, if he is successful the suit will have that direct effect. Respondent raises in his § 301 action the same claim that was raised before the Joint Panel—that he was discharged in violation of the collective-bargaining agreement. He seeks the same relief he sought before the Joint Panel reinstatement with full backpay. In sum, "it is clear that [he] was dissatisfied with and simply seeks to upset the arbitrator's decision that the Company did not wrongfully discharge him." Liotta v. National Forge Co., 629 F.2d 903, 905-906 (CA3 1980), cert. pending, No. 80-890.3
8
The Court of Appeals purported to rely on this Court's decision in Hines v. Anchor Motor Freight, Inc., but that decision strongly supports borrowing the limitations period for actions to vacate arbitration awards. As Hines makes clear, an employee may go behind a final and binding award under a collective-bargaining agreement and seek relief against his employer and union only when he demonstrates that his union's breach of its duty "seriously undermine[d] the integrity of the arbitral process." 424 U.S., at 567, 96 S.Ct., at 1057. Hines rejected the suggestion that "erroneous arbitration decisions must stand" in the face of the union's breach of its duty, id., at 571, 96 S.Ct., at 1059, suggesting that the suits it sanctioned are aptly characterized as ones to vacate such arbitration decisions. Indeed the present writer, though in dissent on the merits in Hines, characterized the action as one to "vacate an . . . arbitration award." Id., at 575, 96 S.Ct., at 1061. See also Humphrey v. Moore, 375 U.S. 335, 336, 84 S.Ct. 363, 11 L.Ed.2d 370 (1964) (issue characterized as whether to enjoin implementation of decision of joint panel).
9
It is true that respondent's underlying claim against his employer is based on the collective-bargaining agreement, a contract. It is not enough, however, for an employee such as respondent to prove that he was discharged in violation of the collective-bargaining agreement. "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. . . . The grievance processes cannot be expected to be error-free." Hines, 424 U.S., at 570-571, 96 S.Ct., at 1059-60. Thus respondent's characterization of his action against the employer as one for "breach of contract" ignores the significance of the fact that it was brought in the District Court pursuant to § 301(a) of the LMRA and that the indispensable predicate for such an action is not a showing under traditional contract law that the discharge was a breach of the collective-bargaining agreement, but instead a demonstration that the Union breached its duty of fair representation. Since the conclusion of the Joint Panel was, under the collective-bargaining agreement, "binding on all parties," respondent was required in some way to show that the Union's duty to represent him fairly at the arbitration had been breached before he was entitled to reach the merits of his contract claim. This, in our view, makes the suit more analogous to an action to vacate an arbitration award than to a straight contract action.4
10
We think that the unfair representation claim made by an employee against his union, even though his employer may ultimately be called upon to respond in damages for it if he is successful, is more a creature of "labor law" as it has developed since the enactment of § 301 than it is of general contract law. We said in Hoosier Cardinal that one of the leading federal policies in this area is the "relatively rapid disposition of labor disputes." 383 U.S., at 707, 86 S.Ct., at 1114. Cf. 29 U.S.C. § 160(b) (6-month period under NLRA). This policy was one of the reasons the Court in Hoosier Cardinal chose the generally shorter period for actions based on an oral contract rather than that for actions upon a written contract, 383 U.S., at 707, 86 S.Ct., at 1114, and similar analysis supports our adoption of the shorter period for actions to vacate an arbitration award in this case.5
11
It is important to bear in mind the observations made in the Steelworkers Trilogy that "the grievance machinery under a collective bargaining agreement is at the very heart of the system of industrial self-government. . . . The processing . . . machinery is actually a vehicle by which meaning and content are given to the collective bargaining agreement." Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 581, 80 S.Ct. 1347, 1352, 4 L.Ed.2d 1409 (1960). Although the present case involves a fairly mundane and discrete wrongful-discharge complaint, the grievance and arbitration procedure often processes disputes involving interpretation of critical terms in the collective-bargaining agreement affecting the entire relationship between company and union. See, e. g., Humphrey v. Moore, supra (seniority rights of all employees). This system, with its heavy emphasis on grievance, arbitration, and the "law of the shop," could easily become unworkable if a decision which has given "meaning and content" to the terms of an agreement, and even affected subsequent modifications of the agreement, could suddenly be called into question as much as six years later.
12
Obviously, if New York had adopted a specific 6-year statute of limitations for employee challenges to awards of a joint panel or similar body, we would be bound to apply that statute under the reasoning of Hoosier Cardinal. But in cases such as this, where generally state limitations periods were enacted prior to the enactment of § 301 by Congress in 1947, we are necessarily committed by prior decisional law to choosing among statutes of limitations none of which fit hand in glove with an action under § 301(a) of the LMRA. Given the choices present here, and the undesirability of the results of the grievance and arbitral process being suspended in limbo for long periods, we think the District Court was correct when it chose the 90-day period imposed by New York for the bringing of an action to vacate an arbitration award.
13
Accordingly, the judgment of the Court of Appeals is
14
Reversed.
15
Justice BLACKMUN, concurring.
16
I join the Court's opinion because I am persuaded that the Court has made the correct choice between the two state-law alternatives presented by the parties. As the Court observes, the applicability of § 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b), was never pressed by either party, and was not considered by the Court of Appeals. Although I find much that is persuasive in Justice STEWART'S analysis, resolution of the § 10(b) question properly should await the development of a full adversarial record.
17
Justice STEWART, concurring in the judgment.
18
The Court believes itself obligated by Auto Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 86 S.Ct. 1107, 16 L.Ed.2d 192, to determine the applicable statute of limitations in this case "as a matter of federal law, by reference to the appropriate state statute of limitations."1 I do not believe, however, that we are so constrained by Hoosier. Instead of deciding which of two almost equally relevant state limitations periods applies to the respondent employee's claims, I would impose the limitations period of § 10(b) of the National Labor Relations Act (NLRA), 29 U.S.C. § 160(b).
19
Hoosier involved a straightforward breach-of-contract damages suit brought by a union against an employer under § 301 of the Labor Management Relations Act (LMRA). As Congress had not provided a limitations period for § 301 suits, the Court concluded that a state statute of limitations should apply. But the Court was careful to note that it was not deciding the appropriate time limits for all suits brought under § 301:
20
"The present suit is essentially an action for damages caused by an alleged breach of an employer's obligation embodied in a collective bargaining agreement. Such an action closely resembles an action for breach of contract cognizable at common law. Whether other § 301 suits different from the present one might call for the application of other rules on timeliness, we are not required to decide, and we indicate no view whatsoever on that question." 383 U.S., at 705, n. 7, 86 S.Ct., at 1113.
21
The Court also observed, in response to the claim that reliance on varying state limitations statutes was contrary to the national interest in uniformity in industrial relations, that the kind of contract dispute it had before it did not implicate "those consensual processes that federal labor law is chiefly designed to promote—the formation of the . . . agreement and the private settlement of disputes under it." Id., at 702, 86 S.Ct., at 1111. (emphasis added).
22
The case before us is quite unlike the one in Hoosier. It is a hybrid "§ 301 and breach of duty sui[t]," Vaca v. Sipes, 386 U.S. 171, 197, n. 18, 87 S.Ct. 903, 920, n. 18, 17 L.Ed.2d 842 brought by an employee against both his employer and his union in order to set aside a "final and binding" determination of a grievance, arrived at through the collectively bargained method of resolving the grievance. It is, therefore, a direct challenge to "the private settlement of disputes under [the collective-bargaining agreement]."
23
Moreover, unlike Hoosier, where the employee's complaint was rooted solely in § 301 of the LMRA, the respondent employee here has two claims, each with its own discrete jurisdictional base. The contract claim against the employer is based on § 301, but the duty of fair representation is derived from the NLRA.2 Yet the two claims are inextricably interdependent "To prevail against either the company or the Union, . . . [employee-plaintiffs] 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." Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 570-571, 96 S.Ct. 1048, 1059-60, 47 L.Ed.2d 231. Accordingly, a plaintiff must prevail upon his unfair representation claim before he may even litigate the merits of his § 301 claim against the employer.
24
Thus, the suit in this case, unlike the one in Hoosier, cannot be likened to "an action for breach of contract cognizable at common law." 383 U.S., at 705, n. 7, 86 S.Ct., at 1113, n. 7. Instead, it is an amalgam of § 301, which has no limitations period, and the NLRA. And, of course, the latter contains a limitations provision. Although § 10(b) of the NLRA was designed to limit the initiation of unfair labor practice claims3 in order to safeguard the stability of collective-bargaining agreements, the policy behind it applies with equal force in this context.
B
25
Congress enacted § 10(b) of the NLRA to protect continuing collective-bargaining systems from delayed attack. The 6-month bar of § 10(b)4 is designed to strengthen and defend the "stability of bargaining relationships." Machinists v. NLRB, 362 U.S. 411, 425, 80 S.Ct. 822, 831, 4 L.Ed.2d 832. The time limitation reflects the balance drawn by Congress, "the expositor of the national interest," id., at 429, 80 S.Ct., at 833, between the interest of employees in redressing grievances and "vindicati[ng] [their] statutory rights," ibid., and the "interest in 'industrial peace which it is the overall purpose of the Act to secure.' " Id., at 428, 80 S.Ct., at 832 (quoting NLRB v. Childs Co., 195 F.2d 617, 621-622 (CA2) (L. Hand, concurring)).5
26
Of course, one aspect of the respondent employee's claim in this case is predicated on § 301 of the LMRA; if the plaintiff can establish his claim for breach of the duty of fair representation, he may then pursue his § 301 breach-of-contract claim. But here, unlike Hoosier, the latter action, like the breach-of-duty claim, is a challenge to a result reached in the contractual grievance resolution system. Accordingly, the policy of promoting stability in collective bargaining underlying the time bar of § 10(b) is applicable to this aspect of the respondent employee's case as well.
27
In any event, the two elements of respondent employee's hybrid action cannot be disentangled: the duty of fair representation is "part and parcel of [the] § 301 [claim]." Vaca v. Sipes, 386 U.S., at 186, 87 S.Ct., at 914. When the 6-month period of § 10(b) has passed, the employee should no longer be able to challenge the alleged breach of duty by his union,6 and as this is a precondition for maintaining the contract action, he should not be able to challenge the employer's action either.
28
Finally, even if it were appropriate to view the respondent employee's suit in this case as founded solely on § 301, the Court is not obliged to apply a state statute of limitations. As already noted, Hoosier contemplated that "other § 301 suits different from the present one might call for application of other rules of timeliness." 383 U.S., at 705, n. 7, 86 S.Ct., at 1113, n. 7. And the Court has indicated, in a more general context, that state limitations periods will not be applied when their employment would be inconsistent with national policy:
29
"[T]he Court has not mechanically applied a state statute of limitations simply because a limitations period is absent from the federal statute. State legislatures do not devise their limitations periods with national interests in mind, and it is the duty of the federal courts to assure that the importation of state law will not frustrate or interfere with the implementation of national policies. . . . State limitations periods will not be borrowed if their application would be inconsistent with the underlying policies of the federal statute." Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 367, 97 S.Ct. 2247, 2454, 53 L.Ed.2d 502.
30
In § 10(b) of the NLRA, Congress established a limitations period attuned to what it viewed as the proper balance between the national interests in stable bargaining relationships and finality of private settlements, and an employee's interest in setting aside what he views as an unjust settlement under the collective-bargaining system. That is precisely the balance at issue in this case. The employee's interest in setting aside the "final and binding" determination of a grievance through the method established by the collective-bargaining agreement unquestionably implicates "those consensual processes that federal labor law is chiefly designed to promote—the formation of the . . . agreement and the private settlement of disputes under it." Hoosier, 383 U.S., at 702, 86 S.Ct., at 1111. Accordingly, "[t]he need for uniformity" among procedures followed for similar claims, ibid.,7 as well as the clear congressional indication of the proper balance between the interests at stake, counsels the adoption of § 10(b) of the NLRA as the appropriate limitations period for lawsuits such as this.
C
31
Because the respondent employee commenced his suit beyond the 6-month bar of § 10(b) of the NLRA, I agree that the judgment of the Court of Appeals must be reversed.
32
Justice STEVENS, concurring in part and dissenting in part.
33
In this action, the plaintiff-employee seeks a judicial remedy against his former employer for wrongful discharge, and against his union for breach of the duty of fair representation. The District Court granted summary judgment in favor of both defendants because of the employee's failure to file suit within what that court viewed as the appropriate period of limitations. The Court of Appeals reversed the District Court's judgment as to both claims and remanded for further proceedings. The employer alone sought further review in this Court. Therefore, at this stage of the litigation, the only question properly presented for our consideration is whether the Court of Appeals chose the most appropriate New York statute of limitations to govern the employee's claim against his former employer for wrongful discharge.1 Although I agree for the most part with the Court's resolution of that question, I fear that its failure expressly to limit its reasoning to the narrow question presented in this case may suggest that today's decision also resolves the question whether the same statute of limitations governs the employee's claim against the union for breach of the duty of fair representation. That interpretation, although understandable in light of the broad language of the Court's opinion, would be inconsistent with the procedural posture of this case and, in addition, would be conceptually unsound.
34
I concur in the Court's conclusion that it is appropriate, for purposes of federal labor law, to characterize the employee's suit against his employer as an action to set aside an arbitration award. In the arbitration proceeding that took place prior to this litigation, the employer prevailed on the precise claim respondent raises against it in this judicial proceeding—that the discharge violated the collective-bargaining agreement. If the employee now were to prevail against the employer on this claim, the necessary effect of the resulting court order would be to undo the arbitration award. See ante, at 61. Accordingly, in upholding the employer's position, the Court properly emphasizes the importance of the finality and certainty of arbitration in the collective-bargaining context, and properly treats the adverse arbitration decision as a substantial obstacle to the employee's pursuit of judicial relief against his employer.
35
The employee's claim against his union for breach of the duty of fair representation, however, is of a far different character. Although this claim is closely related to the claim against the employer, the two claims are nonetheless conceptually distinct.2 The claim against the union may not, in my judgment, be characterized as an action to vacate an arbitration award. The arbitration proceeding did not, and indeed, could not,3 resolve the employee's claim against the union. Although the union was a party to the arbitration, it acted only as the employee's representative; the Joint Panel did not address or resolve any dispute between the employee and the union. Therefore, with respect to the employee's action against the union, the finality and certainty of arbitration are not threatened by the prospect that the employee might prevail on his judicial claim. Because no arbitrator has decided the primary issue presented by this claim, no arbitration award need be undone, even if the employee ultimately prevails.4
36
The employee's claim against his union is properly characterized, not as an action to vacate an arbitration award, but rather as a malpractice claim. There is no conceptual reason why that claim may not survive even if the employer is able to rely on the arbitration award as a conclusive determination of its obligations under the collective-bargaining agreement.5 Thus, by analogy, a lawyer who negligently allows the statute of limitations to run on his client's valid claim may be liable to his client even though the original defendant no longer has any exposure. Cf. Smart v. Ellis Trucking Co., 580 F.2d 215, 218-219 (CA6 1978), cert. denied, 440 U.S. 958, 99 S.Ct. 1497, 59 L.Ed.2d 770.
37
In this case, I agree with the Court that the statute of limitations applicable to respondent's claim against his former employer is the 90-day statute governing actions to vacate or modify arbitration awards in New York.6 It surely does not follow, however, that that statute is applicable to the claim against the union for breach of its duty of fair representation.7 Because the union did not seek review of the judgment of the Court of Appeals, it is not appropriate to decide what period of limitations should be applied to the employee's claim against it. It is, however, noteworthy that Justice Stewart's proposal that we strain to conclude that Congress intended that § 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b),8 be applied to causes of action that this Court had not yet divined when § 10(b) was enacted,9 cf. Watt v. Alaska, 451 U.S. 259, 276, 101 S.Ct. 1673, 1683, 68 L.Ed.2d 80 (Stewart, J., dissenting), rests on a rationale that might apply to a § 301 claim against the union, but which is wholly inapplicable to the claim against the employer, because the employer is not accused of any unfair labor practice.
38
In sum, I concur in the Court's judgment insofar as it pertains to the employee's action against his employer.
1
A direct conflict in the Circuits developed when the Third Circuit, confronted with the present question, borrowed the 3-month period contained in Pennsylvania's arbitration statute, reversing a District Court decision borrowing the State's 6-year period for actions upon a contract. Liotta v. National Forge Co., 629 F.2d 903 (1980), cert. pending, No. 80-890.
2
Amicus the American Federation of Labor and Congress of Industrial Organizations has filed a brief arguing that, in cases such as the present, courts should apply the 6-month limitations period found in § 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b). The AFL-CIO distinguishes the above-quoted language from Hoosier Cardinal on the ground that Hoosier Cardinal involved a § 301 action by a union against an employer, while actions brought by employees against both their union and employer pursuant to our decisions in Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), and Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976), are hybrid § 301 breach-of-duty actions, the union's duty being implied from the NLRA. We decline to consider this argument since it was not raised by either of the parties here or below. See Bell v. Wolfish, 441 U.S. 520, 532, n.13, 99 S.Ct. 1861, 1870, n.3, 60 L.Ed.2d 447 (1979); Knetsch v. United States, 364 U.S. 361, 370, 81 S.Ct. 132, 137, 5 L.Ed.2d 128 (1960). Our grant of certiorari was to consider which state limitations period should be borrowed, not whether such borrowing was appropriate. See Pet. for Cert. i. The parties have considered the question as being limited to which state limitations period to borrow. See, e. g., Brief for Petitioner 8; Brief for Respondent 11. Since respondent filed his complaint beyond the 6-month period, the same result would obtain in this case were we to adopt the AFL-CIO's position.
3
The Court of Appeals declined to borrow the limitations period for actions to vacate an arbitration award in part because of its view that discharged employees could not institute such actions under New York law, see In re Soto, 7 N.Y.2d 397, 198 N.Y.S.2d 282, 165 N.E.2d 855 (1960). 624 F.2d 394, 398 (1980). The fact that an employee could not bring a direct suit to vacate an arbitration award, however, does not mean that his § 301 claim, which if successful would have the same effect is not "closely analogous" to such an action. See Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 464, 95 S.Ct. 1716, 1722, 44 L.Ed.2d 295 (1975).
4
Respondent suggests Hines actions might also be characterized as actions upon a statute, personal injury actions, or malpractice actions, all governed by a 3-year limitations period in New York, N.Y.Civ.Prac.Law §§ 214(2), 214(5), 214(6) (McKinney 1972). All of these characterizations suffer from the same flaw as the effort to characterize the action as one for breach of contract: they overlook the fact that an arbitration award stands between the employee and any relief which may be awarded against the company.
5
New York is typical in providing a relatively short limitations period for actions to vacate arbitration awards. Of 42 States with specific limitations periods for such actions, 28 have a period of 90 days, 9 have shorter periods, 2 longer, and 3 States have periods based on the term of court. See App. to Pet. for Cert. A18-A19. The Federal Arbitration Act, 9 U.S.C. § 12, provides a limitations period of three months.
The particular choice made in Hoosier Cardinal to borrow the limitations period for oral contracts is not binding in this case, not only because the issue in Hoosier Cardinal was between a 6-year period for oral contracts and a 20-year period for written contracts, but also because the claim in Hoosier Cardinal was not one to overturn an arbitration award.
1
But see ante, at 60, n. 2.
2
The Court has recognized on numerous occasions that "[t]he duty of fair representation is . . . implicit in the National Labor Relations Act." See, e. g., Electrical Workers v. Foust, 442 U.S. 42, 46, n. 8, 99 S.Ct. 2121, 2125, n. 8, 60 L.Ed.2d 698. The Court first recognized the statutory duty of fair representation in Steele v. Louisville & Nashville R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173, a case arising under the Railway Labor Act, but in a series of decisions beginning with Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048, the Court concluded that the duty of fair representation applies equally to the NLRA. The Court explained the derivation of the principle in Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 563-564, 96 S.Ct. 1048, 1055-56.
"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, 97 L.Ed. 1048] (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, 367, 11 L.Ed.2d 370] (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] (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, at 342 [84 S.Ct., at 367].
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, at 338," [73 S.Ct., at 686.] That this duty of fair representation under the NLRA may be judicially enforced was made clear in Vaca v. Sipes, 386 U.S. 171, [87 S.Ct. 903, 17 L.Ed.2d 842].
3
This Court has not decided whether all breaches of the duty of fair representation necessarily constitute unfair labor practices under §§ 8(b)(1)(A) and (b)(2) of the NLRA. In Miranda Fuel Co., 140 N.L.R.B. 181, the Board ruled that all violations of the duty of fair representation are unfair labor practices either under § 8(b)(2) or under § 8(b)(1)(A). In Vaca v. Sipes, supra, the Court found it unnecessary to decide whether Miranda Fuel was correctly decided, but simply "assume[d] for present purposes" that the Board had been correct. 386 U.S., at 186, 87 S.Ct., at 914. The three concurring Justices in Vaca v. Sipes, however, stated that "a complaint by an employee that the union has breached its duty of fair representation . . . is a charge of unfair labor practice." Id., at 198, 87 S.Ct., at 921. And a majority of the Courts of Appeals have concluded that breach of the fair representation duty is an unfair labor practice. See Newport News Shipbuilding Co. v. NLRB, 631 F.2d 263 (CA4); Abiline Sheet Metal, Inc. v. NLRB, 619 F.2d 332, 347 (CA5); NLRB v. American Postal Workers Union, 618 F.2d 1249, 1254-1255 (CA8); Kesner v. NLRB, 532 F.2d 1169, 1173-1174 (CA7); Kling v. NLRB, 503 F.2d 1044 (CA9); Truck Drivers v. NLRB, 126 U.S.App.D.C. 360, 379 F.2d 137; cf. Denver Stereotypers v. NLRB, 623 F.2d 134, 136 (CA10). But see NLRB v. Miranda Fuel Co., 326 F.2d 172, 175-178 (CA2) (Judge Medina took the position that the Board had incorrectly held violation of the duty of fair representation to be an unfair labor practice; Judge Lumbard, concurring, did not reach that question; Judge Friendly dissented). Even if there are some breaches of the representation duty that are not unfair labor practices under the NLRA, § 10(b) is, I believe, the proper source for determining when claims of breach of duty must be raised. For that limitations period is a clear indication of Congress' judgment of when claims of a very similar or identical character must be brought.
4
Concededly, the terms of § 10(b) are directed to the administrative procedures provided by Congress to resolve unfair labor practices. But the fact that Congress did not provide a limitations period for a judicially enforceable action later found implied in the NLRA is not comparable to a congressional failure to establish a time limitation for an action it expressly creates by statute. Cf. Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 367, 97 S.Ct. 2447, 2454, 53 L.Ed.2d 502. In any case, it cannot reasonably be assumed here that congressional silence reflects an intent to apply state statutes of limitation for an action based in part on rights and obligations traceable to the NLRA.
5
The charge by the employees in Machinists was against the formation of a collective-bargaining agreement. Here the complaint is with the agreement's administration. But § 8(d) of the NLRA defines the collective bargaining required by the Act to include grievance procedures as a part of the continuing collective-bargaining process. See NLRB v. Acme Industrial Co., 385 U.S. 432, 436, 87 S.Ct. 565, 568, 17 L.Ed.2d 495; 29 U.S.C. § 158(d).
6
The Court held in Machinists v. NLRB, 362 U.S. 411, 422, 80 S.Ct. 822, 829, 4 L.Ed.2d 832, that "a finding of violation which is inescapably grounded on events predating the limitations period is directly at odds with the purposes of the § 10(b) [time limit]."
7
The need for speedy and final resolution of labor disputes, preferably without recourse to the courts—identified by the Court today in support of its preference for the shorter of the possible state limitations periods, ante, at 63, 64—also supports adoption of the relatively short period of § 10(b).
1
The union did not petition for review of the Court of Appeals' decision, and the employer has not taken a position with respect to which statute of limitations governs the employee's claim against the union. Indeed, the employer has vigorously denied that this question is presented in this case:
"[T]he only question raised in the petition for certiorari is the statute of limitations applicable to Mitchell's claim against his employer, UPS. See Liotta v. National Forge Co., 629 F.2d 903 (3d Cir. 1980).
* * * * *
"The fact that Mitchell may have a claim against the Union does not affect the determination of which statute of limitations governs his claim against his employer. See Liotta v. National Forge Co., supra, 629 F.2d at 905." Reply Brief for Petitioner 3, 4.
See also Id., at 5-6.
2
The claims are closely related because, to prevail against the employer, the employee must establish that the union breached its duty of fair representation and that the employer breached the collective-bargaining agreement; similarly, to prevail against the union, the employee must prove that the union breached its duty of fair representation and, if he wishes to recover loss-of-employment damages for which the union is responsible, that the employer breached the agreement. See n. 4, infra. Cf. Czosek v. O'Mara, 397 U.S. 25, 28-29, 90 S.Ct. 770, 772-73, 25 L.Ed.2d 21. However, despite this close relationship, the two claims are not inseparable. Indeed, although the employee in this case chose to sue both the employer and the union, he was not required to do so; he was free to institute suit against either one as the sole defendant. See Vaca v. Sipes, 386 U.S. 171, 186-187, 87 S.Ct. 903, 914-15, 17 L.Ed.2d 842.
3
By its very nature, the employee's claim that the union breached its duty of fair representation cannot be resolved in an arbitration proceeding because it arises out of the conduct of that proceeding itself.
4
While an arbitration decision favorable to the employer for example, that the discharge did not breach the collective-bargaining agreement—would be of substantial significance in an employee's suit against his union, it would not necessarily be dispositive. The determination whether the employer breached the agreement may be highly relevant to the amount of damages caused by the union's alleged breach of duty, but it is not necessarily controlling with respect to the threshold question whether there was any breach of duty by the union at all. For example, if, solely for reasons of racial bias, a union processes a discharged employee's grievance in bad faith, the union breaches its duty of fair representation. Cf. Steele v. Louisville & Nashville R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173. The fact that the underlying discharge may not have violated the collective-bargaining agreement does not necessarily absolve the union of liability for its breach, although it may limit the size of the employee's recovery against the union. Thus, while a court considering an employee's claim against a union will evaluate the validity of the employer's underlying conduct, that evaluation is not central to the resolution of the duty-of-fair-representation claim.
5
In Liotta v. National Forge Co., 629 F.2d 903 (CA3 1980), cert. pending, No. 80-890, the Court of Appeals concluded that the Pennsylvania statute of limitations governing actions to vacate arbitration awards should apply to an employee's § 301 action against his employer for wrongful discharge. However, in Liotta the employee had filed suit only against his employer, and not against his union. The Court of Appeals suggested that this fact was of some significance in determining which statute of limitations to apply:
"[T]he fact that Liotta alleges that the arbitration award is invalid due to the Union's breach of its duty of fair representation does not change the limitations period because the suit here is against the Company and not the Union. Thus, it is clear that Liotta was dissatisfied with and simply seeks to upset the arbitrator's decision that the Company did not wrongfully discharge him." 629 F.2d, at 905-906.
6
N.Y.Civ.Prac.Law § 7511(a) (McKinney 1963), quoted ante, at 59. I do not address any question concerning the possible tolling of that period, because no such issue is presented in this case.
7
Under the rationale of Auto Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 704-705, 86 S.Ct. 1107, 1112-13, 16 L.Ed.2d 192 arguably the proper statute of limitations to apply to such a claim would be N.Y.Civ.Prac.Law § 214(6) (McKinney 1972), which governs claims for nonmedical malpractice. Because the question of the appropriate statute of limitations to apply to the employee's claim against his union is not properly presented in this case, I express no definite opinion on the point. I note, however, that the Court dismisses the suggestion that this action may be characterized as a malpractice action with the observation that this characterization "overlook[s] the fact that an arbitration award stands between the employee and any relief which may be awarded against the company." Ante, at 63, n. 4 (emphasis supplied). Because no arbitration award stands between the employee and any relief which may be awarded against the union, this observation is inapplicable to the claim against the union.
8
Section 10(b) of the National Labor Relations Act provides:
"Whenever it is charged that any person has engaged in or is engaging in any such unfair labor practice, the [National Labor Relations] Board, or any agent or agency designated by the Board for such purposes, shall have power to issue and cause to be served upon such person a complaint stating the charges in that respect, and containing a notice of hearing before the Board or a member thereof, or before a designated agent or agency, at a place therein fixed, not less than five days after the serving of said complaint: Provided, That no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made, unless the person aggrieved thereby was prevented from filing such charge by reason of service in the armed forces, in which event the six-month period shall be computed from the day of his discharge. Any such complaint may be amended by the member, agent, or agency conducting the hearing or the Board in its discretion at any time prior to the issuance of an order based thereon. The person so complained of shall have the right to file an answer to the original or amended complaint and to appear in person or otherwise and give testimony at the place and time fixed in the complaint. In the discretion of the member, agent, or agency conducting the hearing or the Board, any other person may be allowed to intervene in the said proceeding and to present testimony. Any such proceeding shall, so far as practicable, be conducted in accordance with the rules of evidence applicable in the district courts of the United States under the rules of civil procedure for the district courts of the United States, adopted by the Supreme Court of the United States pursuant to section 2072 of title 28." 29 U.S.C. § 160(b).
The plain language of this statute indicates that it is directed solely to the administrative procedure established by Congress in the National Labor Relations Act for the resolution of unfair labor practice charges arising under, and processed in accordance with, that Act. Nothing in the statutory language suggests that Congress intended that this 6-month limitations period be applied in any other context.
9
The National Labor Relations Act was enacted in 1935. 49 Stat. 449. Although § 10(b) was a part of the Act at that time, in its original form it did not contain a period of limitations. 49 Stat. 453-454. The 6-month limitations period upon which Justice Stewart relies was added to § 10(b) in 1947. 61 Stat. 146. Six years later, the Court decided the first in a series of cases recognizing that the National Labor Relations Act imposes a duty of fair representation upon unions. See Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048. In 1967, in Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842, the Court clearly held that this duty may be judicially enforced. See generally Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 563-567, 96 S.Ct. 1048, 1055-1057, 47 L.Ed.2d 231.
| 67
|
451 U.S. 100
101 S.Ct. 1584
67 L.Ed.2d 769
CITY OF MEMPHIS et al., Petitioners,v.N. T. GREENE et al.
No. 79-1176.
Argued Dec. 3, 1980.
Decided April 20, 1981.
Rehearing Denied June 15, 1981.
See 452 U.S. 955, 101 S.Ct. 3100.
Syllabus
The city of Memphis decided to close the north end of a street (West Drive) that traverses a white residential community (Hein Park), the area to the north of which is predominantly black. West Drive is one of three streets that enter Hein Park from the north. The stated reasons for the closing were to reduce the flow of traffic using Hein Park streets, to increase safety to children who live in Hein Park or use it to walk to school, and to reduce "traffic pollution" in the residential area. Respondents, residents of the predominantly black area, and two civic associations brought a class action in Federal District Court against the city and various officials, alleging that the street closing violated 42 U.S.C. § 1982—which entitles all citizens to "have the same right . . . as is enjoyed by white citizens . . . to inherit, purchase, lease, sell, hold, and convey real and personal property"—and also violated the Thirteenth Amendment, as constituting "a badge of slavery." Ultimately, the District Court entered judgment for the defendants, holding that the street closing did not create a benefit for white citizens which was denied black citizens, that racially discriminatory intent or purpose had not been proved, and that the city had not departed significantly from normal procedures in authorizing the closing. The Court of Appeals reversed and remanded, holding that the street closing was invalid because it adversely affected respondents' ability to hold and enjoy their property. The court concluded that relief under § 1982 was required by the facts (1) that the closing would benefit a white neighborhood and adversely affect blacks; (2) that a barrier was to be erected at the point of separation of the white and black neighborhoods and would have the effect of limiting contact between them; (3) that the closing was not part of a citywide plan but rather was a "unique step to protect one neighborhood from outside influences which the residents considered to be 'undesirable' "; and (4) that there was evidence of economic depreciation in the property values in the predominantly black area.
Held :
1. The record and the District Court's findings do not support the Court of Appeals' conclusions. Pp. 110-119. 2. The street closing did not violate § 1982. The evidence failed to show that the street closing would prevent blacks from exercising the same property rights as whites, that it depreciated the value of blacks' property, or that it severely restricted access to black homes. Rather, the record discloses that respondents' only injury is the requirement that one street rather than another must be used for certain trips within the city. Such an injury does not involve any impairment to the kind of property interests identified as being within the reach of § 1982. Pp. 120-124.
3. Nor did the street closing violate the Thirteenth Amendment. A review of the justification for the closing demonstrates that its disparate impact on black citizens could not be fairly characterized as a badge or incident of slavery. The record discloses no discriminatory motive on the city's part, but rather that the interests of safety and tranquility that motivated the closing are legitimate. Such interests are sufficient to justify an adverse impact on motorists who are somewhat inconvenienced by the street closing. That inconvenience cannot be equated to an actual restraint on liberty of black citizens that is in any sense comparable to the odious practice the Thirteenth Amendment was designed to eradicate. Pp. 124-129.
6th Cir., 610 F.2d 395, reversed.
Clifford D. Pierce, Jr., Memphis, Tenn., for petitioners.
Alvin O. Chambliss, Jr., Memphis, Tenn., for respondents.
Justice STEVENS delivered the opinion of the Court.
1
The question presented is whether a decision by the city of Memphis to close the north end of West Drive, a street that traverses a white residential community, violated § 1 of the Civil Rights Act of 1866, Rev.Stat. § 1978, 42 U.S.C. § 1982, or the Thirteenth Amendment to the United States Constitution.1 The city's action was challenged by respondents, who resided in a predominantly black area to the north. The Court of Appeals ultimately held the street closing invalid because it adversely affected respondents' ability to hold and enjoy their property. 6th Cir., 610 F.2d 395. We reverse because the record does not support that holding.
2
* Most of the relevant facts concerning the geography, the decision to close the street, and the course of the litigation are not in dispute. The inferences to be drawn from the evidence, however, are subject to some disagreement.
A. Geography
3
Hein Park, a small residential community in Memphis, Tenn., is bounded on three sides by thoroughfares and on the west by the campus of Southwestern University. West Drive is a two-lane street about a half-mile long passing through the center of Hein Park. Its southern terminus is a short distance from an entrance to Overton Park, a large recreation area containing, among other facilities, the municipal zoo.2 Its northern terminus is at the intersection of Jackson Ave. and Springdale St., two heavily traveled four-lane avenues. West Drive is one of three streets that enter Hein Park from the north; two streets enter from the east.
4
The closing will have some effect on both through traffic and local traffic. Prior to the closing, a significant volume of traffic southbound on Springdale St. would continue south on West Drive and then—because of the location of Overton Park to the south of Hein Park—make either a right or a left turn to the next through street a few blocks away, before resuming the southerly route to the center of the city. The closing of West Drive will force this traffic to divert to the east or west before entering Hein Park, instead of when it leaves, but the closing will not make the entire route any longer. With respect to local traffic, the street closing will add some distance to the trip from Springdale St. to the entrance to Overton Park and will make access to some homes in Hein Park slightly less convenient.
5
The area to the north of Hein Park is predominantly black. All of the homes in Hein Park were owned by whites when the decision to close the street was made.
B. City Approval
6
In 1970, residents of Hein Park requested the city to close four streets leading into the subdivision. After receiving objections from the police, fire, and sanitation departments, the city denied the request.3 In its report regarding the application the city's Traffic Engineering Department noted that much of the traffic through the subdivision could be eliminated by closing West Drive at Jackson Ave. Trial Exhibit 14. Thereafter, on July 9, 1973, members of the Hein Park Civic Association filed with the Memphis and Shelby County Planning Commission a formal "Application to Close Streets or Alleys" seeking permission to close West Drive for 25 feet south of Jackson Ave. See Trial Exhibit 13, App. 135. The application was signed by the two property owners abutting both Jackson Ave. and West Drive and all but one of the other West Drive homeowners on the block immediately south of Jackson Ave. Ibid.4 The stated reasons for the closing were:
7
"(1) Reduce flow of through traffic using subdivision streets.
8
"(2) Increase safety to the many children who live in the subdivision and those who use the subdivision to walk to Snowden Junior High School.
9
"(3) Reduce 'traffic pollution' in a residential area, e.g., noise, litter, interruption of community living." Ibid., Trial Exhibit 13.
10
After receiving the views of interested municipal departments, the County Planning Commission on November 1, 1973, recommended that the application be approved with the conditions that the applicants provide either an easement for existing and future utility company facilities or the funds to relocate existing facilities and that the closure provide clearance for fire department vehicles. Trial Exhibit 4, App. 130. The City Council held a hearing at which both proponents and opponents of the proposal presented their views, and the Council adopted a resolution authorizing the closing subject to the conditions recommended by the Planning Commission. See Trial Exhibit 26. The city reconsidered its action and held additional hearings on later dates but never rescinded its resolution.5 See Trial Exhibits 27-30, 41.
11
In a complaint filed against the city and various officials in the United States District Court for the Western District of Tennessee on April 1, 1974, three individuals and two civic associations, suing on behalf of a class of residents north of Jackson Ave. and west of Springdale St., alleged that the closing was unconstitutional and prayed for an injunction requiring the city to keep West Drive open for through traffic.6 The District Court granted a motion to dismiss, holding that the complaint, as amended, failed to allege any injury to the plaintiffs' own property or any disparate racial effect,7 and that they had no standing as affected property owners to raise procedural objections to the city's action.8
12
The United States Court of Appeals for the Sixth Circuit reversed. The court first noted that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which will entitle him to relief." 535 F.2d 976, 978. The court concluded that respondents' complaint, fairly construed, alleged that the city had conferred certain benefits—"to wit, the privacy and quiet of an exclusive dead-end street"—on white residents that it refused to confer on similarly situated black residents. Ibid. Accordingly, the court held that if respondents could prove that city officials conferred the benefit of a closed street on West Drive residents "because of their color," respondents would have a valid claim under either 42 U.S.C. § 1982 or § 1983. 535 F.2d., at 979.9
13
Following the remand, the case was transferred to Judge McRae for trial. Respondents amended their pleadings and, in pretrial discovery, reviewed all street closings in Memphis during the prior 10-year period as well as the entire record concerning the closing of West Drive. An elaborate pretrial order entered on February 9, 1978, identified three contested issues of fact:
14
"(a) Whether the defendants, by closing West Drive, have conferred certain benefits on white residents of West Drive that they have refused to confer on similarly situated black neighborhoods because of their color.
15
"(b) Whether a discriminatory purpose was a motivating factor in the decision of the City Council to close West Drive.
16
"(c) Whether the defendants and their agents complied with the normal procedural sequence in processing the application to close a portion of West Drive. If not, the extent to which they failed to comply." App. 87.
17
After a full trial Judge McRae filed a detailed memorandum decision in which he found against the respondents on each of the three contested issues of fact. He specifically concluded that the action of the City Council closing West Drive "did not create a benefit for white citizens which has been denied black citizens";10 that racially discriminatory intent or purpose had not been proved;11 and that the city had not departed significantly from normal procedures in authorizing the closing.12 Accordingly, the District Court entered judgment for the city.
18
The Court of Appeals did not reject any of the District Court's findings of fact. The Court of Appeals did hold, however, that Judge McRae had erred by limiting his focus to the issue of whether the city had granted a street closing application made by whites while denying comparable benefits to blacks. 610 F.2d, at 400-401. Although the Court of Appeals recognized that the reasoning of its earlier opinion could have induced such a narrow focus, and that the record supported Judge McRae's findings on this issue, the court held that the respondents need not show that the city had denied street-closing applications submitted by black neighborhoods to show a violation of § 1982. 610 F.2d, at 400402. Rather, the court held that respondents could demonstrate that this particular street closing was a "badge of slavery" under § 1982 and the Thirteenth Amendment without reference to the equal treatment issue.13
19
The Court of Appeals recognized that a street closing may be a legitimate and effective means of preserving the residential character of a neighborhood and protecting it from the problems caused by excessive traffic. 610 F.2d, at 402. The Court of Appeals concluded, however, that relief under § 1982 was required here by the facts: (1) that the closing would benefit a white neighborhood and adversely affect blacks; (2) that a "barrier was to be erected precisely at the point of separation of these neighborhoods and would undoubtedly have the effect of limiting contact between them"; (3) that the closing was not part of a city wide plan but rather was a "unique step to protect one neighborhood from outside influences which the residents considered to be 'undesirable' "; and (4) that there was evidence of "an economic depreciation in the property values in the predominantly black residential area."14 Before addressing the legal issues, we consider the extent to which each of these conclusions is supported by the record and the District Court's findings.
20
The first of the four factual predicates for the Court of Appeals' holding relates to the effect of the closing on black residents and is squarely rooted in the District Court's findings. Judge McRae expressly found that the City Council action "will have disproportionate impact on certain black citizens." App. 161. He described the traffic that will be diverted by the closing as "overwhelming black," ibid., and noted that the white residents of West Drive will have less inconvenience.15 We must note, however, that although neither Judge McRae nor the Court of Appeals focused on the extent of the inconvenience to residents living north of Jackson Ave., the record makes it clear that such inconvenience will be minimal. A motorist southbound on Springdale St. could continue south on West Drive for only a half mile before the end of West Drive at Overton Park would necessitate a turn.16 Thus unless the motorist is going to Overton Park, the only effect of the street closing for traffic proceeding south will be to require a turn sooner without lengthening the entire trip or requiring any more turns.17 Moreover, even the motorist going to Overton Park had to make a turn from West Drive and a short drive down North Parkway to reach the entrance to the park. The entire trip from Springdale St. to the park will be slightly longer with West Drive closed, but it will not be significantly less convenient.18 Thus although it is correct that the motorists who will be inconvenienced by the closing are primarily black, the extent of the inconvenience is not great.
21
As for the Court of Appeals' second point, the court attached greater significance to the closing as a "barrier" between two neighborhoods than appears warranted by the record. The physical barrier is a curb that will not impede the passage of municipal vehicles.19 Moreover, because only one of the several streets entering Hein Park is closed to vehicular traffic, the other streets will provide ample access to the residences in Hein Park.20 The diversion of through traffic around the Hein Park residential area affects the diverted motorists, but does not support the suggestion that such diversion will limit the social or commercial contact between residents of neighboring communities.21
22
The Court of Appeals' reference to protecting the neighborhood from "undesirable" outside influences may be read as suggesting that the court viewed the closure as motivated by the racial attitude of the residents of Hein Park. The District Court's findings do not support that view of the record. Judge McRae expressly discounted the racial composition of the traffic on West Drive in evaluating its undesirable character; he noted that "excessive traffic in any residential neighborhood has public welfare factors such as safety, noise, and litter, regardless of the race of the traffic and the neighborhood." App. 161. The transcript of the City Council hearings indicates that the residents of West Drive perceived the traffic to be a problem because of the number and speed of the cars traveling down West Drive.22 Even if the statements of the residents of West Drive are discounted as self-serving, there is no evidence that the closing was motivated by any racially exclusionary desire.23 The City Council members who favored the closing expressed concerns similar to those of the West Drive residents.24 Those who opposed the resolution did so because they believed that a less drastic response to the traffic problems would be adequate and that the closing would create a dangerous precedent.25 The one witness at trial who testified that "someone" soliciting signatures for a petition favoring the closure had described the traffic on West Drive as "undesirable traffic," stated that the solicitor mentioned excess traffic and danger to children as reasons for signing.26 Unlike the Court of Appeals we therefore believe that the "undesirable" character of the traffic flow must be viewed as a factor supporting, rather than undermining, the validity of the closure decision. To the extent that the Court of Appeals' opinion can be read as making a finding of discriminatory intent, the record requires us to reject that finding in favor of the District Court's contrary conclusion. Judge McRae expressly found that the respondents had not proved that the City Council had acted with discriminatory intent. App. 161.27
23
Finally, the Court of Appeals was not justified in inferring that the closure would cause "an economic depreciation in the property values in the predominantly black residential area. . . ." 610 F.2d, at 304. The only expert testimony credited by the District Court on that issue was provided by a real estate broker called by the plaintiffs.28 His expert opinion, as summarized by the District Court, was that "there would not be a decrease in value experienced by property owners located to the north of West Drive because of the closure." App. 155. After the witness had expressed that opinion, he admittedly speculated that some property owners to the north might be envious of the better housing that they could not afford and therefore might be less attentive to the upkeep of their own property, which in turn "could have a detrimental effect on the property values in the future."29 In our opinion the District Court correctly refused to find an adverse impact on black property values based on that speculation.30
24
In summary, then, the critical facts established by the record are these: The city's decision to close West Drive was motivated by its interest in protecting the safety and tranquility of a residential neighborhood. The procedures followed in making the decision were fair and were not affected by any racial or other impermissible factors. The city has conferred a benefit on certain white property owners but there is no reason to believe that it would refuse to confer a comparable benefit on black property owners. The closing has not affected the value of property owned by black citizens, but it has caused some slight inconvenience to black motorists.
II
25
Under the Court's recent decisions in Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 and Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450, the absence of proof of discriminatory intent forecloses any claim that the official action challenged in this case violates the Equal Protection Clause of the Fourteenth Amendment. Petitioners ask us to hold that respondents' claims under § 1982 and the Thirteenth Amendment are likewise barred by the absence of proof of discriminatory purpose. We note initially that the coverage of both § 1982 and the Thirteenth Amendment is significantly different from the coverage of the Fourteenth Amendment. The prohibitions of the latter apply only to official action, or, as implemented by 42 U.S.C. § 1983 (1976 ed., Supp.III), to action taken under color of state law. We have squarely decided, however, that § 1982 is directly applicable to private parties, Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189; cf. Runyon v. McCrary, 427 U.S. 160, 170-174, 96 S.Ct. 2586, 2594-96, 49 L.Ed.2d 415; and it has long been settled that the Thirteenth Amendment "is not a mere prohibition of State laws establishing or upholding slavery, but an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States." Civil Rights Cases, 109 U.S. 3, 20, 3 S.Ct. 18, 27, 27 L.Ed. 835. Thus, although respondents challenge official action in this case, the provisions of the law on which the challenge is based cover certain private action as well. Rather than confront prematurely the rather general question whether either § 1982 or the Thirteenth Amendment requires proof of a specific unlawful purpose, we first consider the extent to which either provision applies at all to this street closing case. We of course deal first with the statutory question.
III
Section 1982 provides:
26
"All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property."
27
To effectuate the remedial purposes of the statute, the Court has broadly construed this language to protect not merely the enforceability of property interests acquired by black citizens but also their right to acquire and use property on an equal basis with white citizens. Thus, in Hurd v. Hodge, 334 U.S. 24, 68 S.Ct. 847, 92 L.Ed. 1187, the Court refused to permit enforcement of private covenants imposing racial restrictions on the sale of property even though the legal rights of blacks to purchase or to sell other property were unimpaired.31 In Jones, supra, we held that § 1982 "must encompass every racially motivated refusal to sell or rent." 392 U.S., at 421-422, 88 S.Ct., at 2193, 2194.32 In Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 90 S.Ct. 400, 24 L.Ed.2d 386, we interpreted the term "lease" in § 1982 to include an assignable membership share in recreational facilities.33 In Tillman v. Wheaton-Haven Recreation Assn., Inc., 410 U.S. 431, 93 S.Ct. 1090, 35 L.Ed.2d 403, we extended that holding to cover a preference to purchase a nontransferable swim club membership.34 Although these cases broadly defined the property rights protected by § 1982, our cases, like the statutory language itself, all concerned the right of black persons to hold and acquire property on an equal basis with white persons and the right of blacks not to have property interests impaired because of their race.35
28
Therefore, as applied to this case, the threshold inquiry under § 1982 must focus on the relationship between the street closing and the property interests of the respondents. As the Court of Appeals correctly noted in its first opinion, the statute would support a challenge to municipal action benefiting white property owners that would be refused to similarly situated black property owners. For official action of that kind would prevent blacks from exercising the same property rights as whites. But respondents' evidence failed to support this legal theory. Alternatively, as the Court of Appeals held in its second opinion, the statute might be violated by official action that depreciated the value of property owned by black citizens. But this record discloses no effect on the value of property owned by any member of the respondent class. Finally, the statute might be violated if the street closing severely restricted access to black homes, because blacks would then be hampered in the use of their property. Again, the record discloses no such restriction.36
29
The injury to respondents established by the record is the requirement that one public street rather than another must be used for certain trips within the city. We need not assess the magnitude of that injury to conclude that it does not involve any impairment to the kind of property interests that we have identified as being within the reach of § 1982. We therefore must consider whether the street closing violated respondents' constitutional rights.
IV
30
In relevant part, the Thirteenth Amendment provides:
31
"Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."
32
In this case respondents challenge the conferring of a benefit upon white citizens by a measure that places a burden on black citizens as an unconstitutional "badge of slavery." Relying on Justice Black's opinion for the Court in Palmer v. Thompson, 403 U.S. 217, 91 S.Ct. 1940, 29 L.Ed.2d 438, the city argues that in the absence of a violation of specific enabling legislation enacted pursuant to § 2 of the Thirteenth Amendment, any judicial characterization of an isolated street closing as a badge of slavery would constitute the usurpation of "a law-making power far beyond the imagination of the amendment's authors." Id., at 227, 91 S.Ct., at 1946.37
33
Pursuant to the authority created by § 2 of the Thirteenth Amendment, Congress has enacted legislation to abolish both the conditions of involuntary servitude and the "badges and incidents of slavery."38 The exercise of that authority is not inconsistent with the view that the Amendment has self-executing force. As the Court noted in Jones v. Alfred H. Mayer Co., 392 U.S., at 439, 88 S.Ct., at 2203:
34
" 'By its own unaided force and effect,' the Thirteenth Amendment 'abolished slavery' and 'established universal freedom.' Civil Rights Cases, 109 U.S. 3, 20, 3 S.Ct. 18, 27, 27 L.Ed.2d 835. Whether or not the Amendment itself did any more than that—a question not involved in this case—it is at least clear that the Enabling Clause of that Amendment empowered Congress to do much more."39
35
In Jones, the Court left open the question whether § 1 of the Amendment by its own terms did anything more than abolish slavery.40 It is also appropriate today to leave that question open because a review of the justification for the official action challenged in this case demonstrates that its disparate impact on black citizens could not, in any event, be fairly characterized as a badge or incident of slavery.
36
We begin our examination of respondents' Thirteenth Amendment argument by reiterating the conclusion that the record discloses no racially discriminatory motive on the part of the City Council.41 Instead, the record demonstrates that the interests that did motivate the Council are legitimate. Proper management of the flow of vehicular traffic within a city requires the accommodation of a variety of conflicting interests: the motorist's interest in unhindered access to his destination, the city's interest in the efficient provision of municipal services, the commercial interest in adequate parking, the residents' interest in relative quiet, and the pedestrians' interest in safety. Local governments necessarily exercise wide discretion in making the policy decisions that accommodate these interests.
37
In this case the city favored the interests of safety and tranquility. As a matter of constitutional law a city's power to adopt rules that will avoid anticipated traffic safety problems is the same as its power to correct those hazards that have been revealed by actual events. The decision to reduce the flow of traffic on West Drive was motivated, in part, by an interest in the safety of children walking to school.42 That interest is equally legitimate whether it provides support for an arguably unnecessary preventive measure or for a community's reaction to a tragic accident that adequate planning might have prevented. See Thomas Cusack Co. v. Chicago, 242 U.S. 526, 37 S.Ct. 190, 61 L.Ed. 472.
38
The residential interest in comparative tranquility is also unquestionably legitimate. That interest provides support for zoning regulations, designed to protect a "quiet place where yards are wide, people few, and motor vehicles restricted. . . ." Village of Belle Terre v. Boraas, 416 U.S. 1, 9, 94 S.Ct. 1536, 1541, 39 L.Ed.2d 797; Arlington County Board v. Richards, 434 U.S. 5, 98 S.Ct. 24, 54 L.Ed.2d 4, and for the accepted view that a man's home is his castle. The interest in privacy has the same dignity in a densely populated apartment complex, cf. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639, or in an affluent neighborhood of single-family homes.43 In either context, the protection of the individual interest may involve the imposition of some burdens on the general public.
39
Whether the individual privacy interests of the residents of Hein Park, coupled with the interest in safety, should be considered strong enough to overcome the more general interest in the use of West Drive as a thoroughfare is the type of question that a multitude of local governments must resolve every day. Because there is no basis for concluding that the interests favored by the city in its decision were contrived or pretextual, the District Court correctly concluded that it had no authority to review the wisdom of the city's policy decision. See Railway Express Agency, Inc. v. New York, 336 U.S. 106, 109, 69 S.Ct. 463, 465, 93 L.Ed. 533.
40
The interests motivating the city's action are thus sufficient to justify an adverse impact on motorists who are somewhat inconvenienced by the street closing. That inconvenience cannot be equated to an actual restraint on the liberty of black citizens that is in any sense comparable to the odious practice the Thirteenth Amendment was designed to eradicate. The argument that the closing violates the Amendment must therefore rest, not on the actual consequences of the closing, but rather on the symbolic significance of the fact that most of the drivers who will be inconvenienced by the action are black.
41
But the inconvenience of the drivers is a function of where they live and where they regularly drive—not a function of their race; the hazards and the inconvenience that the closing is intended to minimize are a function of the number of vehicles involved, not the race of their drivers or of the local residents. Almost any traffic regulation—whether it be a temporary detour during construction, a speed limit, a one-way street, or a no-parking sign—may have a differential impact on residents of adjacent or nearby neighborhoods. Because urban neighborhoods are so frequently characterized by a common ethnic or racial heritage, a regulation's adverse impact on a particular neighborhood will often have a disparate effect on an identifiable ethnic or racial group. To regard an inevitable consequence of that kind as a form of stigma so severe as to violate the Thirteenth Amendment would trivialize the great purpose of that charter of freedom. Proper respect for the dignity of the residents of any neighborhood requires that they accept the same burdens as well as the same benefits of citizenship regardless of their racial or ethnic origin.
42
This case does not disclose a violation of any of the enabling legislation enacted by Congress pursuant to § 2 of the Thirteenth Amendment. To decide the narrow constitutional question presented by this record we need not speculate about the sort of impact on a racial group that might be prohibited by the Amendment itself. We merely hold that the impact of the closing of West Drive on nonresidents of Hein Park is a routine burden of citizenship; it does not reflect a violation of the Thirteenth Amendment.
The judgment of the Court of Appeals is
43
Reversed.
44
Justice WHITE concurring in the judgment.
45
In this civil rights action, respondents sought relief under the Thirteenth and Fourteenth Amendments as well as under 42 U.S.C. §§ 1982, 1983. The District Court held that while the closure of West Drive in Memphis, Tenn., would have a disproportionate impact upon certain black residents of Memphis, the evidence did not support a finding of a purpose or intent to discriminate. Neither was the disparate impact "so stark that a purpose or intent of racial discrimination" could be inferred. As a consequence, and following instructions from the initial remand, the District Court concluded that respondents had failed to prove a violation of either § 1982 or § 1983.1 The District Court did not specifically address the alleged constitutional violations, but implicitly those allegations fell on the same basis. The Court of Appeals for the Sixth Circuit reversed the District Court's ultimate conclusion that there was no violation of § 1982, but the appellate court did not disturb the trial court's finding that there was no purposeful discrimination. Without explicitly saying so, the Court of Appeals necessarily held that a violation of § 1982 could be established without proof of discriminatory intent.2 The petition for a writ of certiorari sought review of that precise point.
46
We granted review to answer the question presented in the petition for a writ of certiorari. The parties in their briefs proceeded on the same assumption. However, instead of addressing the question which was explicitly presented by the findings and holdings below, raised by the petitioners, granted review by this Court and briefed by the parties, the Court inexplicably assumes the role of factfinder, peruses the cold record, rehashes the evidence, and sua sponte purports to resolve questions that the parties have neither briefed nor argued. It is not surprising that the dissent has taken this same record and interpreted it in quite another way. In any event, rather than becoming involved in the imbroglio between the majority and the dissent, I much prefer as a matter of policy and common sense to answer the question for which we took the case. There is no good reason here to disregard our own Rule 21.1(a), which states that "[o]nly the questions set forth in the petition or fairly included therein will be considered by the Court."
47
We are called upon to determine whether a nonintentional adverse impact upon black citizens is a sufficient basis for relief under 42 U.S.C. § 1982. That statute declares that "[a]ll citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property." Under that language, a person's race is irrelevant to the existence of the declared rights. No person is to be denied the enumerated rights merely because that person is not white. Purposeful racial discrimination is quite clearly the focus of the proscription, and this understanding of § 1982 is supported by the legislative history of the Civil Rights Act of 1866, the enactment from which § 1982 was derived.
48
The Civil Rights Act of 1866, was enacted pursuant to § 2 of the Thirteenth Amendment. That Amendment had been adopted by the States in 1865 after the close of the Civil War. It announced the legal demise of slavery.3 Section 2 of the Amendment provides: "Congress shall have power to enforce this article by appropriate legislation." Although slavery was legally abolished, the Amendment foresaw that specific implementation of its command would be required to eradicate completely the deep-seated institution of slavery. The Civil Rights Act of 1866 was explicitly designed as such a practical measure.
49
When the 39th Congress undertook consideration of the proposed Civil Rights Act of 1866, there was a growing perception that the plight of the southern blacks had not been resolved by the adoption of the Thirteenth Amendment.4 In the words of one contemporary observer: "The general government of the republic has, by proclaiming the emancipation of the slaves, commenced a great social revolution in the south, but has, as yet, not completed it. Only the negative part of it is accomplished. The slaves are emancipated in point of form, but free labor has not yet been put in the place of slavery in point of fact." S.Exec.Doc.No. 2, 39th Cong., 1st Sess., 38 (1865). Individual Southern States had begun enacting the so-called Black Codes,5 which although not technically resurrecting the institution of slavery, were viewed by the Republican Congress as a large step in that direction. See generally H. Flack, Adoption of the Fourteenth Amendment 11-54 (1908). In addition, there was evidence that former slaves were being subjected to serious abuses at the hands of the white majority. See Joint Committee on Reconstruction, H.R.Rep.No. 30, 39th Cong., 1st Sess., xvii and passim (1866). The proposed Civil Rights Act was specifically designed to stem this tide of oppression. See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 426-429, 88 S.Ct. 2186, 2195-97, 20 L.Ed.2d 1189, and nn. 34-45 (1968). Senator Trumbull, sponsor of the bill, made this precise purpose of the Act abundantly clear:
50
"Since the abolition of slavery, the Legislatures which have assembled in the insurrectionary States have passed laws relating to the freedmen, and in nearly all the States they have discriminated against them. They deny them certain rights, subject them to severe penalties, and still impose upon them the very restrictions which were imposed upon them in consequence of the existence of slavery, and before it was abolished. The purpose of the bill under consideration is to destroy all these discriminations, and to carry into effect the constitutional amendment." Cong.Globe, 39th Cong., 1st Sess., 474 (1866).
51
The theme sounded by Senator Trumbull was repeated on numerous occasions during the lengthy floor debates which took place in both Houses of Congress. The supporters of the bill emphasized time and again that the measure was designed to eradicate blatant deprivations of civil rights. See, e. g., id., at 322, 339-340, 474-475, 516-517, 1123, 1151-1152, 1159-1160, 1833-1835. The purpose of the Act was to insure that the abolition of slavery was accomplished in fact as well as theory:
52
"[The Thirteenth Amendment] declared that all persons in the United States should be free. This measure is intended to give effect to that declaration and secure to all persons within the United States practical freedom. There is very little importance in the general declaration of abstract truths and principles unless they can be carried into effect, unless the persons who are to be affected by them have some means of availing themselves of their benefits. . . . And of what avail will it now be that the Constitution of the United States has declared that slavery shall not exist, if in the late slaveholding States laws are to be enacted and enforced depriving persons of African descent of privileges which are essential to freemen?
53
"It is the intention of this bill to secure those rights." Id., at 474 (remarks of Sen. Trumbull).
54
The Civil Rights Act of 1866 thus was a response to the perception held by Congress that former slaves were being denied basic civil rights. The Act would give practical effect to the Thirteenth Amendment. "The bill under consideration is intended only to carry into practical effect the amendment of the Constitution. Its object is to declare not only that slavery shall be abolished upon the pages of your Constitution, but that it shall be abolished in fact and in deed. . . ." Id., at 1152 (remarks of Mr. Thayer). But nothing in the legislative history of this Act suggests that Congress was concerned with facially neutral measures which happened to have an incidental impact on former slaves.6 On the contrary, the theme of the debates surrounding this statute is that the former slaves continued to be subject to direct, intentional abuses at the hands of their former masters. That was the problem Congress intended to address and that focus should determine the reach and scope of this statute. We have no basis for concluding anything other than that a violation of § 1982 requires some showing of racial animus or an intent to discriminate on the basis of race. The Court of Appeals proceeded on a contrary basis and reversed the District Court's judgment without disturbing the District Court's conclusion that no discriminatory purpose had been found. This was error, and for that reason I concur in the judgment of reversal, but would remand for further proceedings not inconsistent with this opinion.
55
Justice MARSHALL, with whom Justice BRENNAN and Justice BLACKMUN join, dissenting.
56
This case is easier than the majority makes it appear. Petitioner city of Memphis, acting at the behest of white property owners, has closed the main thoroughfare between an all-white enclave and a predominantly Negro area of the city. The stated explanation for the closing is of a sort all too familiar: "protecting the safety and tranquility of a residential neighborhood" by preventing "undesirable traffic" from entering it. Too often in our Nation's history, statements such as these have been little more than code phrases for racial discrimination. These words may still signify racial discrimination, but apparently not, after today's decision, forbidden discrimination. The majority, purporting to rely on the evidence developed at trial, concludes that the city's stated interests are sufficient to justify erection of the barrier. Because I do not believe that either the Constitution or federal law permits a city to carve out racial enclaves I dissent.
57
* In order to determine "whether the State 'in any of its manifestations' has become significantly involved in private discriminations," it is necessary to " 'sif[t] facts and weig[h] circumstances' " so that " 'nonobvious involvement of the State in private conduct [can] be attributed its true significance.' " Reitman v. Mulkey, 387 U.S. 369, 378, 87 S.Ct. 1627, 1632, 18 L.Ed.2d 830 (1967), quoting Burton v. Wilmington Parking Authority, 365 U.S. 715, 722, 81 S.Ct. 856, 860, 6 L.Ed.2d 45 (1961). The key to the majority's conclusion is the view that it takes of the facts, and consequently I will review the relevant parts of the record in some detail.
58
The majority treats this case as involving nothing more than a dispute over a city's race-neutral decision to place a barrier across a road. My own examination of the record suggests, however, that far more is at stake here than a simple street closing. The picture that emerges from a more careful review of the record is one of a white community, disgruntled over sharing its street with Negroes, taking legal measures to keep out the "undesirable traffic," and of a city, heedless of the harm to its Negro citizens, acquiescing in the plan.
59
I readily accept much of the majority's summary of the circumstances that led to this litigation. I would, however, begin by emphasizing three critical facts. First, as the District Court found, Hein Park "was developed well before World War II as an exclusive residential neighborhood for white citizens and these characteristics have been maintained." App. 148. Second, the area to the north of Hein Park, like the "undesirable traffic" that Hein Park wants to keep out, is predominantly Negro. And third, the closing of West Drive stems entirely from the efforts of residents of Hein Park. Up to this point, the majority and I are in agreement. But we part company over our characterizations of the evidence developed in the course of the trial of this case. At the close of the evidence, the trial court described this as "a situation where an all white neighborhood is seeking to stop the traffic from an overwhelmingly black neighborhood from coming through their street." Tr. 323. In the legal and factual context before us, I find that a revealing summary of the case. The majority apparently does not.
60
According to the majority, the Court of Appeals concluded that respondents were entitled to relief based on four facts that the panel gleaned from the District Court's findings. These facts were:
61
"(1) that the closing would benefit a white neighborhood and adversely affect [Negroes]; (2) that a 'barrier was to be erected precisely at the point of separation of these neighborhoods and would undoubtedly have the effect of limiting contact between them'; (3) that the closing was not part of a citywide plan but rather was a 'unique step to protect one neighborhood from outside influences which the residents considered to be "undesirable" '; and (4) that there was evidence of 'an economic depreciation in the property values in the predominantly black residential area.' " Ante, at 109 (footnote omitted).
62
By purportedly examining the evidence supporting each of the four points, the majority is able to conclude that the court below was mistaken and that the only effect of the closing of West Drive is "some slight inconvenience to black motorists." Ante, at 119. A more detailed study of the record convinces me, to the contrary, that the Court of Appeals was entirely justified in each of its conclusions.
63
The majority does not seriously dispute the first of the four facts relied on by the Court of Appeals. In fact it concedes that the trial court "clearly concluded . . . that the adverse impact on blacks was greater than on whites." Ante, at 110, n. 15. The majority suggests, however, that this "impact" is limited to the "inconvenience" that will be suffered by drivers who live in the predominantly Negro area north of Hein Park and who will no longer be able to drive through the subdivision. This, says the majority, is because residents of the area north of Hein Park will still be able to get where they are going; they will just have to go a little out of their way and thus will take a little longer to complete the trip.
64
This analysis ignores the plain and powerful symbolic message of the "inconvenience." Many places to which residents of the area north of Hein Park would logically drive lie to the south of the subdivision.1 Until the closing of West Drive, the most direct route for those who lived on or near Springdale St. was straight down West Drive. Now the Negro drivers are being told in essence: "You must take the long way around because you don't live in this 'protected' white neighborhood." Negro residents of the area north of Hein Park testified at trial that this is what they thought the city was telling them by closing West Drive. See, e. g., Tr. 22-23, 34 (testimony of N. T. Greene); id., at 64 (testimony of Eleanore Cross). See also id., at 111 (testimony of Dr. Marvin Feit). Even the District Court, which granted judgment for petitioners, conceded that "[o]bviously, the black people north of [Hein Park] . . . are being told to stay out of the subdivision." Id., at 317. In my judgment, this message constitutes a far greater adverse impact on respondents than the majority would prefer to believe.2
65
The majority also does not challenge the Sixth Circuit's second finding, that the barrier is being erected at the point of contact of the two communities. Nor could it do so, because the fact is not really in dispute. The Court attempts instead to downplay the significance of this barrier by calling it "a curb that will not impede the passage of municipal vehicles." Ante, at 112. But that is beside the point. Respondents did not bring this suit to challenge the exclusion of municipal vehicles from Hein Park. Their goal is to preserve access for their own vehicles. But in fact, they may not even be able to preserve access for their own persons. The city is creating the barrier across West Drive by deeding public property to private landowners. Nothing will prevent the residents of Hein Park from excluding "undesirable" pedestrians as well as vehicular traffic if they so choose. See Tr. 136, 217-219, 317-318. What is clear is that there will be a barrier to traffic that is to be erected precisely at the point where West Drive (and thus, all-white Hein Park) ends and Springdale St. (and the mostly Negro section) begins.
66
The psychological effect of this barrier is likely to be significant. In his unchallenged expert testimony in the trial court, Dr. Marvin Feit, a professor of psychiatry at the University of Tennessee, predicted that the barrier between West Drive and Springdale St. will reinforce feelings about the city's "favoritism" toward whites and will "serve as a monument to racial hostility." Id., at 103, 104-105. The testiof Negro residents and of a real estate agent familiar with the area provides powerful support for this prediction.3 As the District Court put it: "[Y]ou are not going to be able to convince those black people out there that they didn't do it because they were black. They are helping a white neighborhood. Now, that is a problem that somebody is going to have to live with. . . ." Tr. 325. I cannot subscribe to the majority's apparent view that the city's erection of this "monument to racial hostility" amounts to nothing more than a "slight inconvenience." Thus, unlike the majority, I do not minimize the significance of the barrier itself in determining the harm respondents will suffer from its erection.4
67
The majority does not attempt to question the third conclusion by the Court of Appeals, that the closing of West Drive is intended as a protection of Hein Park against "undesirable" outside influences. Rather, its disagreement with the Court of Appeals is over the inference to be drawn. The majority insists that to the extent that the Court of Appeals found racially discriminatory intent, that finding is not supported by the record. The majority also asserts, ante, at 114, that there is "no evidence" that either the residents of Hein Park or the city officials were motivated by any racial considerations. A proper reading of the record demonstrates to the contrary that respondents produced at trial precisely the kind of evidence of intent that we deemed probative in Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 267-268, 97 S.Ct. 555, 564, 565, 50 L.Ed.2d 450 (1977).5
68
The term "undesirable traffic" first entered this litigation through the trial testimony of Sarah Terry. Terry, a West Drive resident who opposed the closing, testified that she was urged to support the barrier by an individual who explained to her that "the traffic on the street was undesirable traffic." Tr. 140.6 The majority apparently reads the term "undesirable" as referring to the prospect of having any traffic at all on West Drive. But the common-sense understanding of Terry's testimony must be that the word "undesirable" was meant to describe the traffic that was actually using the street, as opposed to any traffic that might use it. Of course, the traffic that was both actually using the street and would be affected by the barrier was predominantly Negro.7
69
But Terry's testimony is not, as the majority implies, the only Arlington Heights-type evidence produced at trial. The testimony of city planning officials, for example, strongly suggests that the city deviated from its usual procedures in deciding to close West Drive. In particular, despite an unambiguous requirement that applications for street closings be signed by "all" owners of property abutting on the thoroughfare to be closed, the city here permitted this application to go through without the signature or the consent of Sarah Terry.8 Perhaps more important, the city gave no notice to the Negro property owners living north of Hein Park that the Planning Commission was considering an application to close West Drive. The Planning Commission held its hearing without participation by any of the affected Negro residents and it declined to let them examine the file on the West Drive closing. It gave no notice that the City Council would be considering the issue. When respondents found out about it, they sought to state their case. But the Council gave opponents of the proposal only 15 minutes, even though some members objected that that was not enough time. Furthermore, although the majority treats West Drive as just another closing, it is, according to the city official in charge of closings, the only time the city has ever closed a street for traffic control purposes. Tr. 297-298 (testimony of Paul Goldstein). See id., at 313, 321-322 (comments of trial judge). And it cannot be disputed that all parties were aware of the disparate racial impact of the erection of the barrier.9 The city of Memphis, moreover, has an unfortunate but very real history of racial segregation—a history that has in the past led to intercession by this Court.10 All these factors represent precisely the kind of evidence that we said in Arlington Heights was relevant to an inquiry into motivation. Regardless of whether this evidence is viewed as conclusive, it can hardly be stated with accuracy that "no evidence" exists.11
70
Most important, I believe that the findings of the District Court and the record in this case fully support the Court of Appeals' conclusion that Negro property owners are likely to suffer economic harm as a result of the construction of the barrier. In attempting to demonstrate to the trial court that the closing of West Drive would adversely affect their property, respondents first introduced the testimony of H. C. Moore, a real estate agent with 17 years' experience in the field. Moore began by predicting that after West Drive was closed, Hein Park would become "more or less a Utopia within the city of Memphis," families who had left the inner city for the suburbs would probably return in order to live there, and the property values in Hein Park "would be enhanced greatly." Tr. 91-92. Moore was then asked what effect the closing would have on the property values in the Springdale area. He responded: "From an economic standpoint there would not be a lessening of value in those properties in the Springdale area, but from a psychological standpoint, it would have a tendency to have a demoralizing—." Id., at 92. At this point, counsel for petitioners interposed an objection, but Moore was eventually permitted to answer the question, and he testified as follows:
71
"In my opinion, with the 17 years experience in the real estate industry, psychologically it would have a deterring, depressing effect on those individuals who might live north of the Hein Park area. With the closure of the street, the creation of another little haven, the fact that these people are in a lower economic social group and wouldn't be able to actually afford housing with the illustrious price tags of those houses in the Hein Park area, it would be, in my opinion, like the individual looking in the pastry store who doesn't have a dime and who can't afford it. And consequently, as a result of such, their moralistic values on their properties could tend to be such that the upkeep would not be nearly so great and it could have a detrimental effect on the property values in the future." Id., at 95.
72
Surely Moore's uncontroverted expert testimony is evidence of an impairment of property values, an impairment directly traceable to the closing of West Drive. The majority dismisses this aspect of Moore's testimony as "speculation." Ante, at 117-118. Yet the majority has no trouble crediting Moore's brief and conclusory testimony that the immediate impact of the closing would be negligible. Unlike the majority, I am unable to dismiss so blithely the balance of his comments.
73
The majority also gives insufficient weight to the testimony of Dr. Feit on this point. Dr. Feit testified, based on his experience as Director of Planning for Allegheny County, Pa., that the shift in traffic patterns as a result of the closing of West Drive would lower the property values for owners living north of Hein Park. He further testified that the closing of West Drive would lead to increased hostility toward Hein Park residents and, ultimately, to increased police harassment of residents of the Springdale area. Tr. 102-104, 118-120.12 I would have thought it indisputable that increased police harassment of property owners must be construed as a significant impairment of their property interests. In my view, the combined testimony of Dr. Feit and real estate expert Moore is sufficient to demonstrate that the closing of West Drive will cause genuine harm to the property rights of the Negro residents of the area north of Hein Park.
74
In sum, I cannot agree with the majority's suggestion that "[t]he injury to respondents established by the record is the requirement that one public street rather than another must be used for certain trips within the city," ante, at 124, and that this requirement amounts to no more than "some slight inconvenience," ante, at 119. Indeed, as should be clear from the foregoing, the problem is less the closing of West Drive in particular than the establishment of racially determined districts which the closing effects. I can only agree with the Court of Appeals, which viewed the city's action as nothing more than "one more of the many humiliations which society has historically visited" on Negro citizens. 610 F.2d, at 404. In my judgment, respondents provided ample evidence that erection of the challenged barrier will harm them in several significant ways. Respondents are being sent a clear, though sophisticated, message that because of their race, they are to stay out of the all-white enclave of Hein Park and should instead take the long way around in reaching their destinations to the south. Combined with this message are the prospects of increased police harassment and of a decline in their property values. It is on the basis of these facts, all firmly established by the record, that I evaluate the legal questions presented by this case.
II
75
When Congress enacted § 1 of the Civil Rights Act of 1866, 14 Stat. 27, now 42 U.S.C. § 1982, it intended "to prohibit all racial discrimination, whether or not under color of law with respect to the rights enumerated therein. . . ." Jones v. Alfred H. Mayer Co., 392 U.S. 409, 436, 88 S.Ct. 2186, 2201, 20 L.Ed.2d 1189 (1968). See Tillman v. Wheaton-Haven Recreation Assn., Inc., 410 U.S. 431, 435, 93 S.Ct. 1090, 1092, 35 L.Ed.2d 403 (1973); Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 235, 90 S.Ct. 400, 403, 24 L.Ed.2d 386 (1969). These enumerated rights include the rights "to inherit, purchase, lease, sell, hold, and convey real and personal property." 42 U.S.C. § 1982. At bottom, as the majority recognizes, § 1982 creates a right in Negroes "not to have property interests impaired because of their race." Ante, at 122.13 Our decisions have recognized that the language of the statute is to be broadly construed. We have said that " '[w]e are not at liberty to seek ingenious analytical instruments,' " to carve exceptions from § 1982. Jones v. Alfred H. Mayer Co., supra, at 437, 88 S.Ct. at 2202, quotingUnited States v. Price, 383 U.S. 787, 801, 86 S.Ct. 1152, 1160, 16 L.Ed.2d 267 (1966). On the contrary, "[a] narrow construction of the language of § 1982 would be quite inconsistent with the broad and sweeping nature of the protection meant to be afforded by § 1 of the Civil Rights Act of 1866. . . ." Sullivan v. Little Hunting Park, Inc., supra, at 237, 90 S.Ct., at 404. If the language of the statute is given the broad reading that our cases require, then it is difficult to see how petitioners can avoid its effect.
76
The majority concludes that the kind of harm that § 1982 was meant to prohibit does not exist in this case, but as I have stated, a proper reading of the record demonstrates substantial harm to respondents' property rights as a result of the establishment of a barrier at the northern edge of Hein Park. The closing will both burden respondents' ability to enjoy their property and also depress its value, thus falling within the literal language of § 1982.14 Even the majority concedes that "the statute might be violated by official action that depreciated the value of property owned by [Negro] citizens." Ante, at 123. I believe that that is precisely what is challenged in this case.15
77
The legislative history of § 1982 also supports my conclusion that the carving out of racial enclaves within a city is precisely the kind of injury that the statute was enacted to prevent. In Jones v. Alfred H. Mayer Co., supra, at 422-437, 88 S.Ct. 2186, 2194-2202, 20 L.Ed.2d 1189, this Court discussed the legislative history of the Civil Rights Act of 1866 in some detail, and there is no need to duplicate all of that discussion here. A few examples should suffice.
78
When the Civil Rights Act of 1866 was introduced, both its supporters and its opponents alike recognized the revolutionary scope of its intended purpose of eliminating discrimination. As we noted in Jones v. Alfred H. Mayer Co., supra:
79
"That the bill would indeed have so sweeping an effect was seen as its great virtue by its friends and its great danger by its enemies but was disputed by none. Opponents of the bill charged that it would not only regulate state laws but would directly 'determine the persons who [would] enjoy . . . property within the States,' threatening the ability of white citizens 'to determine who [would] be members of [their] communit[ies]. . . .' " 392 U.S., at 433, 88 S.Ct., at 2200 (footnotes omitted; emphasis added).
80
Senator Van Winkle, the Member of Congress quoted by the Court in that passage from Jones, spoke at some length about the "dangers" inherent in the bill that would eventually become § 1982:
81
"I believe that the division of men into separate communities and their living in society and association with their fellows . . . are both divine institutions. . . . We have the right to determine who shall be members of our community, and . . . I do not see where it comes in that we are bound to receive into our community those whose mingling with us might be detrimental to our interests. I do not believe that a superior race is bound to receive among it those of an inferior race. . . ." Cong.Globe, 39th Cong., 1st Sess., 498 (1866).
82
The Senate of course passed the bill in spite of Senator Van Winkle's fears, thus repudiating his view that white residents should enjoy the absolute right to close their communities to Negroes. In enacting § 1982, Congress was "fully aware of the breadth of the measure it had approved." Jones v. Alfred H. Mayer Co., 392 U.S., at 433, 88 S.Ct., at 2200. Senator Lane, a supporter of the bill, answered the arguments of Senator Van Winkle and others by explaining that the bill would prevent a white person from "invok[ing] the power of local prejudice" against a Negro. Cong.Globe, 39th Sess., 1st Sess., at 603. Senator Trumbull, a sponsor of the legislation, made plain that it was intended to prohibit local discriminatory customs as well as discriminatory state laws. Id., at 1759. During the House debate over the Civil Rights Act, Representative Cook argued that without the legislation, slavery might be perpetuated "under other names and in other forms" because "[a]ny combination of men in [a Negro's] neighborhood" might join to oppress him. Id., at 1124. As we recognize in Jones v. Alfred H. Mayer Co., supra, at 427-428, 88 S.Ct., at 2197 one goal of the Reconstruction Congress in enacting the statute was to provide protection for Negroes when "white citizens . . . combined to drive them out of their communities." See Cong.Globe, 39th Cong., 1st Sess., at 1156, 1835; J. tenBroek, Equal Under Law 181 (rev. ed. 1965).
83
I do not, of course, mean to suggest that the Reconstruction Congress that enacted § 1982 anticipated the precise situation presented by this case. Nor do I wish to imply that the Act prevents government from ever closing a street when the effect is to inflict harm on Negro property owners. But because of our Nation's sad legacy of discrimination and the broad remedial purpose of § 1982, I believe that official actions whose effects fall within its terms ought to be closely scrutinized. When, as here, the decisionmaker takes action with full knowledge of its enormously disproportionate racial impact,16 I believe that § 1982 requires that the government carry a heavy burden in order to justify its action. Absent such a justification, the injured property owners are entitled to relief. There is no need to suggest here just how great the government's burden should be, because the reasons set forth by the city for the closing of West Drive could not, on the facts of this case, survive any but the most minimal scrutiny.
84
In sustaining the closing of West Drive, the majority points to petitioners' "[p]roper management of the flow of vehicular traffic within a city," and their exercise of the "unquestionably legitimate" "residential interest in comparative tranquility," ante, at 126, 127.17 Those interests might, as the majority contends, well prove "sufficient to justify an adverse impact on motorists who are somewhat inconvenienced by the street closing," ante, at 128, but that is not the impact that the city must explain in this case. It must instead justify the substantial injury that it has inflicted on Negro citizens solely for the benefit of the white residents of Hein Park. For that purpose, the proffered explanations are insufficient. "[A] city's possible motivations to ensure safety and save money cannot validate an otherwise impermissible state action." Palmer v. Thompson, 403 U.S. 217, 226, 91 S.Ct. 1940, 1945, 29 L.Ed.2d 438 (1971). See Watson v. Memphis, 373 U.S. 526, 537, 83 S.Ct. 1314, 1320, 10 L.Ed.2d 529 (1963); Cooper v. Aaron, 358 U.S. 1, 16, 78 S.Ct. 1401, 1408, 3 L.Ed.2d 5 (1958); Buchanan v. Warley, 245 U.S. 60, 74, 81, 38 S.Ct. 16, 18, 20, 62 L.Ed. 149 (1917). It is simply unrealistic to suggest, as does the Court, that the harm suffered by respondents has no more than "symbolic significance," ante, at 128, and it defies the lessons of history and law to assert that if the harm is only symbolic, then the federal courts cannot recognize it. Compare Plessy v. Ferguson, 163 U.S. 537, 551, 16 S.Ct. 1138, 1143, 41 L.Ed. 256 (1896) ("We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it"), with Brown v. Board of Education, 347 U.S. 483, 494, 74 S.Ct. 686, 691, 98 L.Ed. 873 (1954) ("To separate them from others . . . solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. . . . Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority"). The message the city is sending to Negro residents north of Hein Park is clear, and I am at a loss to understand why the majority feels so free to ignore it.
85
Indeed, until today I would have thought that a city's erection of a barrier, at the behest of a historically all-white community, to keep out predominantly Negro traffic, would have been among the least of the statute's prohibitions. Certainly I suspect that the Congress that enacted § 1982 would be surprised to learn that it has no application to such a case. Even the few portions of debate that I have cited make clear that a major concern of the statute's supporters was the elimination of the effects of local prejudice on Negro residents. In my view, the evidence before us supports a strong inference that the operation of such prejudice is precisely what has led to the closing of West Drive. And against this record, the government should be required to do far more than it has here to justify an action that so obviously damages and stigmatizes a racially identifiable group of its citizens.
86
In short, I conclude that the plain language of § 1982 and its legislative history show that the harm established by a fair reading of this record falls within the prohibition of the statute. Because the Court of Appeals reached the same conclusion, I would affirm its judgment.18
III
87
I end, then, where I began. Given the majority's decision to characterize this case as a mere policy decision on the part of the city of Memphis to close a street for valid municipal reasons, the conclusion that it reaches follows inevitably. But the evidence in this case, combined with a dab of common sense, paints a far different picture from the one emerging from the majority's opinion. In this picture a group of white citizens has decided to act to keep Negro citizens from traveling through their urban "utopia," and the city has placed its seal of approval on the scheme. It is this action that I believe is forbidden, and it is for that reason that I dissent.
1
Section 1982 provides:
"All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property."
The Thirteenth Amendment provides:
"Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
"Section 2. Congress shall have power to enforce this article by appropriate legislation."
2
Overton Park was described in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 406, 91 S.Ct. 814, 818, 28 L.Ed.2d 136:
"Overton Park is a 342-acre city park located near the center of Memphis. The park contains a zoo, a nine-hole municipal golf course, an outdoor theater, nature trails, a bridle path, an art academy, picnic areas, and 170 acres of forest."
3
See Trial Exhibit 14. This history points up the distinction between what the local residents may request or desire and what action the city may authorize. It is, of course, the city's action that is challenged in this litigation.
4
Only the signatures of the "abutting property owners" were required on the application.
5
The opponents of the closing submitted to the Council written objections containing approximately 1,000 signatures.
C. Litigation
6
App. 4-5. In 1977, the District Court granted a motion to intervene made by three additional individual plaintiffs who lived north of Jackson Ave. Id., at 46-54. The class ultimately certified by the District Court consisted of "black persons in the City of Memphis who own or stand to inherit property surrounding and adjoining the area along West Drive and Hein Park Subdivision." Stipulation of Parties as to Maintenance of Cause as a Rule 23(b)(2) Class Action, Record Doc. No. 23; Order Granting Motion to Amend and Certification of Class Action, App. 67. The original complaint also challenged the city's action in striking from the municipal budget the construction of a $750,000 federal-state financed community center in the plaintiffs' neighborhood. Id., at 4. No question related to that challenge remains in the litigation.
7
"None of the plaintiffs [live] on West Drive; none are deprived of reasonable ingress and egress to their property; the street is not proposed to be closed to blacks and open to whites. In short, the effect of the proposed closing, whether wise or unwise, is the same upon whites as it is to blacks. Palmer v. Thompson, 403 U.S. 217, 91 S.Ct. 1940, 29 L.Ed.2d 438. There is no racial discriminatory import to the resolution of closure, and there is no assertion that it will be implemented or administered in a racially discriminatory fashion or effect. Plaintiffs complain only that they will be denied access to West Drive from the north just as every other citizen will be." Id., at 29-30 (footnote omitted).
8
"Plaintiffs have no constitutional property rights in continued access to West Drive under the facts asserted or on the basis asserted in the complaint. They have no standing as affected property owners on the street to due process notice and hearing." Id., at 31.
9
The Court of Appeals summarized its holding as follows:
"To establish a section 1982 or 1983 claim on remand, Greene must prove his allegations that city officials conferred the closed street on West Drive residents because of their color; he must prove racial motivation, intent or purpose, in the absence of such egregious differential treatment as to in itself violate equal protection or, alternatively, to command an inference of racial motivation. . . .
". . . According to the instant complaint allegations, the closing of West Drive left certain white residents with privacy and quiet of a dead-end street, though black residents, for racial reasons, have been and would be unable to acquire such a dead-end street." 535 F.2d, at 979-980.
10
"Upon a consideration of the facts established, this Court concludes that the action of the City Council which undertakes to close West Drive did not create a benefit for white citizens which has been denied black citizens. The proof shows that this is the only time that the street and alley closing procedure has been used to close a street which serves as a thoroughfare for the residents and the public. From the standpoint that the closing procedure has been used to close alleys and dedicated but unused streets, the proof shows that the procedure has benefited black citizens as well as white citizens." App. 159.
11
"This Court concludes that the closure of West Drive in the manner adopted by the City Council will have disproportionate impact on certain black citizens. However, the Court also concludes that there is not sufficient proof of racially discriminatory intent or purpose on the part of the city officials to establish a constitutional violation.
"As heretofore indicated, by placing the narrow barrier at the intersection of West Drive and Jackson, the southbound overwhelmingly black traffic will no longer be allowed to continue a logical and direct route across Jackson. At the same time the white residents of West Drive will have considerably less traffic. The residents of West Drive also will have less inconvenience because most of their movement will logically take them southbound on departure and northbound on return.
"However, this Court does not believe that the disparate impact is so stark that a purpose or intent of racial discrimination may be inferred. It must be noted that excessive traffic in any residential neighborhood has public welfare factors such as safety, noise, and litter, regardless of the race of the traffic and the neighborhood.
* * * * *
"Similarly, this Court does not find a purpose or intent to racially discriminate based upon a consideration of other evidence in the case as directed in Arlington Heights v. Metropolitan Housing Corp., [429 U.S. 252, 267-268, 97 S.Ct. 555, 564, 565, 50 L.Ed.2d 450]." Id., at 161-162.
12
Respondents had contended that procedural defects violated state law and the Due Process Clause of the Fourteenth Amendment, and also provided evidence of an intent to discriminate. Judge McRae considered and rejected each of these contentions. Id., at 149-153, 162-163. Although the briefs and oral arguments in this Court contained discussion of procedural issues, inasmuch as the Court of Appeals did not rely upon such issues and we find no error in their treatment by the District Court, they will not be further discussed.
13
The court purported to leave open the question whether intent is ever an element of a plaintiff's § 1982 case. 610 F.2d, at 404, n. 13.
14
The Court of Appeals summarized its holding in this paragraph:
"Without endeavoring to establish any legal guidelines for the determination of when conduct may amount to a badge of slavery, we find the determinations made by the district court here to be altogether adequate to bring the conduct complained of within that description. The community to be benefited by the closing was and had historically been all white. Conversely, the territory to be burdened by the closing was predominantly black. The barrier was to be erected precisely at the point of separation of these neighborhoods and would undoubtedly have the effect of limiting contact between them. The proposed closing was not enacted in response to any uniform city planning effort, directed generally to the preservation of the residential neighborhoods throughout the city; instead it appears to have been a unique step to protect one neighborhood from outside influences which the residents considered to be 'undesirable.' Finally, there was some evidence, credited by the district court, of an economic depreciation in the property values in the predominantly black residential area with a corresponding increase in the property values in Hein Park. The result, under the unique circumstances here, can only be seen as one more of the many humiliations which society has historically visited upon blacks. Where that racial humiliation not only rises to the level of a badge of slavery but also affects the right of blacks to hold property in the same manner as other citizens, then Section 1982 has been violated and the federal courts must provide a suitable remedy." Id., at 404 (footnote omitted).
D. The Evidence
15
Judge McRae noted that the West Drive residents will have the benefit of less traffic and will be inconvenienced less than the black residents living north of Jackson Ave., because the movement of the West Drive residents "will logically take them southbound on departure and northbound on return." App. 161. Judge McRae plainly stated his opinion that the street closing was unwise because it will interfere with the provision of municipal services and encourage vandalism in the neighborhood. Ibid. He clearly concluded, however, that the adverse impact on blacks was greater than on whites.
16
Robert Miller, Executive Director of the Planning Commission testified:
"[T]he Planning Commission and council didn't think that closing this intersection would really impede the traffic because West Drive didn't go anywhere anyway. It is not like closing a major street in this area that goes for miles and miles and go into strategic landmarks in Memphis, strategic locations that people are getting to." Tr. 206.
One City Council member expressed surprise that anyone from north of Jackson Ave. would want to use West Drive inasmuch as West Drive is a two-lane street with no traffic light, and the alternative routes are four-lane streets with traffic lights. See Trial Exhibit 26, pp. 32-33 (remarks of Mr. Hyman).
17
Although the street closing will also have an effect on motorists driving north along West Drive and will make the homes of the plaintiff class less accessible, the location of Overton Park will prevent motorists from using West Drive as a direct northern route.
18
See Tr. 164-165. The District Court summarized one respondent's claim of inconvenience:
"Plaintiff N. T. Greene testified at the trial in this Court that the closure would compound the multitude of negative experiences that he has encountered as a black person. He complained that the closure would prevent convenient vehicular access to various facilities contained in Overton Park and would cause him, his family and neighbors psychological and emotional damage. His home is located on Terry Circle in Memphis, Tennessee, which is northwest from the intersection of West Drive and Jackson Avenue (T.E. 22). Insofar as his use of West Drive to and from his residence, the closure would cause him no actual inconvenience." App. 154.
Mr. Greene lives 11/2 miles from the Jackson Ave.-West Drive intersection. See Tr. 45. A portion of Mr. Greene's testimony is quoted in the dissenting opinion, post, at 140, n. 3.
19
The District Court described the closing as follows:
"The partial closing will be accomplished by having the northernmost property owners on West Drive buy a 25-foot east-west strip across the entire width of the street. Because officials of certain departments of the city deem it necessary that public service vehicles will be able to cross the strip, a 24-foot gap will be left in the barricade. There will be a speed breaker across the gap, but other details, such as signs, have not been finalized." App. 148-149.
20
The District Court summarized the testimony of one witness who testified about the actual difficulty involved in reaching Hein Park homes:
"Mrs. Elnora Priest Cross an intervening plaintiff, testified that she would like to be able to go through West Drive. She has a friend who works at the home of someone who lives on West Drive and contacts her in the event of an emergency.2
"2 Mrs. Cross will still be able to reach her friend; however, she will be inconvenienced by having to use a different route." App. 154.
Mrs. Cross lives 31/2 miles to the northwest of the Jackson Ave.-West Drive intersection. Tr. 62. A portion of Mrs. Cross' testimony is quoted in the dissenting opinion, post, at 140, n. 3.
21
Whether the closing will have the effect of barring pedestrians from access to West Drive from Jackson Ave. is not entirely clear from the record. At trial Judge McRae asked Robert Miller, the Executive Director of the Planning Commission, whether the City Council resolution,
which stated that the portion of West Drive to be deeded to the property owners abutting West Drive and Jackson Ave. was to be "closed to the public," meant that the public could not walk across the property. The question produced the following testimony:
"THE WITNESS: No. I don't think it means that. I think it was closed to vehicular traffic.
"THE COURT: All right.
"THE WITNESS: I think if you want to walk through there you still can do that according to the plan. There is not a high curb there, it is sort of like a roll curb, but the intended closing was for the obstruction of vehicular traffic.
"THE COURT: Do you think, that that has been made plain to these—
"THE WITNESS: (Interjecting) I believe so. That was brought out at the hearings.
"There was no intention not to let people walk on through there if they wanted to, to my knowledge.
"THE COURT: Are you going to be happy if somebody tries to stop a pedestrian and have them say, 'Bob Miller said I could do this.'
"THE WITNESS: Well, all I can indicate to you—well, let me say this. There are conditions imposed in that closing. Emergency vehicles can plow on through that.
"THE COURT: That is not the public though.
"THE WITNESS: No, that is not the public, that is the city. I think the intent of the thing was not to fence it so that nobody could walk through. But to plant it, put a roll curb in there and to completely discourage the use of automobiles through that portion that is closed; automobiles, trucks, what have you vehicles.
"THE COURT: All right.
"Thank you Mr. Miller." Tr. 215-216.
Mr. Miller later admitted, however, that the portion of the street deeded by the city would become part of the lots of the abutting property owners, that the only restrictions on the deeds would be those requiring access by municipal vehicles, and that pedestrians walking across the strip of land would be walking across private property. Id., at 218-219. The abutting property owners did not testify at trial, and the District Court made no finding on this issue. The Court of Appeals noted that although the record was unclear as to whether the abutting property owners would, in fact, bar all foot traffic, "it is clear that the proposed conveyance will leave them with the absolute right to do so if they wish . . . ." 610 F.2d, at 396.
22
Dr. Bill Weber, a resident of West Drive, stated in support of the closing that traffic studies had counted 1,600 to 1,700 cars per 12-hour period traveling down West Drive and 200 cars per hour during the peak morning and afternoon periods. He stated that "we feel this is excessive traffic for a residential area." Trial Exhibit 26, p. 11. Mrs. Betsy Robbins, another resident of West Drive, stated that:
"We're an active part of our area. This is our area. But in the midst of our interests in the whole area we found that one of the major problems is on our own doorstep. The hazardous traffic on West Drive. Our greatest worry here is children. . . . In addition to all the children on the street, each school morning and afternoon about 150 youngsters cross West Drive at my corner going to and from Snowden School. The stop sign on this corner is frequently ignored by swift traffic. Daily, I find myself rushing to the window when I hear screeching brakes. I'm terrified that some driver has hit a child." Id., at 15.
23
We must bear in mind that respondents have sued the city, the Mayor, and the City Council and its chairman. Therefore, we must focus on the decisions of these public officials, and not on the actions of the residents of Hein Park, in determining whether respondents have proved their claim.
24
One Council member stated that the major streets running parallel to West Drive to the east and to the west are only six-tenths of a mile apart and "are designed to be thoroughfares." West Drive, however, "is not designed and never was designed to be a thoroughfare" bearing the burden of heavy traffic. Id., at 31-32 (remarks of Mrs. Awsumb). Another Council member stated from personal experience that traffic was heavy on West Drive even at night and expressed doubt that a compromise, such as speedbreakers at the intersection of West Drive and Jackson Ave., would be sufficient to stop the "hotrodders". Id., at 31 (remarks of Mr. Love). The Council discussed a traffic study which showed that 22,505 vehicles entered the West Drive-North Parkway intersection during a 12-hour period, and that 820 of these cars exited from West Drive onto North Parkway. Id., at 34.
25
In moving for reconsideration of the Council resolution, Councilman Alissandratos stated:
"While I certainly feel for particular neighborhood and appreciate the fact that they want to maintain a high standard of a neighborhood, we are still involved with a street that is operated and maintained by taxpayers' money and I think it would be an injustice to close it, in addition to the fact that it would be establishing a very dangerous president [sic] in the rest of the City." Trial Exhibit 27, p. 2.
See also id., at 3, 4 (remarks of Mr. James). The Council members who opposed the closing preferred a compromise solution to the traffic problem, such as a low speed limit and speedbreakers. See Trial Exhibit 26, p. 28 (remarks of Mr. Davis); ibid. (remarks of Mr. Ford); id., at 29-31 (remarks of Mr. Alissandratos).
26
Mrs. Terry, the one resident of the block of West Drive closest to Jackson Ave. who did not sign the application to close the street and who testified against the closing at the City Council hearing, testified as follows at the trial:
"Q. Were you approached by anyone who asked you to sign this petition? A. Yes.
"Q. Did they give you any reason as to why they would like to have you sign their petition? A. That there was excess traffic on the street and it was dangerous for children. It was my understanding that trash was thrown out of windows of cars and stuff like that so it made our street littered.
"Q. Based on what was told to you during those encounters, did you gain the impression that there was any racial consideration? A. At one point someone said to us; the person who was passing the petition, that the traffic on the street was undesirable traffic. And I did not ask what that person meant.
"Q. Did they make any reference to the people of North Memphis? A. Just the people coming through Hein Park.
"Q. How did they describe them? A. This was just one statement, that the traffic was undesirable traffic. But now, you see I did not ask a question to pursue that." App. 114-115.
Even if Mrs. Terry did receive the impression that the person who spoke to her considered the traffic undesirable because of the race of the drivers, that isolated bit of hearsay evidence is not sufficient to justify a Court of Appeals' finding that the City Council was motivated by racial animus when the District Court made a contrary finding on the basis of the record as a whole.
27
As Justice MARSHALL correctly notes in dissent, the city of Memphis continued to oppose the prompt desegregation of its municipal parks and recreational facilities as late as 1963, see Watson v. Memphis, 373 U.S. 526, 83 S.Ct. 1314, 10 L.Ed.2d 529, cited post, at 144, n. 10, and 152; moreover, the pre-World War II development of Hein Park may well have been influenced by the racial segregation which was then common, see post, at 137, and the record contains evidence that racial prejudice still exists in Memphis, see post, at 142, n. 7. We agree with Justice MARSHALL that these facts are relevant, but we cannot say that they required the District Court to find that the City Council's action in this case was racially motivated, or that its contrary finding is erroneous as a matter of law. Indeed, Justice MARSHALL's own interpretation of the record is somewhat ambivalent since he sometimes refers to the evidence as supporting a "strong inference" of racial motivation, post, at 153, and elsewhere implies that the city's action was taken " 'solely because of . . . race,' " see ibid. The record plainly does not support a conclusion that the residents of Hein Park would have welcomed the heavy flow of transient traffic through their neighborhood if the drivers had been predominantly white. It is unlikely that a mother who finds herself "rushing to the window when I hear screeching brakes," see n. 22, supra, is concerned about the race of the driver of the vehicle.
28
One of the named respondents and a class member also offered their opinion as to the effect of the closing on the value of their homes. Respondent Greene expressed the opinion that the enhancement of the value of the white-owned homes and the restricted accessibility of his home would have a detrimental effect on the value of his home. Tr. 38. One homeowner who lived to the north of Jackson Ave. expressed the opinion that the street closing would depreciate the value of his property because it would increase the amount of traffic on his street. Id., at 128. The record does not support the suggestion that the closing will affect the traffic flow north of Jackson Ave. or impede access to any residence to the north. Neither the Court of Appeals nor the District Court relied on the testimony of these two witnesses.
29
Because any adverse effect on property values has critical importance in our consideration of § 1982, we quote the relevant testimony of the witness Moore in full:
"Q. Now, Mr. Moore, what effect, if any, would this proposed closure have on the property values in the Springdale area; just across Jackson there? A. I am intimately familiar with the Springdale area, having been a real estate agent who more or less was instrumental in providing some houses for those in low economic groups in that area.
"From an economic standpoint there would not be a lessening of value in those properties in the Springdale area, but from a psychological standpoint, it would have a tendency to have a demoralizing—
"Mr. Holmes: (Interjecting) I object to that answer. He is not qualified as an expert in psychological opinions.
"Mr. Wharton: Well, if he would like to strike that whole answer, we don't have a problem with that.
"Mr. Holmes: Well, we only object to the psychological evaluation. He has stated that the property values in and of themselves would not go down.
* * * * *
"The Court: Right.
"Mr. Wharton: From his real estate background.
"Q. (By Mr. Wharton) Would you please continue with your response, Mr. Moore? A. In my opinion, with the 17 years experience in the real estate industry, psychologically it would have a deterring, depressing effect on those individuals who might live north of the Hein Park area. With the closure of the street, the creation of another little haven, the fact that these people are in a lower economic social group and wouldn't be able to actually afford housing with the illustrious price tags of those houses in the Hein Park area, it would be, in my opinion, like the individual looking in the pastry store who doesn't have a dime and who can't afford it. And consequently, as a result of such, their moralistic values on their properties could tend to be such that the upkeep would not be nearly so great and it could have a detrimental effect on the property values in the future." App. 111-112.
30
Plaintiffs also called Dr. Feit, a clinical assistant professor in the Department of Psychiatry, University of Tennessee Center of Health Sciences, as an expert witness. The District Court summarized Dr. Feit's testimony as follows:
"Dr. Marvin Feit, an assistant professor at the University of Tennessee School of Social Work, testified that it was his opinion that closing West Drive would result in negative consequences in the form of hostility towards the people who live in Hein Park, increased vandalism, school harassment, and increased arrests by police. He also was of the opinion that the closure would result in more disgruntled drivers." Id., at 155.
Over defendants' objection that he was testifying to matters outside his area of expertise, see Tr. 106-110, Dr. Feit also testified as follows:
"Q. Before the luncheon recess we were at the point of asking Dr. Feit to give his professional opinion as to the negative psychological consequences of the possible closure of West Drive and how those consequences might affect property values, and I will ask you to answer that question.
"A. Well, particularly on the north of Jackson it is very likely that the property values will go down, whereas in Hein Park it is most likely that they will rise equal to the rather exclusive area; whereas the area north of Jackson will go down because of the increase in the volume of traffic which has nowhere to go." Id., at 118-119.
The District Court did not credit this testimony.
31
The Court stated:
"The Negro petitioners entered into contracts of sale with willing sellers for the purchase of properties upon which they desired to establish homes. Solely because of their race and color they are confronted with orders of court divesting their titles in the properties and ordering that the premises be vacated. White sellers, one of whom is a petitioner here, have been enjoined from selling the properties to any Negro or colored person. Under such circumstances, to suggest that the Negro petitioners have been accorded the same rights as white citizens to purchase, hold, and convey real property is to reject the plain meaning of language." 334 U.S., at 34, 68 S.Ct., at 852.
32
The Court indicated that Congress had the power, through the passage of § 1982, to eradicate such discrimination:
"At the very least, the freedom that Congress is empowered to secure under the Thirteenth Amendment includes the freedom to buy whatever a white man can buy, the right to live wherever a white man can live. If Congress cannot say that being a free man means at least this much, then the Thirteenth Amendment made a promise the Nation cannot keep." 392 U.S., at 443, 88 S.Ct., at 2205.
33
Little Hunting Park, Inc., was a corporation organized to operate recreational facilities for the benefit of residents of Fairfax County, Va. A person holding a membership share who rented his home to another was entitled to assign his share to the lessee. This Court held that both the lessor and the lessee had a cause of action under § 1982 for the corporation's refusal, on racial grounds, to approve such an assignment. The Court held that the membership was part of the lease and that the right to lease was specifically guaranteed by § 1982:
"There has never been any doubt but that Freeman paid part of his $129 monthly rental for the assignment of the membership share in Little Hunting Park. . . . Respondents' actions in refusing to approve the assignment of the membership share in this case was clearly an interference with Freeman's right to 'lease.' " 396 U.S., at 236-237, 90 S.Ct., at 404-405.
34
Any resident of a geographical area within a 3/4-mile radius of the swim club received three preferences: the right to apply for membership without seeking the recommendation of a current member, a preference over nonresidents when applying for a vacancy, and the right to pass to the successor in title of his home the first option on the membership. 410 U.S., at 436, 93 S.Ct., at 1093. The Court held that these preferences conferred property rights on the owner of a home in the area of the swim club that could not be denied on the basis of the homeowner's race. The Court noted that the right to confer an option on a subsequent purchaser could have an effect on the value of a home. Furthermore:
"[T]he automatic waiting-list preference given to residents of the favored area may have affected the price paid by the Presses when they bought their home. Thus the purchase price to them, like the rental paid by Freeman in Sullivan, may well reflect benefits dependent on residency in the preference area. For them, however, the right to acquire a home in the area is abridged and diluted.
"When an organization links membership benefits to residency in a narrow geographical area, that decision infuses those benefits into the bundle of rights for which an individual pays when buying or leasing within the area. The mandate of 42 U.S.C. § 1982 then operates to guarantee a nonwhite resident, who purchases, leases, or holds this property, the same rights as are enjoyed by a white resident." Id., at 437, 93 S.Ct., at 1094.
35
The lower federal courts have also required plaintiffs alleging a violation of § 1982 to demonstrate some impairment of property interests. In Wright v. Salisbury Club, Ltd., 632 F.2d 309 (CA4 1980), the court held that the right to join a country club was a property interest attaching to a home in a subdivision when all residents of the subdivision were encouraged to join the club and residency as a practical matter assured approval of an application. See, e. g., Moore v. Townsend, 525 F.2d 482 (CA7 1975) (discriminatory refusal to sell home); Clark v. Universal Builders, Inc., 501 F.2d 324 (CA7) (allegation that blacks forced to accept prices and terms in excess of terms available to whites purchasing comparable housing stated claim under § 1982), cert. denied, 419 U.S. 1070, 95 S.Ct. 657, 42 L.Ed.2d 666 (1974); Gore v. Turner, 563 F.2d 159 (CA5 1977) (discriminatory refusal to lease apartment); Scott v. Eversole Mortuary, 522 F.2d 1110 (CA9 1975) (alleged discrimination in sale of burial plots); Concerned Tenants Assn. v. Indian Trails Apartments, 496 F.Supp. 522 (ND Ill.1980) (§ 1982 applies to abandonment of services previously provided to white tenants of apartment complex and now denied to black tenants); Newbern v. Lake Lorelei, Inc., 308 F.Supp. 407 (SD Ohio 1968) (discrimination in modes of negotiation for sale of property); Sims v. Order of Commercial Travelers of America, 343 F.Supp. 112 (Mass.1972) (insurance contracts constitute property for purposes of § 1982); Gonzalez v. Southern Methodist University, 536 F.2d 1071 (CA5 1976) (no property interest in law school admission), cert. denied, 430 U.S. 987, 97 S.Ct. 1688, 52 L.Ed.2d 383 (1977).
36
The absence of such restriction distinguishes this case from the Fifth Circuit's decision in Jennings v. Patterson, 488 F.2d 436 (1974). In Jennings, the defendants placed a barricade across a street on the outskirts of Dadeville, Ala., and prohibited landowners on the other side of the barricade from using the street. All but one of the landowners so restricted were black, and the one white landowner was given private access to the closed street. The street closing had the effect of adding 11/2 to 2 miles to the trip into town. The court held that the plaintiffs, "because they are black, have been denied the right to hold and enjoy their property on the same basis as white citizens." Id., at 442. Thus Jennings, unlike this case, involved a severe restriction on the access to property. See supra, at 110-112, and nn. 15-18.
37
In Palmer, the Court rejected petitioners' claim that a city's decision to close public swimming pools rather than desegregate them violated the Thirteenth Amendment. The Court noted that § 2 of the Amendment gave Congress the power to eradicate "badges of slavery," and that Congress had not prohibited the challenged conduct. 403 U.S., at 227, 91 S.Ct., at 1946.
38
In addition to § 1982, which we have identified as providing broad protection to property rights, Congress has enacted, pursuant to § 2 of the Thirteenth Amendment, Rev.Stat. § 1977, 42 U.S.C. § 1981, which protects the right of all citizens to enter into and enforce contracts, see Runyon v. McCrary, 427 U.S. 160, 170, 96 S.Ct. 2586, 2594, 49 L.Ed.2d 415; cf. Jones v. Alfred H. Mayer Co., 392 U.S. 409, 440-441, 88 S.Ct. 2186, 2203-04, 20 L.Ed.2d 1189; Rev.Stat. § 1980, 42 U.S.C. § 1985(3) (1976 ed., Supp.III), which protects blacks from conspiracies to deprive them of "the equal protection of the laws, or of equal privileges and immunities under the laws," see Griffin v. Breckenridge, 403 U.S. 88, 104-105, 91 S.Ct. 1790, 1799-1800, 29 L.Ed.2d 338; Rev.Stat. § 1990, 42 U.S.C. § 1994, which prohibits peonage, see Pollock v. Williams, 322 U.S. 4, 8, 64 S.Ct. 792, 794, 88 L.Ed. 1095; and 18 U.S.C. § 1581, which provides for criminal punishment of those who impose conditions of peonage on any person, see Clyatt v. United States, 197 U.S. 207, 218, 25 S.Ct. 429, 431, 49 L.Ed. 726.
39
The Court continued:
"For that clause clothed 'Congress with power to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States.' " Ibid. (Emphasis added).
* * * * *
"Surely Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery, and the authority to translate that determination into effective legislation." 392 U.S., at 439-440, 88 S.Ct., at 2203-04.
40
In Jones the Court did hold, of course, that § 2 of the Amendment, which in terms merely authorized the enactment of legislation to enforce § 1, did more than authorize legislation to enforce the ban against slavery. See nn. 32, 38, supra. Although the Court expressly overruled Hodges v. United States, 203 U.S. 1, 27 S.Ct. 6, 51 L.Ed. 65, see 392 U.S., at 441-443, n. 78, 88 S.Ct., at 2204-2205, the Court neither agreed nor disagreed with the first Justice Harlan's statement in dissent in Hodges that "by its own force, that Amendment destroyed slavery and all its incidents and badges, and established freedom." See 203 U.S., at 27, 27 S.Ct., at 13.
41
See supra, at 106-108, 113-116 and nn. 22-27.
42
See nn. 22-25 and accompanying text, supra.
43
As the Court in Village of Belle Terre noted:
"The police power is not confined to elimination of filth, stench, and unhealthy places. It is ample to lay out zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people." 416 U.S., at 9, 94 S.Ct., at 1541.
1
The initial opinion of the Court of Appeals instructed the District Court as follows:
"To establish a section 1982 or 1983 claim on remand, Greene must prove his allegations that city officials conferred the closed street on West Drive residents because of their color; he must prove racial motivation, intent or purpose, in the absence of such egregious differential treatment as to in itself violate equal protection or, alternatively, to command an inference of racial motivation." 535 F.2d 976, 979.
In the opinion rendered by the Court of Appeals following the initial remand, the above language was described as dicta.
2
Respondents' § 1983 claim based on the Fourteenth Amendment necessarily fell on the District Court's conclusion that respondents had failed to meet their burden of establishing discriminatory intent. See Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977); Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). The Court of Appeals did not hold otherwise. Nor is the reach of the Thirteenth Amendment properly before us. The Court of Appeals' judgment was based on § 1982.
3
Section 1 of the Thirteenth Amendment provides:
"Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."
4
The fear that the former slaves were doomed to second-class citizenship was supported by the report submitted by Major General Carl Schurz to President Andrew Johnson. S.Exec.Doc.No. 2, 39th Cong., 1st Sess. (1865). President Johnson had assigned Schurz the task of traveling through a number of Southern States for the purpose of gathering information and making observations as to the postwar conditions to be found in that region. The report is a detailed and lucid account of these journeys. In it, Schurz describes the precarious social position of the freedmen as well as the numerous abuses to which those individuals were being subjected. The report expressed the general view that the South was having difficulty adjusting to the abolition of slavery and that in the absence of federal intervention, a substitute for slavery was not unlikely. Schurz' report concludes with the admonition, "As to the future peace and harmony of the Union, it is of the highest importance that the people lately in rebellion be not permitted to build up another 'peculiar institution' whose spirit is in conflict with the fundamental principles of our political system; for as long as they cherish interests peculiar to them in preference to those they have in common with the rest of the American people, their loyalty to the Union will always be uncertain." Id., at 46. The themes sounded in this report were repeated in the debates over the Civil Rights Act.
5
Apropos of the effect of these Black Codes, Major General Schurz commented: "But while accepting the 'abolition of slavery,' they think that some species of serfdom, peonage, or some other form of compulsory labor is not slavery, and may be introduced without a violation of their pledge. . . . What particular shape the reactionary movement will assume it is at present unnecessary to inquire. There are a hundred ways of framing apprenticeship, vagrancy, or contract laws, which will serve the purpose." Id., at 35. The Codes are collated and described in E. McPherson, The Political History of the United States of America During the Period of Reconstruction 29-44 (1871).
6
Respondents suggest that certain of the discriminations with which Congress was concerned arose out of facially neutral vagrancy laws, applicable equally to blacks and whites. From this we are to infer the creation of a disparate-impact standard. But this argument overlooks the congressional view that these ostensibly neutral statutes were intentionally being used to oppress blacks. "Vagrant laws have been passed; laws which, under the pretense of selling these men as vagrants, are calculated and intended to reduce them to slavery again; and laws which provide for selling these men into slavery in punishment of crimes of the slightest magnitude. . . ." Cong.Globe, 39th Cong., 1st Sess., 1123 (1866) (remarks of Mr. Cook); see also id., at 1151 (remarks of Mr. Thayer), 1160 (remarks of Mr. Windom). For example, General Terry ordered non-enforcement of the Virginia Vagrant Act since he had concluded that white farmers had entered into combinations fixing the wages to be paid former slaves at an unreasonably low level, forcing the freedmen to either accept the unfair wage or risk criminal conviction under the Vagrant Act. General Terry observed:
" 'The effect of the statute in question will be, therefore, to compel the freedmen, under penalty of punishment as criminals, to accept and labor for the wages established by these combinations of employers. It places them wholly in the power of their employers, and it is easy to foresee that, even where no such combination now exists, the temptation to form them offered by the statute will be too strong to be resisted, and that such inadequate wages will become the common and usual wages throughout the State. The ultimate effect of the statute will be to reduce the freedmen to a condition of servitude worse than that from which they have been emancipated—a condition which will be slavery in all but its name.' " McPherson, supra, n. 5, at 41-42.
The objection to the vagrancy laws was not to their disproportionate impact, but to the intentional use of those statutes to impose upon freedmen a system tantamount to slave labor. See also Kohl, The Civil Rights Act of 1866, Its Hour Come Round at Last: Jones v. Alfred H. Mayer Co., 55 Va.L.Rev. 272, 276-283 (1969). Some of these vagrancy laws were not race neutral. The Vagrant Act of Mississippi was directed only at unemployed freedmen. See McPherson, supra, n. 5, at 30.
1
As the majority notes, ante, at 103, n. 2, Hein Park is bordered on the south by Overton Park, which contains numerous municipally owned outdoor attractions. In fact, the entire central city lies south of Hein Park. Negro residents drive down West Drive for purposes as diverse as going to visit friends, Tr. 36 (testimony of N. T. Greene), and just looking at the scenery, id., at 63 (testimony of Eleanore Cross).
2
As I discuss infra, at 145-147, I also conclude that as a result of the closing, Negro property owners in the area north of Hein Park will suffer substantial impairments in both the enjoyment and value of their property.
3
One Negro resident, N. T. Greene, testified: "[B]ecause we are Black, we cannot drive through a piece of property that is owned collectively by us. This would cause psychological damage to me personally." Tr. 23. He added that he perceived the barrier as "simply an extension of the insult and humiliation that we have tolerated and experienced too long already." Id., at 39. Another resident, Eleanore Cross, was asked how she would feel if West Drive were closed. She responded: "That would put a fear on me that if they said, 'Closed,' that means 'Closed,' and that would mean put a fear on me." Id., at 64. One of respondents' expert witnesses, real estate agent H. C. Moore, testified that he anticipated similar effects. See infra, at 145-146.
4
The majority makes much of the fact that even after the closing of West Drive, three other streets are available for access into Hein Park. Of these, however, only one, Charles Place, which is west of West Drive and parallel to it, is arguably convenient. But drivers coming down West Drive have to go out of their way to reach Charles Place. There is, moreover, nothing to prevent the white property owners along Charles Place from seeking to close it at the northern end, for they could surely come up with reasons as vague as those set forth for the closing of West Drive itself. In any event, the fact remains that predominantly Negro traffic is being disadvantaged for the exclusive benefit of a community that was designed to be, and still remains, entirely white.
5
In Arlington Heights we explained:
"Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available. The impact of the official action—whether it 'bears more heavily on one race than another' . . .—may provide an important starting point. Sometimes a clear pattern, unexplainable on grounds other than race, emerges from the effect of the state action even when the governing legislation appears neutral on its face. . . . But such cases are rare [and ordinarily] impact alone is not determinative, and the Court must look to other evidence.
"The historical background of the decision is one evidentiary source, particularly if it reveals a series of official actions taken for invidious purposes. The specific sequence of events leading up to the challenged decision also may shed some light on the decisionmaker's purposes. . . . Departures from the normal procedural sequence also might afford evidence that improper purposes are playing a role. Substantive departures too may be relevant, particularly if the factors usually considered important by the decisionmaker strongly favor a decision contrary to the one reached.
"The legislative or administrative history may be highly relevant, especially where there are contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports. . . .
"The foregoing summary identifies, without purporting to be exhaustive, subjects of proper inquiry in determining whether racially discriminatory intent existed." 429 U.S., at 266-268, 97 S.Ct., at 563-565 (citations and footnotes omitted).
6
Terry's testimony on this point is set forth in full in the majority opinion, ante, at 115-116, n. 26.
7
Emmanuel Goldberger, a white citizen who opposed the closing of West Drive but who died before trial, explained in testimony before the City Council some of the reasons that he considered the closing racially motivated:
"Mr. Chairman, there's been enough said about the number of cars, or the speed of the cars going on West Drive. You know and I know that that isn't the issue. . . .
"But if you want me to, I will spell it out for you. Mr. Chairman, the answer is sitting right here. The well-to-do white people living in Hein Park do not want black people or the few of us who refuse to run away living north of Jackson to drive on . . . what they think is their street. I phoned a man—I phoned a man with whom I have been friendly for more than 65 years. His wife answered and would not let me speak to him. So as the rights and wrongs were discussed, she said to me[,] 'Leo and I were surprised to see you sitting with that group of niggers.' That[,] Mr. Chairman[,] is the issue here." Ex. 30, p. 1.
8
City officials asserted at trial that there is no requirement that the opinions of affected property owners be solicited before a street is closed, and the District Court found that there had been no substantial departure from usual practices. But the city's own application forms state that they must be signed by "[a]ll owners abutting the thoroughfare to be closed." App. 137. At trial, city officials took the position that this language only refers to individuals owning property abutting at the point of the closing. If that is accurate, then on the city's theory, any two property owners living across a street from one another could seek to close it, and the city would have no obligation to consult any other residents at all before approving the closing. Put gently, such testimony is contrary to common sense and not worthy of great deference.
9
During the brief City Council hearing, residents of the area north of Hein Park presented petitions with approximately 1,000 signatures protesting the closing of West Drive, stating: "This Closing symbolizes in unmistakable terms a White neighborhood shutting its door on its adjacent Black and integrated communities." These petitions made express reference to the racial impact. Witnesses before the Council also made reference to the racial character of the neighborhoods involved. See, e. g., Ex. 30, pp. 2-3, 6, 7, 11. The trial judge took judicial notice of the fact that the area to the north of Hein Park was predominantly Negro, and he added: "[I]f the City Council didn't know that that property coming up to Jackson Avenue [northern boundary of Hein Park] was predominently [sic] black, then I have got my doubts about them." Tr. 324.
10
See Watson v. Memphis, 373 U.S. 526, 83 S.Ct. 1314, 10 L.Ed.2d 529 (1963).
11
I do not mean by this discussion to imply that a showing of discriminatory motivation is required before a violation of § 1982 may be made out. I merely suggest that if such a finding is required, the record in this case contains considerable evidence from which it could be made. See n. 14, infra. Nor am I deterred by the trial court's conclusion that no discriminatory motive was involved in the closing of West Drive. The Court of Appeals disagreed with this finding because the panel believed that the District Judge "conceived himself limited in his capability to grant relief by the language in [the first opinion] and that he placed too high a threshold upon the requirements of Section 1982 and, underlying it, the Thirteenth Amendment." 610 F.2d 395, 402. In its first opinion, the panel discussed § 1982 only insofar as it related to the city's willingness to grant a white community a benefit (the closing of a street) that was denied to a Negro community. 535 F.2d 976, 978 (1976). Much of the evidence presented at trial concerned this issue, and some of the comments of the trial judge suggest that he might have thought it the only one to be decided. In fact, § 1982 encompasses considerably more than the granting of a benefit to a white community when the same right is denied to Negroes. For example, a violation of the statute might be made out through a showing that a benefit was granted to a white community in such a manner that it harmed Negro property rights. See infra, at 148-149. Thus if the District Court in fact thought that respondents could show a violation of § 1982 only by showing that they had been denied a benefit granted to white residents, it was applying an improper legal standard in considering whether there was discrimination. This likelihood that the District Court indeed applied an improper standard must in turn taint the finding that intentional discrimination was absent. Thus, to the extent that the majority reaches its conclusion through reliance on that finding by the District Court, it is relying on a fact not properly found. The appropriate response in this situation should be to instruct the Court of Appeals to remand the case to the District Court for reconsideration of the evidence under the correct legal standard.
12
The District Court expressly credited Dr. Feit's testimony that racial hostility and arrests of Negro residents would increase. App. 155. That court did not discuss Dr. Feit's testimony that property values in the area north of Hein Park would decrease as a result of the closing of West Drive. There is absolutely no record evidence contravening either Dr. Feit's or real estate agent Moore's testimony that property values would fall.
13
Indeed, we have in the past implied that a violation of § 1982 can be made out when the challenged action may have an adverse impact on property values in the future. Tillman v. Wheaton-Haven Recreation Assn., Inc., 410 U.S. 431, 437, 93 S.Ct. 1090, 1094, 35 L.Ed.2d 403 (1973). See Wright v. Salisbury Club, Ltd., 632 F.2d 309, 314-316 (CA4 1980).
14
Like the majority, I do not reach the question whether a showing of discriminatory intent is a necessary element of a violation of § 1982. Justice WHITE, in his opinion concurring in the judgment, examines the language of the statute and the legislative history and concludes that a showing of racially discriminatory purpose is indeed required. I do not believe that his arguments support his conclusion. The language of the statute simply declares that "[a]ll citizens of the United States shall have the
same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property." The plain language does not suggest an intent requirement, because it does not condition a violation of § 1982 on the motivation of any person or persons. There is nothing in the statute to suggest, for example, that a right denied through sheer insensitivity is entitled to less protection than one denied through racial animus. I agree with Justice WHITE that the legislative history suggests a congressional intent to strike down both state laws that by their terms served to oppress the former slaves and those that were enforced with that goal in mind. But particularly in light of the broad statutory language, I find no basis for concluding that that is all that Congress meant to do. Even if Justice WHITE is correct, and racially discriminatory motivation must be demonstrated under § 1982, it is enough for me if the evidence raises an inference of intent and the government fails to rebut it with a sufficiently strong explanation. And on that premise, I would certainly hold that intent must be inferred when, as here, municipal officials were acting on behalf of what they knew to be and what had always been an all-white community, were acting not in accordance with any municipal plan but instead for the sole benefit of that white community, were aware in the course of their proceedings that a predominantly Negro community would be injured by their official action, deviated significantly from their usual procedure, and gave the Negro community no meaningful opportunity to state its case. I do not believe that this inference is successfully rebutted on the facts of this case. See infra, at 152-153.
15
The majority implies, see ante, at 114, n. 23, that there is analytical significance in the fact that although the defendants are the city and its officials, respondents introduced evidence as to the motivations of the private citizens who petitioned the city to close West Drive. But it is beyond dispute that § 1982 has application to official government action that merely ratifies private discriminatory conduct. See Hurd v. Hodge, 334 U.S. 24, 31-34, 68 S.Ct. 847, 851-852, 92 L.Ed. 1187 (1948). See also Cong.Globe, 39th Cong., 1st Sess., 1833 (1866) (remarks of Rep. Lawrence) (statute reaches State's failure to protect rights as well as its actions that infringe them).
16
See n. 9, supra.
17
I do not understand the majority to dispute the conclusion by the Court of Appeals that "[t]he proposed closing was not enacted in response to any uniform city planning effort, directed generally to the preservation of the residential neighborhoods throughout the city." 610 F.2d, at 404. That statement would in fact be difficult to dispute in light of the testimony by a city official that a street closing for traffic control purposes is in fact unprecedented. See Tr. 297-298 (testimony of Paul Goldstein). Of course, the result that I reach does not turn on the accuracy of the statement by the Court of Appeals.
18
In light of my disposition of the statutory question, I would ordinarily find it unnecessary to consider the merits of the Thirteenth Amendment argument. But I cannot let the Court's discussion of the constitutional claim pass without comment. The majority reserves until another case the issue whether § 1 of the Amendment by its own force bans "badges and incidents of slavery" because, in its view, "a review of the justification for the official action challenged in this case demonstrates that its disparate impact on black citizens could not . . . be fairly characterized as a badge or incident of slavery." Ante, at 126. For reasons that I have already indicated, I believe that the degree of harm to respondents from the erection of a barrier at the end of West Drive far exceeds the minimal inconvenience found by the majority. Assuming with the majority that the Amendment would, even without implementing legislation, ban more than the mere practice of slavery, I would conclude that official action causing harm of the magnitude suffered here plainly qualifies as a "badge or incident" of slavery, at least as those terms were understood by the Reconstruction Congress.
When the Thirteenth Amendment was being debated, supporters and opponents alike acknowledged that it would have the effect of striking down racial discrimination in a wide variety of areas. See, e. g., Cong.Globe, 38th Cong., 1st Sess., 1465, 2944, 2962, 2979, 2982-2983, 2987 (1865). See generally J. tenBroek, Equal Under Law 162-168 (rev. ed. 1965). In enacting § 1 of the Civil Rights Act of 1866, the provision that produced both § 1981 and § 1982, see Runyon v. McCrary, 427 U.S. 160, 168, n. 8, 170, 96 S.Ct. 2586, 2593 n. 8, 2594, 49 L.Ed.2d 415 (1976), Congress did not believe it was doing more than spelling out the guarantees implicit in § 1 of the Thirteenth Amendment. See Cong.Globe, 39th Cong., 1st Sess., 503-504 (1866) (remarks of Sen. Howard); id., at 602-603 (remarks of Sen. Lane); R. Kluger, Simple Justice 47, 627-629 (1975). Because that Congress included so many of those who had a hand in drafting the Thirteenth Amendment, cf. Jones v. Alfred H. Mayer Co., 392 U.S. 409, 439-440, 88 S.Ct. 2186, 2203, 20 L.Ed.2d 1189 (1968), I would give its judgment considerable deference. Consequently, I would hold that because the closing of West Drive is forbidden on these facts by § 1982, it is a fortiori a violation of the Thirteenth Amendment as well. Of course, this should not be taken as an argument that Congress cannot under § 2 of the Thirteenth Amendment enact legislation forbidding more than would § 1 of the Amendment standing alone. I simply suggest that Congress did not do so when it enacted § 1 of the Civil Rights Act of 1866.
I also do not mean to imply that all municipal decisions that affect Negroes adversely and benefit whites are prohibited by the Thirteenth Amendment. I would, however, insist that the government carry a heavy burden of justification before I would sustain against Thirteenth Amendment challenge conduct as egregious as erection of a barrier to prevent predominantly Negro traffic from entering a historically all-white neighborhood. For reasons that I have already stated, I do not believe that the city has discharged that burden in this case, and for that reason I would hold that the erection of the barrier at the end of West Drive amounts to a badge or incident of slavery forbidden by the Thirteenth Amendment.
| 12
|
451 U.S. 77
101 S.Ct. 1571
67 L.Ed.2d 750
NORTHWEST AIRLINES, INC., Petitioner,v.TRANSPORT WORKERS UNION OF AMERICA, AFL-CIO, et al.
No. 79-1056.
Argued Dec. 2, 1980.
Decided April 20, 1981.
Syllabus
In a class action brought against petitioner airline by a female cabin attendant employee, petitioner was held liable to the class of such female employees for backpay because wage differentials between male and female cabin attendants collectively bargained with respondent unions were found to violate the Equal Pay Act of 1963 and Title VII of the Civil Rights Act of 1964. After its postjudgment motions claiming contribution from the unions for a proportionate part of the liability were denied as untimely, petitioner brought a separate action in Federal District Court seeking such contribution. The District Court interpreted the pleadings as contending that petitioner had either an implied cause of action for contribution against the unions under the Equal Pay Act for discriminating against the class of employees in question or a federal common-law right to contribution from the unions for a share of its Equal Pay Act liability, and that the petitioner's claim for reimbursement for its Title VII liability was based solely on a federal common-law right to contribution. The court dismissed the claim for contribution based on petitioner's liability under the Equal Pay Act, but, denying the unions' motions to dismiss, held that there was a federal common-law right to contribution for liability imposed under Title VII, at least under some circumstances, and that it would reach the issues as to this right when the facts were properly developed. Both the unions and petitioner appealed. The Court of Appeals affirmed the dismissal for contribution based on petitioner's liability under the Equal Pay Act, but declined to reach the Title VII issue, remanding to the District Court for determination of the unions' assertion that the Title VII contribution claim was barred by laches.
Held : Petitioner has neither a federal statutory nor a federal common-law right to contribution from respondent unions. Pp. 86-99.
(a) Even if it is assumed that all of the elements of a typical contribution claim are established in this case, that the policy considerations under the Equal Pay Act and Title VII favor the recognition of a right to contribution, that the unions bear significant responsibility for discriminatory practices that these statutes were designed to prohibit, and that there are circumstances in which an employer may be a "person aggrieved" by union conduct that would be remediable under Title VII, none of these assumptions provides a sufficient basis for recognizing the right to contribution asserted by petitioner. Pp. 86-91.
(b) The language of neither the Equal Pay Act nor Title VII, both of which statutes are expressly directed against employers, supports implication of a right to contribution in favor of employers against unions. The structure and legislative histories of both statutes similarly do not support such an implied right. Pp. 91-95.
(c) Whatever may be a federal court's power to fashion remedies in other areas of the law, it would be improper to add a federal common-law right to contribution to the statutory rights that Congress created in the Equal Pay Act and Title VII. Cooper Stevedoring Co. v. Fritz Kopke, Inc., 417 U.S. 106, 94 S.Ct. 2174, 40 L.Ed.2d 694, distinguished. A favorable reaction to the equitable considerations supporting petitioner's contribution claim is not a sufficient reason for enlarging on the remedial provisions contained in these carefully considered statutes. Cf. Mohasco Corp. v. Silver, 447 U.S. 807, 100 S.Ct. 2486, 65 L.Ed.2d 532. Pp. 95-99.
196 U.S.App.D.C. 443, 606 F.2d 1350, affirmed in part and vacated in part.
Philip A. Lacovara, Washington, D. C., for petitioner.
Stephen B. Moldof, New York City, for respondents.
Lawrence G. Wallace, Washington, D. C., for the United States as amicus curiae, by special leave of Court.
Justice STEVENS delivered the opinion of the Court.
1
The question presented in this case is whether an employer held liable to its female employees for backpay because collectively bargained wage differentials were found to violate the Equal Pay Act of 19631 and Title VII of the Civil Rights Act of 19642 has a federal statutory or common-law right to contribution from unions that allegedly bear at least partial responsibility for the statutory violations.
2
The relevant facts are alleged in the complaint filed by the petitioner, Northwest Airlines, Inc., against the respondent unions, the Transport Workers Union of America (TWU) and the Air Line Pilots Association, International (ALPA), in the United States District Court for the District of Columbia.3 Continuously from 1947 through 1974, petitioner paid higher wages to its male cabin attendants, who were classified as pursers, than to its female cabin attendants, who were classified as stewardesses. During that period, both the male and the female cabin attendants were represented by a union—TWU from 1961 to 1971 and ALPA thereafter4—and their wages were fixed by collective-bargaining agreements negotiated and executed in response to union demands.
3
In 1970, Mary Laffey, a female cabin attendant employed by petitioner, commenced a class action against petitioner challenging the legality of the wage differential between pursers and stewardesses.5 On November 12, 1973, after a full trial, the District Court issued an opinion in which it found that the two positions required equal skill, effort, and responsibility, and were performed under similar working conditions. Accordingly, the court held that petitioner had violated the Equal Pay Act and Title VII of the Civil Rights Act of 1964 and entered judgment in favor of the plaintiff class. Laffey v. Northwest Airlines, Inc., 366 F.Supp. 763 (1973).6 Unless that judgment is reversed or modified, petitione will be required to pay in excess of $20 million in backpay, damages, and interest to the members of the Laffey plaintiff class.7
4
After the entry of judgment against it, petitioner filed appropriate motions in the Laffey case asserting claims for contribution and indemnification against TWU and ALPA.8 These motions were denied as untimely, and the Court of Appeals affirmed this ruling. Laffey v. Northwest Airlines, Inc., 185 U.S.App.D.C. 322, 369-370, 567 F.2d 429, 476-478. Promptly thereafter, petitioner commenced this separate action. The complaint prayed that each union be adjudged liable to pay a proportion of any monetary liability finally assessed against petitioner in the Laffey litigation. The unions moved to dismiss the complaint for failure to state a claim upon which relief could be granted.
5
As the District Court interpreted the pleadings, petitioner contended that it had an implied cause of action against the unions under the Equal Pay Act for causing it to discriminate against the Laffey class, or, in the alternative, a federal common-law right to contribution from the unions for a share of its Equal Pay Act monetary liability. Petitioner's claim for reimbursement for its Title VII monetary liability was based solely on a federal common-law right to contribution. App. to Pet. for Cert. 2b-3b. The District Court held that because the Equal Pay Act clearly was not enacted for the special benefit of employers, petitioner could not rely upon an implied private cause of action for contribution under that statute. The court also concluded that the Act did not afford employees any express or implied right of action against their unions; because it found that unions and employers do not share common liability to employees under the Equal Pay Act, the District Court held that there is no federal common-law right to contribution for liability under that statute.9
6
The District Court reached a different conclusion with respect to the claim for contribution for petitioner's Title VII monetary liability. It found that the allegations of the complaint satisfied the two principal elements of a common-law right to contribution: (1) common liability and (2) the party seeking contribution has been required to pay more than its just share of the award. Id., at 10b. The court answered what it described as the "more difficult question" whether there is a right to contribution under federal law by noting a modern trend of federal-court decisions favoring contribution,10 and by finding that the policy of the statute would be served by allowing contribution. Assuming, without deciding, that contribution might be denied for an intentional wrong, the court denied the unions' motions to dismiss, holding "only that there is a federal common law right to contribution for monetary liability imposed under Title VII, at least under some circumstances, and it will reach the questions as to the precise parameters of this right when the pertinent facts have been developed and properly placed before the Court." Id., at 18b.11
7
The unions took an interlocutory appeal from the Title VII holding,12 and petitioner appealed the Equal Pay Act holding.13 The Court of Appeals affirmed the dismissal of the claim for contribution based on petitioner's liability under the Equal Pay Act, reasoning that such a claim would be inconsistent with the statutory scheme prescribing three, and only three, modes of enforcement.14 However, the Court of Appeals declined to reach the Title VII issue. Noting that on appeal the unions had asserted for the first time that petitioner's Title VII contribution claim was barred by laches, the court remanded to the District Court with inructions to determine the laches question, explaining that it might thereby become unnecessary to decide the hard question concerning contribution for Title VII liability. 196 U.S.App.D.C. 443, 449, 606 F.2d 1350, 1356 (1979).
8
Unlike the Court of Appeals, we think the basic legal questions raised by the motions to dismiss petitioner's contribution claims are ripe for decision.15 The importance of these questions led us to grant certiorari. 447 U.S. 920, 100 S.Ct. 3008, 65 L.Ed.2d 1111.
9
* We first put to one side certain questions that we need not address. We shall then discuss the two quite different theories that might support petitioner's claimed right to contribution.
10
At common law there was no right to contribution among joint tortfeasors.16 In most American jurisdictions, however, that rule has been changed either by statute or by judicial decision.17 Typically, a right to contribution is recognized when two or more persons are liable to the same plaintiff for the same injury and one of the joint tortfeasors has paid more than his fair share of the common liability.18 Recognition of the right reflects the view that when two or more persons share responsibility for a wrong, it is inequitable to require one to pay the entire cost of reparation, and it is sound policy to deter all wrongdoers by reducing the likelihood that any will entirely escape liability.19
11
In this case, we assume that all of the elements of a typical contribution claim are established. This means that we assume that the plaintiffs in the Laffey litigation could have recovered from either the union or the employer, under both the Equal Pay Act and Title VII,20 and that it is unfair to require petitioner to pay the entire judgment. Furthermore, although the adversaries disagree with respect to whether recognition of a right to contribution would undermine or advance the policies of the Equal Pay Act and Title VII—and, indeed, the Equal Employment Opportunity Commission has staunchly argued both sides of that policy question at different stages of this litigation21—we assume that the policy considerations favor the recognition of the right. And, as argued by petitioner, we assume that the respondent unions in this case, as well as other unions in other industries,22 bear significant responsibility for discriminatory practices that these statutes were designed to prohibit. Finally, we assume that there are circumstances in which an employer may be a "person aggrieved" by union conduct that would be remediable after a timely charge is filed against the union under § 706(b) of Title VII, 42 U.S.C. § 2000e-5(b).23 None of these assumptions, however, provides a sufficient basis for recognizing the right petitioner is asserting in this proceeding.
12
That right may have been created in either of two ways. First, it may have been created by statute when Congress enacted the Equal Pay Act or Title VII. Even though Congress did not expressly create a contribution remedy, if its intent to do so may fairly be inferred from either or both statutes, an implied cause of action for contribution could be recognized on the basis of the analysis used in cases such as Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26, Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 and Universities Research Assn., Inc. v. Coutu, 450 U.S. 754, 101 S.Ct. 1451, 67 L.Ed.2d 662. Second, a cause of action for contribution may have become a part of the federal common law through the exercise of judicial power to fashion appropriate remedies for unlawful conduct. See, e. g., Kohr v. Allegheny Airlines, Inc., 504 F.2d 400 (CA 7 1974), cert. denied, 421 U.S. 978, 95 S.Ct. 1980, 44 L.Ed.2d 470. For somewhat different reasons, we reject both theories.
II
13
In determining whether a federal statute that does not expressly provide for a particular private right of action nonetheless implicitly created that right, our task is one of statutory construction. See Touche Ross & Co. v. Redington, 442 U.S. 560, 568, 99 S.Ct. 2479, 2485, 61 L.Ed.2d 82. The ultimate question in cases such as this is whether Congress intended to create the private remedy—for example, a right to contribution that the plaintiff seeks to invoke. See Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 15-16, 100 S.Ct. 242, 245, 62 L.Ed.2d 146; Universities Research Assn., Inc., supra, at 770, 101 S.Ct., at 1461. Factors relevant to this inquiry are the language of the statute itself, its legislative history, the underlying purpose and structure of the statutory scheme, and the likelihood that Congress intended to supersede or to supplement existing state remedies. See Cort v. Ash, supra, at 78, 95 S.Ct., at 2088; Cannon, supra, at 689-709, 99 S.Ct., at 1953-1964.
14
In matters of statutory construction, it is appropriate to begin with the language of the statute itself. See Touche Ross & Co., supra, at 568, 99 S.Ct., at 2485; Reiter v. Sonotone Corp., 442 U.S. 330, 337, 99 S.Ct. 2326, 2330, 60 L.Ed.2d 931. Neither the Equal Pay Act nor Title VII expressly creates a right to contribution in favor of employers. This omission, although significant,24 is not dispositive if, among other things, the language of the statutes indicates that they were enacted for the special benefit of a class of which petitioner is a member. See Cannon, supra, at 689, 99 S.Ct., at 1953. However, as the District Court correctly perceived, it cannot possibly be said that employers are members of the class for whose especial benefit either the Equal Pay Act or Title VII was enacted. App. to Pet. for Cert. 5b.25 To the contrary, both statutes are expressly directed against employers; Congress intended in these statutes to regulate their conduct for the benefit of employees.26 In light of this fact, petitioner "can scarcely lay claim to the status of 'beneficiary' whom Congress considered in need of protection." Piper v. Chris-Craft Industries, Inc., 430 U.S. 1, 37, 97 S.Ct. 926, 947, 51 L.Ed.2d 124.
15
Even if we focus upon the isolated provisions in each statute that arguably were intended to provide special protection for employers,27 the same result follows. For those provisions, construed most favorably to petitioner, could at most provide a basis for implying a remedy for harm to an employer caused by union wrongdoing. Such a remedy for a violation of the employer's rights would be entirely different from a right to compel the union to share the responsibility for a joint violation of a third party's rights. Clearly, the language of neither statute supports implication of a right to contribution in favor of employers against unions.28
16
The structure of the statutes similarly counsels against recognition of the implied right petitioner advocates in this case. The Equal Pay Act and Title VII establish comprehensive programs designed to eliminate certain varieties of employment discrimination. The statutes make express provision for private enforcement in certain carefully defined circumstances, and provide for enforcement at the instance of the Federal government in other circumstances.29 The comprehensive character of the remedial scheme expressly fashioned by Congress strongly evidences an intent not to authorize additional remedies.30 It is, of course, not within our competence as federal judges to amend these comprehensive enforcement schemes by adding to them another private remedy not authorized by Congress.
17
Finally, we conclude that the legislative histories of the Equal Pay Act and Title VII provide no support for petitioner's position.31 As the parties recognize, the legislative history of neither statute contains any reference, adverse or favorable, to contribution. Of course, such legislative silence is often encountered in implied-right-of-action cases; it is to be expected that "the legislative history of a statute that does not expressly create or deny a private remedy will typically be equally silent or ambiguous on the question." Cannon, 441 U.S., at 694, 99 S.Ct., at 1956. Therefore, "the failure of Congress expressly to consider a private remedy is not inevitably inconsistent with an intent on its part to make such a remedy available." Transamerica Mortgage Advisors, 444 U.S., at 18, 99 S.Ct., at 246. But unless this congressional intent can be inferred from the language of the statute, the statutory structure, or some other source, the essential predicate for implication of a private remedy simply does not exist. In this case, we have been unable to discover any manifestation of an intent on the part of Congress to create a right to contribution in favor of employers under the Equal Pay Act and Title VII. Accordingly we hold that there is no implied right to contribution under those statutes.
III
18
Although it is much too late to deny that there is a significant body of federal law that has been fashioned by the federal judiciary in the common-law tradition, it remains true that federal courts, unlike their state counterparts, are courts of limited jurisdiction that have not been vested with open-ended lawmaking powers. See United States v. Standard Oil Co., 332 U.S. 301, 313, 67 S.Ct. 1604, 1610, 91 L.Ed. 2067. Broadly worded constitutional and statutory provisions necessarily have been given concrete meaning and application by a process of case-by-case judicial decision in the common-law tradition. The Court also has recognized a responsibility, in the absence of legislation, to fashion federal common law in cases raising issues of uniquely federal concern, such as the definition of rights or duties of the United States,32 or the resolution of interstate controversies.33 However, we consistently have emphasized that the federal lawmaking power is vested in the legislative, not the judicial, branch of government; therefore, federal common law is "subject to the paramount authority of Congress." New Jersey v. New York, 283 U.S. 336, 348, 51 S.Ct. 478, 481, 75 L.Ed. 1104.34
19
A narrow exception to the limited lawmaking role of the federal judiciary is found in admiralty. We consistently have interpreted the grant of general admiralty jurisdiction to the federal courts as a proper basis for the development of judge-made rules of maritime law. See Fitzgerald v. United States Lines Co., 374 U.S. 16, 20-21, 83 S.Ct. 1646, 1650, 10 L.Ed.2d 720.35 Because "the Congress has largely left to this Court the responsibility for fashioning the controlling rules of admiralty law," id., at 20, 83 S.Ct., at 1650, "[a]dmiralty law is judge-made law to a great extent." Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 259, 99 S.Ct. 2753, 2756, 61 L.Ed.2d 521. Even in admiralty, however, where the federal judiciary's lawmaking power may well be at its strongest, it is our duty to respect the will of Congress.36
20
Pursuant to our authority to fashion flexible and equitable remedies in admiralty, see United States v. Reliable Transfer Co., 421 U.S. 397, 409, 95 S.Ct. 1708, 1715, 44 L.Ed.2d 251, we approved a nonstatutory federal right to contribution among joint tortfeasors in Cooper Stevedoring Co. v. Fritz Kopke, Inc., 417 U.S. 106, 94 S.Ct. 2174, 40 L.Ed.2d 694. In that case, relying upon ancient admiralty doctrine, we held that a shipowner may obtain contribution from another tortfeasor jointly responsible for causing injury to a longshoreman. However, contrary to petitioner's argument and the understanding of some lower federal courts,37 Cooper Stevedoring did not recognize a general federal right to contribution, and no such general federal right has been recognized in any other decisions of this Court.38 Our approval of contribution in Cooper Stevedoring was based on traditional admiralty doctrine39 and on the power of the federal judiciary to fashion rules of law in admiralty. Neither of the predicates for that decision is applicable in the present context.
21
The liability of petitioner for discriminating against its female cabin attendants is entirely a creature of federal statute. In almost any statutory scheme, there may be a need for judicial interpretation of ambiguous or incomplete provisions. But the authority to construe a statute is fundamentally different from the authority to fashion a new rule or to provide a new remedy which Congress has decided not to adopt. Cf. Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 625, 98 S.Ct. 2010, 2015, 56 L.Ed.2d 581. The presumption that a remedy was deliberately omitted from a statute is strongest when Congress has enacted a comprehensive legislative scheme including an integrated system of procedures for enforcement. Both the Equal Pay Act and Title VII of the Civil Rights Act of 1964 are such statutes. The judiciary may not, in the face of such comprehensive legislative schemes, fashion new remedies that might upset carefully considered legislative programs.40
22
Last Term, in Mohasco Corp. v. Silver, 447 U.S. 807, 100 S.Ct. 2486, 65 L.Ed.2d 532, we had occasion to consider the enforcement scheme of Title VII with some care. Although equitable considerations strongly supported a nonliteral reading of the statutory provisions regarding the time during which a claim could be asserted, see id., at 827-828, 100 S.Ct., at 2497-2498 (BLACKMUN, J., dissenting), we concluded that we had a duty to "respect the compromise embodied in the words chosen by Congress. It is not our place simply to alter the balance struck by Congress in procedural statutes by favoring one side or the other in matters of statutory construction." Id., at 826, 100 S.Ct., at 2497. In this case, as in Mohasco, a favorable reaction to the equitable considerations supporting petitioner's contribution claim is not a sufficient reason for enlarging on the remedial provisions contained in these carefully considered statutes.41
23
Whatever may be a federal court's power to fashion remedies in other areas of the law,42 we are satisfied that it would be improper for us to add a right to contribution to the statutory rights that Congress created in the Equal Pay Act and Title VII. The judgment of the Court of Appeals is therefore modified insofar as it fails to direct the District Court to grant respondent unions' motions to dismiss the complaint. Accordingly, the judgment of the Court of Appeals is affirmed in part and vacated in part.
24
It is so ordered.
25
Justice BLACKMUN took no part in the consideration or decision of this case.
1
The Equal Pay Act, 77 Stat. 56, 29 U.S.C. § 206(d), which was enacted in 1963 as an amendment to the Fair Labor Standards Act, 52 Stat. 1060, 29 U.S.C. § 201 et seq., provides, in relevant part:
"(d)(1) No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex: Provided, That an employer who is paying a wage rate differential in violation of this subsection shall not, in order to comply with the provisions of this subsection, reduce the wage rate of any employee.
"(2) No labor organization, or its agents, representing employees of an employer having employees subject to any provisions of this section shall cause or attempt to cause such an employer to discriminate against an employee in violation of paragraph (1) of this subsection." 29 U.S.C. §§ 206(d)(1)-(2).
2
Section 703 of the Civil Rights Act, 78 Stat. 255, as amended and as set forth in 42 U.S.C. § 2000e-2, provides, in relevant part:
"(a) . . . It shall be an unlawful employment practice for an employer—
"(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or
"(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.
* * * * *
"(c) . . . It shall be an unlawful employment practice for a labor organization—
"(1) to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin;
"(2) to limit, segregate, or classify its membership or applicants for membership, or to classify or fail or refuse to refer for employment any individual, in any way which would deprive or tend to deprive any individual of employment opportunities, or would limit such employment opportunities or otherwise adversely affect his status as an employee or as an applicant for employment, because of such individual's race, color, religion, sex, or national origin; or
"(3) to cause or attempt to cause an employer to discriminate against an individual in violation of this section." 42 U.S.C. §§ 2000e-2(a), (c).
3
Because the case comes before us on respondents' motions to dismiss, we accept as true the factual allegations of petitioner's complaint. See Scheuer v. Rhodes, 416 U.S. 232, 236-237, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90. Additional background information is taken from the District Court and Court of Appeals opinions in the underlying employment discrimination class action. See Laffey v. Northwest Airlines, Inc., 366 F.Supp. 763 (1973), aff'd in part, vacated and remanded in part, 185 U.S.App.D.C. 322, 567 F.2d 429 (1976), cert. denied, 434 U.S. 1086, 98 S.Ct. 1281, 55 L.Ed.2d 792.
4
From 1946 to 1961, the cabin attendants were represented by the Airline Stewards and Stewardesses Association, International, which became affiliated with TWU in 1961. See Laffey v. Northwest Airlines, Inc., 366 F.Supp., at 765. Prior to 1947, all cabin attendants employed by petitioner were females classified as stewardesses. Ibid.
5
No claims were asserted against the respondent unions, although the plaintiffs subsequently joined ALPA as a nonaligned party under Federal Rule of Civil Procedure 19(a) in order to bring before the District Court all parties necessary to implement in a complete remedy. See Laffey v. Northwest Airlines, Inc., 185 U.S.App.D.C., at 370-371, 567 F.2d, at 477-478. The plaintiffs expressly stated that they did not consider ALPA responsible for any of the alleged discrimination, and petitioner did not oppose ALPA's participation as a nonaligned party. Id., at 371, 567 F.2d, at 478.
6
Shortly thereafter, the District Court entered an order detailing the remedial steps, including payment of backpay, that petitioner was to take to rectify its past discrimination. Laffey v. Northwest Airlines, Inc., 374 F.Supp. 1382 (1974).
7
The opinion of the District Court in the present case indicates that petitioner's monetary liability as a result of the Laffey litigation has been estimated to be $24,500,000. App. to Pet. for Cert. 11b, n. 23. Petitioner in this Court asserts that its monetary liability presently is calculated to be approximately $37 million. Brief for Petitioner 6.
8
Petitioner moved to amend its answer to include a request that ALPA be realigned as a defendant and to assert a cross-claim for contribution or indemnification from ALPA for any Equal Pay Act or Title VII monetary liability assessed against petitioner and a claim for damages under the Equal Pay Act for allegedly causing petitioner's violation. Petitioner also moved for leave to file a third-party complaint against TWU asserting similar claims.
9
Most of the lower federal courts that have considered the question whether employers may seek contribution from unions for monetary liability under the Equal Pay Act have concluded that this right is not implicit in the statute nor available under federal common law. See, e. g., Denicola v. G. C. Murphy Co., 562 F.2d 889 (CA3 1977); EEOC v. Ferris State College, 493 F.Supp. 707 (WD Mich.1980); Marshall v. Tombs Janitorial Service, Inc., 82 CCH LC ¶ 33,559 (WD Mo.1977); Usery v. Beloit College, 12 EPD ¶ 11,203 (WD Wis.1976); Brennan v. Emerald Renovators, Inc., 410 F.Supp. 1057 (SDNY 1975). But see Love v. Temple University, 366 F.Supp. 835 (ED Pa.1973); Wirtz v. Hayes Industries, Inc., 1 EPD ¶ 9874 (ND Ohio 1968).
10
As the District Court explained:
"The more difficult question is whether there is a right to contribution under federal law. The traditional American rule, originating in the English case of Merryweather v. Nixan, was that there was no right to contribution between joint tortfeasors. This rule has been abrogated in most states, principally by statute although a few jurisdictions, including the District of Columbia, have done so by decisional law. As with state law, there was initially no right to contribution under federal law, absent legislation. Union Stock Yards Co. v. Chicago, B. & Q. R. Co., 196 U.S. 217, 224, 25 S.Ct. 226, 227, 49 L.Ed. 453 (1905). However, the modern trend, as evidenced by cases such as Kohr v. Allegheny Airlines, Inc., 504 F.2d 400 (7th Cir. 1974), cert. denied, 421 U.S. 978, 95 S.Ct. 1980, 44 L.Ed.2d 470 (1975), has been to recognize a right to contribution under federal law. Gould v. American-Hawaiian Steamship Company, 387 F.Supp. 163, 169 (D.Del.1974), vacated on other grounds, 535 F.2d 761 (3rd Cir. 1976). The federal courts have come to realize that the policy considerations upon which the traditional rule was built are archaic and lead to inequities. Indeed, the most extensive body of law evidencing a significant trend toward fashioning a federal common law right to contribution concerns contribution for back pay awarded under Title VII." App. to Pet. for Cert. 11b-12b (footnotes omitted).
11
The weight of authority in the lower federal courts supports the District Court's conclusion that a right to contribution is available to employers found liable for backpay under Title VII. See, e. g., Glus v. G. C. Murphy Co., 629 F.2d 248 (CA3 1980), cert. pending, No. 80-461; Stevenson v. International Paper Co., 432 F.Supp. 390 (WD La.1977); International Union of Electrical, Radio, and Machine Workers v. Westinghouse Electric Corp., 73 F.R.D. 57 (WDNY 1976); Grogg v. General Motors Corp., 72 F.R.D. 523 (SDNY 1976); Lynch v. Sperry Rand Corp., 62 F.R.D. 78 (SDNY 1973); Gilbert v. General Electric Co., 59 F.R.D. 267 (ED Va.1973); Osborne v. McCall Printing Co., 4 FEP Cases 276 (SD Ohio 1972); Torockio v. Chamberlain Mfg. Co., 51 F.R.D. 517 (WD Pa.1970); Blanton v. Southern Bell Telephone & Telegraph Co., 49 F.R.D. 162 (ND Ga.1970); Bowe v. Colgate-Palmolive Co., 272 F.Supp. 332 (SD Ind.1967), aff'd in part and rev'd in part, 416 F.2d 711 (CA7 1969). But see Younger v. Glamorgan Pipe & Foundry Co., 418 F.Supp. 743 (WD Va.1976), vacated on other grounds, 561 F.2d 563 (CA4 1977); Harden v. Illinois Bell Telephone Co., No. 74 C 1505 (ND Ill., Apr. 8, 1975). Cf. Communication Workers of America v. Illinois Bell Telephone Co., 12 EPD ¶ 11,275 (N.D.Ill.1976).
12
The District Court entered an appropriate order under 28 U.S.C. § 1292(b), and the Court of Appeals allowed the interlocutory appeal.
13
The District Court made the findings required by Rule 54(b) of the Federal Rules of Civil Procedure.
14
The Court of Appeals described this statutory scheme in detail:
"It is improbable that an employee would ever have an implied cause of action under the Equal Pay Act against his union. The statutory scheme envisions three modes of enforcement and to imply a fourth would be inconsistent with the intent evidenced by the existing three. First, under section 216(a) of title 29, U.S.Code, 'any person' who wilfully violates the Act may be subject to criminal penalties. Under section 216(c), the Secretary of Labor may bring suit to recover money owing 'to any employee or employees.' Finally, section 216(b) of title 29 permits suits by employees against 'any employer' who violates the Act. The statutory scheme of enforcement is comprehensive and by omission, it insulates unions from suits by employees. This statutory protection would certainly be frustrated by a declaration that an employer could recover from a union, once that employer had been found liable to its employees. Of course, we need not—and do not—definitely resolve the issue of an employee's right to sue a union under the Act. We hold only that the likelihood of the implication of such a right is sufficiently remote to preclude the creation of a cause of action against a union for contribution or indemnification. Such a cause of action would, in reality, create liability on the part of the union for the benefit of employees whom Congress did not intend to protect in such a manner." 196 U.S.App.D.C. 443, 448, 606 F.2d 1350, 1355 (1979) (footnote omitted).
15
As our discussion of the implied right of action and federal common law theories will indicate, see Parts II and III, infra, we find that the same legal questions are presented by both the Equal Pay Act and Title VII contribution claims. Because the same analysis is applicable to both claims, we address the Title VII question despite the Court of Appeals' decision to avoid consideration of that question on the merits. See Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 470-471, n. 14, 101 S.Ct. 715, 727, n. 14, 66 L.Ed.2d 659; New York City Transit Authority v. Beazer, 440 U.S. 568, 583-584, n. 24, 99 S.Ct. 1355, 1365, n. 24, 59 L.Ed.2d 587. It should be noted that the reasons for avoiding the unnecessary or premature decision of constitutional questions are not necessarily applicable to the decision of statutory questions. For if an interpretation of a statute misapprehends the actual intent of Congress or is proved by experience to have been unwise, remedial legislation can be promptly enacted.
16
The no-contribution rule of the common law is generally traced to Merryweather v. Nixan, 8 Term Rep. 186, 101 Eng.Rep. 1337 (K.B.1799). However, scholars have persuasively argued that Merryweather cannot be read to establish a general rule prohibiting contribution among joint tortfeasors; rather, they interpret Merryweather to announce only a rule barring contribution in cases of intentional wrongdoing. See, e. g., W. Prosser, Law of Torts § 50, pp. 305-306 (4th ed. 1971); Sullivan, New Perspectives in Antitrust Litigation: Towards a Right of Comparative Contribution, 1980 U.Ill.Law Forum 389, 392-393. Nevertheless, because most American courts understood Merryweather as a general proscription of contribution, the common law in this country traditionally prohibited contribution among joint tortfeasors in all cases. See Union Stockyards Co. v. Chicago B. & Q. R. Co., 196 U.S. 217, 25 S.Ct. 226, 49 L.Ed. 453.
17
Thirty-nine States and the District of Columbia recognize to some extent a right to contribution among joint tortfeasors. In 10 jurisdictions, the common-law rule was initially changed by judicial action. See George's Radio, Inc. v. Capital Transit Co., 75 U.S.App.D.C. 187, 126 F.2d 219 (1942); Skinner v. Reed-Prentice Div. Package Machinery Co., 70 Ill.2d 1, 15 Ill.Dec. 829, 374 N.E.2d 437 (1977); Best v. Yerkes, 247 Iowa 800, 77 N.W.2d 23 (1956); Quatray v. Wicker, 178 La. 289, 151 So. 208 (1933); Bedell v. Reagan, 159 Me. 292, 192 A.2d 24 (1963); Underwriters at Lloyds v. Smith, 166 Minn. 388, 208 N.W. 13 (1926); Royal Indemnity Co. v. Aetna Casualty & Surety Co., 193 Neb. 752, 229 N.W.2d 183 (1975); Goldman v. Mitchell-Fletcher Co., 292 Pa. 354, 141 A. 231 (1928); Davis v. Broad Street Garage, 191 Tenn. 320, 232 S.W.2d 355 (1950); Ellis v. Chicago & N. W. R. Co., 167 Wis. 392, 167 N.W. 1048 (1918). Four of these States later adopted contribution statutes. See La.Civ.Code Ann., Arts. 2100-2105 (West 1977); Pa.Stat.Ann., Tit. 42, §§ 8321-8327 (Purdon Supp.1980); Tenn.Code Ann. §§ 23-3101 to 23-3106 (Supp.1979); Wis.Stat. §§ 113.01-113.11 (1977). The remaining States relied upon legislative action to change the common-law rule. See Alaska Stat.Ann. §§ 09.16.010 to 09.16.060 (1980); Ark.Stat.Ann. §§ 34-1001 to 34-1009 (1962); Cal.Civ.Proc.Code Ann. §§ 875-880 (West 1980 and Supp.1981); Colo.Rev.Stat. §§ 13-50.5-101 to 13-50.5-106 (Supp.1980); Del.Code Ann., Tit. 10, §§ 6301-6308 (1975); Fla.Stat. § 768.31 (Supp.1979); Ga.Code § 105-2012 (1978); Haw.Rev.Stat. §§ 663-11 to 663-17 (1976); Idaho Code §§ 6-803 to 6-806 (1979); Kan.Stat.Ann. § 60-2413 (1976); Ky.Rev.Stat. §§ 412.010-412.060 (1972); Md.Ann.Code, Art. 50, §§ 16-24 (1979); Mass.Gen.Laws Ann., ch. 231B, §§ 1-4 (West Supp.1981); Mich.Comp.Laws Ann. §§ 600.2925a-600.2925d (West Supp.1980-1981); Miss.Code Ann. § 85-5-5 (1972); Mo.Rev.Stat. § 537.060 (1978); Nev.Rev.Stat. §§ 17.225-17.305 (1979); N.J.Stat.Ann. §§ 2A:53A-1 to 2A:53A-5 (West 1952); N.M.Stat.Ann. §§ 41-3-1 to 41-3-8 (1978); N.Y.Civ.Prac.Law §§ 1401-1404 (McKinney 1976); N.C.Gen.Stat. §§ 1B-1 to 1B-6 (1969); N.D.Cent.Code §§ 32-38-01 to 32-38-04 (1976); Or.Rev.Stat. §§ 18.440-18.460 (1979); R.I.Gen.Laws §§ 10-6-1 to 10-6-11 (1969 and Supp.1980); S.D.Comp.Laws §§ 15-8-11 to 15-8-22 (1967); Tex.Rev.Civ.Stat.Ann., Art. 2212a, § 2 (Vernon Supp.1980-1981); Utah Code Ann. §§ 78-27-39 to 78-27-43 (1977); Va.Code §§ 8.01-34, 8.01-35.1 (1977 and Supp.1980); W.Va.Code § 55-7-13 (1981); Wyo.Stat. §§ 1-1-110 to 1-1-113 (1977).
18
See Restatement (Second) of Torts § 886A (1979); Prosser, supra, at 307-309.
19
See Judson v. Peoples Bank & Trust Co., 17 N.J. 67, 88-89, 110 A.2d 24, 34 (1954); Prosser, supra, § 50.
20
Implicit in this assumption are two other important assumptions. First, we assume, as alleged in the complaint, that the unions are in fact at least partially responsible for the Equal Pay Act and Title VII violations established in the Laffey litigation. Second, we assume that the Laffey plaintiffs, if they had so chosen, could have asserted a claim for monetary relief against their unions under both the Equal Pay Act and Title VII. Title VII expressly provides for such private actions. See 42 U.S.C. §§ 2000e-5(f), 2000e-5(g). However, the Equal Pay Act does not expressly create such a right of action, and the lower federal courts have generally refused to find that the Act implicitly created this right. See, e. g., Tuma v. American Can Co., 367 F.Supp. 1178 (NJ 1973). Cf. Hodgson v. Sagner, Inc., 326 F.Supp. 371 (Md.1971), aff'd, 462 F.2d 180 (CA 4 1972).
The Court of Appeals in this case relied upon the uncertain availability of such a remedy under the Equal Pay Act as a basis for rejecting petitioner's claim for contribution. 196 U.S.App.D.C., at 447-449, 606 F.2d, at 1354-1356. The availability of this implied remedy, however, is relevant primarily to the question whether the elements of a contribution claim have been established; if no right to contribution exists at all, it is irrelevant that the elements of a traditional contribution claim may or may not have been established in this case. Because we conclude that no right to contribution exists under either the statute or the federal common law, we need not decide whether the elements of a contribution claim have been established in this case. Therefore, we need not and do not decide the question whether employees have an implied right of action for backpay against their unions for violations of the Equal Pay Act.
21
The EEOC filed a brief as amicus curiae in the Court of Appeals arguing as follows:
"Recognizing a right to contribution for Title VII liability against a person who was not named in an EEOC charge is fully consistent with the substantive and remedial policies of the statute. . . .
". . . Permitting a party to assert a contribution claim against another who has violated the Title, where that person was not named in a charge through inadvertence or design, manifestly serves the primary, prophylactic purpose of Title VII.
* * * * *
"It cannot be inferred that claims for contribution constitute an exception to this policy, because there is no necessary inconsistency between the statutory scheme of Title VII and the assertion of a right to contribution for Title VII liability. This is because an employer seeking contribution is not asserting that it has been injured by conduct unlawful under the statute, but rather it is asserting an equitable claim to reimbursement, enforced at common law, from another wrongdoer who shares common liability." Brief for EEOC as Amicus Curiae in No. 78-1056 (CADC), pp. 12-14.
In this Court, however, the EEOC argues as follows:
"Contribution would undermine the policies, and interfere with enforcement, of the Equal Pay Act. . . . For somewhat different reasons, contribution would undermine the policies, and interfere with enforcement, of Title VII." Brief for United States and EEOC as Amici Curiae 5.
22
See Steelworkers v. Weber, 443 U.S. 193, 198, and n. 1, 99 S.Ct. 2721, 2725, and n. 1, 61 L.Ed.2d 480. Note, Union Liability for Employer Discrimination, 93 Harv.L.Rev. 702 (1980).
23
The federal courts that have recognized a right to contribution under Title VII are divided with respect to whether that right may be asserted against a union that has not been named in a charge filed with the EEOC. Compare Osborne v. McCall Printing Co., 4 FEP Cases 276 (S.D.Ohio 1972); Blanton v. Southern Bell Telephone & Telegraph Co., 49 F.R.D. 162 (N.D.Ga.1970); Torockio v. Chamberlain Mfg. Co., 51 F.R.D. 517 (W.D.Pa.1970), with Stevenson v. International Paper Co., 432 F.Supp. 390 (W.D.La.1977); Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (CA 7 1969). Cf. Gilbert v. General Electric Co., 59 F.R.D. 267 (E.D.Va.1973).
24
Congress expressly provided for contribution among joint wrongdoers in the Securities Act of 1933, see 15 U.S.C. § 77k(f), and in the Securities Exchange Act of 1934, see 15 U.S.C. §§ 78i(e), 78r(b). Thus, at least in these instances, when Congress wanted to provide a right to contribution, it did so expressly.
A number of federal courts have recognized an implied right to contribution under the securities laws where the underlying liability resulted from an implied private right of action. These courts have reasoned that because Congress expressly created a right to contribution to correspond to certain express civil remedies, contribution should also be permitted when liability is based on an implied civil remedy. See, e. g. Heizer Corp. v. Ross, 601 F.2d 330 (CA 7 1979); Globus, Inc. v. Law Research Service, Inc., 318 F.Supp. 955 (SDNY 1970), aff'd, 442 F.2d 1346 (CA 2 1971), cert. denied 404 U.S. 941, 92 S.Ct. 286, 30 L.Ed.2d 254. Whatever the merit of this reasoning, a question we do not now address, these decisions provide no support for petitioner in this case.
25
The Court of Appeals rejected the District Court's literal application of the first Cort v. Ash factor, finding it inappropriate for evaluation of a contribution claim. 196 U.S.App.D.C., at 447, 606 F.2d, at 1354. Rather than focusing on the rights conferred upon employers by the Equal Pay Act, the court reasoned that the proper inquiry was to determine whether employees could bring suit against their unions under this statute. Viewed in this light, the first Cort factor was easily satisfied in this case; employees clearly were within the class for whose especial benefit the Equal Pay Act was enacted. 196 U.S.App.D.C., at 447-448, 606 F.2d, at 1354-1355. However, this analysis confuses the question whether the elements of a contribution claim—in particular, common liability—are established in a given case, with the question whether Congress intended that contribution should be available under any circumstances. See n. 20, supra. The Court of Appeals erred in this case because it failed to focus on whether the party seeking to invoke the implied remedy is a member of a class that Congress intended to benefit.
26
Indeed, inasmuch as petitioner was found guilty in the Laffey litigation of discrimination in violation of these statutes, it is a member of the precise class Congress intended to regulate.
27
Section 3 of the Equal Pay Act provides:
"No labor organization, or its agents, representing employees of an employer having employees subject to any provisions of this section shall cause or attempt to cause such an employer to discriminate against an employee in violation of paragraph (1) of this subsection." 29 U.S.C. § 206(d)(2).
Section 703(c)(3) of Title VII provides:
"(c) . . . It shall be an unlawful employment practice for a labor organization—
* * * * *
"(3) to cause or attempt to cause an employer to discriminate against an individual in violation of this section." 42 U.S.C. § 2000e-2(c)(3).
28
A court's broad power under § 706(g), 42 U.S.C. § 2000e-5(g), to fashion relief against all respondents named in a properly filed charge is not, of course, at issue in this litigation since no charge was filed against either of the respondent unions.
29
See Glus v. G. C. Murphy Co., 629 F.2d, at 265 (Sloviter, J., dissenting).
30
"A frequently stated principle of statutory construction is that when legislation expressly provides a particular remedy or remedies, courts should not expand the coverage of the statute to subsume other remedies." National Railroad Passenger Corp. v. National Association of Railroad Passengers, 414 U.S. 453, 458, 94 S.Ct. 690, 693, 38 L.Ed.2d 646. This principle of statutory construction applies with full force in this case. See also Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 19-20, 100 S.Ct. 242, 247, 62 L.Ed.2d 146.
31
In a case in which neither the statute nor the legislative history reveals a congressional intent to create a private right of action for the benefit of the plaintiff, we need not carry the Cort of Ash inquiry further. See Universities Research Assn., Inc. v. Coutu, 450 U.S. 754, 770-771, n. 21, 101 S.Ct. 1451, 1461-1462, n. 21, 67 L.Ed.2d 662; Touche Ross & Co. v. Redington, 442 U.S. 560, 575-576, 99 S.Ct. 2479, 2489, 61 L.Ed.2d 82; id., at 579-580, 99 S.Ct., at 2490-2491 (BRENNAN, J., concurring).
32
See, e. g., Clearfield Trust Co. v. United States, 318 U.S. 363, 366-367, 63 S.Ct. 573, 575, 87 L.Ed. 838; Miree v. DeKalb County, 433 U.S. 25, 31-32, 97 S.Ct. 2490, 2494-2495, 53 L.Ed.2d 577; United States v. Standard Oil Co., 332 U.S., at 316, 67 S.Ct., at 1612.
33
See, e. g., Illinois v. Milwaukee, 406 U.S. 91, 92 S.Ct. 1385, 31 L.Ed.2d 712; Kansas v. Colorado, 206 U.S. 46, 97, 27 S.Ct. 655, 667, 51 L.Ed. 956; Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92, 110, 58 S.Ct. 803, 810, 82 L.Ed. 1202.
34
Thus, once Congress addresses a subject, even a subject previously governed by federal common law, the justification for lawmaking by the federal courts is greatly diminished. Thereafter, the task of the federal courts is to interpret and apply statutory law, not to create common law. See, e. g., Illinois v. Milwaukee, supra, at 107, 92 S.Ct., at 1394; Arizona v. California, 373 U.S. 546, 565-566, 83 S.Ct. 1468, 1480, 10 L.Ed.2d 542.
35
An analogous situation is presented under § 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a). In Textile Workers v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972, we concluded that § 301(a) supplied a basis for federal jurisdiction over certain cases and an authorization for judicial development of substantive federal law to govern those cases.
36
See, e. g., Edmonds, 443 U.S., at 271-273, 99 S.Ct., at 2762-2763; Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 625, 98 S.Ct. 2010, 2015, 56 L.Ed.2d 581; Halcyon Lines v. Haenn Ship Corp., 342 U.S. 282, 285-287, 72 S.Ct. 277, 279-280, 96 L.Ed. 318; Cooper Stevedoring Co. v. Fritz Kopke Inc., 417 U.S. 106, 111-113, 94 S.Ct. 2174, 2177-2178, 40 L.Ed.2d 694.
37
See, .e. g., Glus v. G. C. Murphy Co., 629 F.2d, at 253; Professional Beauty Supply, Inc. v. National Beauty Supply, Inc., 594 F.2d 1179, 1183 (CA 8 1979); Cohen v. United States, 1975-1 USTC ¶ 9391, p. 86,967 (ED Mich.1975).
38
Of course, federal courts, including this Court, have recognized a right to contribution under state law in cases in which state law supplied the appropriate rule of decision. See, e. g., United States v. Yellow Cab Co., 340 U.S. 543, 71 S.Ct. 399, 95 L.Ed. 523; Gomes v. Brodhurst, 394 F.2d 465 (CA 3 1967). These cases are inapposite here.
39
As we emphasized in Cooper Stevedoring, the tradition of division of damages was unique to admiralty and had been rejected at common law. 417 U.S., at 110, 94 S.Ct., at 2176.
40
As Halcyon Lines, supra, demonstrates, even in admiralty we decline to fashion new remedies if there is a possibility that they may interfere with a legislative program. See Cooper Stevedoring, supra, at 111-113, 94 S.Ct., at 2177-2178.
41
The equitable considerations advanced by petitioner are properly addressed to Congress, not to the federal courts. Congress is best able to evaluate these policy considerations:
"[T]he claim now asserted, though the product of a law Congress passed, is a matter on which Congress has not taken a position. It presents questions of policy on which Congress has not spoken. The selection of that policy which is most advantageous to the whole involves a host of considerations that must be weighed and appraised. That function is more appropriately for those who write the laws, rather than for those who interpret them." United States v. Gilman, 347 U.S. 507, 511-513, 74 S.Ct. 695, 697-698, 98 L.Ed. 898.
42
Presently pending before us is a case presenting the question whether contribution is available under the federal antitrust laws. Texas Industries, Inc. v. Radcliff Materials, Inc., No. 79-1144. Although that question is analogous to the question addressed in this case, we note that Texas Industries involves a substantially different statutory scheme. In antitrust, the federal courts enjoy more flexibility and act more as common-law courts than in other areas governed by federal statute. See National Society of Professional Engineers v. United States, 435 U.S. 679, 688, 98 S.Ct. 1355, 1363, 55 L.Ed.2d 637.
| 12
|
451 U.S. 1
101 S.Ct. 1531
67 L.Ed.2d 694
PENNHURST STATE SCHOOL AND HOSPITAL et al., Petitioners,v.Terri Lee HALDERMAN et al. MAYOR OF CITY OF PHILADELPHIA et al., Petitioners, v. Terri Lee HALDERMAN et al. PENNSYLVANIA ASSOCIATION FOR RETARDED CITIZENS et al., Petitioners, v. PENNHURST STATE SCHOOL AND HOSPITAL et al. COMMISSIONERS AND MENTAL HEALTH/MENTAL RETARDATION ADMINISTRATORS FOR BUCKS COUNTY et al., Petitioners, v. Terri Lee HALDERMAN et al. PENNHURST PARENTS-STAFF ASSOCIATION, Petitioner, v. Terri Lee HALDERMAN et al.
Nos. 79-1404, 79-1408, 79-1414, 79-1415 and 79-1489.
Argued Dec. 8, 1980.
Decided April 20, 1981.
Syllabus
The Developmentally Disabled Assistance and Bill of Rights Act (Act) established a federal-state grant program whereby the Federal Government provides financial assistance to participating States to aid them in creating programs to care for and treat the developmentally disabled. The Act is voluntary, and the States are given the choice of complying with the conditions set forth in the Act or forgoing the benefits of federal funding. The "bill if rights" provision of the Act, 42 U.S.C. §§ 6010(1) and (2), states that mentally retarded persons "have a right to appropriate treatment, services, and habilitation" in "the setting that is least restrictive of . . . personal liberity." Pennsylvania, a participating State, owns and operates Pennhurst State School and Hospital, a facility for the care, and treatment of the mentally retarded. Respondent Halderman, a retarded resident of Pennhurst, brought a class action in Federal District Court on behalf of herself and all other Pennhurst residents against Pennhurst and various officials responsible for its operation. It was alleged, inter alia, that conditions at Pennhurst were unsanitary, inhumane, and dangerous, and that such conditions denied the class members various specified constitutional and statutory rights, including rights under the Act, and, in addition to seeking injunctive and monetary relief, it was urged that Pennhurst be closed and that "community living arrangements" be established for its residents. The District Court found that certain of the claimed rights were violated, and granted the relief sought. The Court of Appeals substantially affirmed, but avoided the constitutional claims and instead held that § 6010 created substantive rights in favor of the mentally retarded, that mentally retarded persons have an implied cause of action to enforce those rights, and that the conditions at Pennhurst violated those rights.
The court further found that Congress enacted the Act pursuant to both § 5 of the Fourteenth Amendment and the spending power.
Held: Section 6010 does not create in favor of the mentally retarded any substantive rights to "appropriate treatment" in the "least restrictive" environment. Pp. 11-32.
(a) The case for inferring congressional intent to create, pursuant to Congress' enacting power under § 5 of the Fourteenth Amendment, enforceable rights and obligations is at its weakest where, as here, the rights asserted imposed affirmative obligations on the States to fund certain services, since it may be assumed that Congress will not implicitly attempt to impose massive financial obligations on the States. Unlike legislation enacted under § 5, however, legislation enacted pursuant to the spending power is much in the nature of a contract; in return for federal funds, the States agree to comply with federally imposed conditions. The legitimacy of Congress' power to legislate under the spending power thus rests on whether the State voluntarily and knowingly accepts the terms of the "contract," but if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously. Pp. 15-18.
(b) applying the above principles to these cases, This court fInds nothing in the Act or its legislative history to suggest that Congress intended to require the States to assume the high cost of providing "appropriate treatment" in the "least restrictive" environment to their mentally retarded citizens. There is virtually no support for the Court of Appeals' conclusion that Congress created rights and obligations pursuant to its power to enforce the Fourteenth Amendment. The Act nowhere states that that is its purpose, but to the contrary the Act's language and structure demonstrate that it is a mere federal-state funding statute. Section 6010, when read in the context of other more specific provisions of the Act, does no more than express a congressional preference for certain kinds of treatment. Far from requiring the States to fund newly declared individual rights, the Act has a systematic focus, seeking to improve care to individuals by encouraging better state planning, coordination, and demonstration projects. Pp. 18-22.
(c) There is no merit to the contention that Congress, acting pursuant to its spending power, conditioned the grant of federal funds on the State's agreeing to underwrite the obligations the Court of Appeals read into § 6010. As noted, the "findings" of § 6010, when viewed in the context of the more specific provisions of the Act, represent general statements of federal policy, not newly created legal duties. Moreover, the "plain language" of § 6010, as well as the administrative interpretation of the provision, also refutes such contention. Section 6010, in contrast to other provisions of the Act that clearly impose conditions, in no way suggests that the grant of federal funds is "conditioned" on a State's funding the rights described therein. Pp. 22-24.
(d) The rule of statutory construction that Congress must express clearly its intent to impose conditions on the grant of federal funds so that the States can knowingly decide whether or not to accept those funds, applies with greatest force where, as here, a State's potential obligations under the Act are largely indeterminate. The crucial inquiry here is not whether a State would knowingly undertake the obligation to provide "appropriate treatment" in the "least restrictive" setting, but whether Congress spoke so clearly that it can fairly be said that the State could make an informed choice. In this case, Congress fell well short of providing clear notice to the States that by accepting funds under the Act they would be obligated to comply with § 6010. Pp. 24-25.
(e) A comparison of the general language of § 6010 with the conditions Congress explicitly imposed on the States under the Act demonstrates that Congress did not intend to place either absolute or conditional obligations on the States under § 6010. Pp. 25-27.
(f) Questions not addressed by the Court of Appeals—as to whether individual mentally retarded persons may bring suit to compel compliance with those conditions that are contained in the Act, the federal constitutional claims, and claims under another federal statute—and issues as to whether state law imposed an obligation on Pennsylvania to provide treatment, are remanded for consideration or reconsideration, respectively, in light of the instant decision. Pp. 27-31.
612 F.2d 84, reversed and remanded.
1
Allen C. Warshaw, Harrisburg, Pa., for petitioners in No. 79-1404.
2
Thomas M. Kittredge, Philadelphia, Pa., for petitioners in Nos. 79-1408 and 79-1415.
3
Joel I. Klein, Washington, D. C., for petitioners in No. 79-1489.
4
David Ferleger, Philadelphia, Pa., for respondents Halderman et al.
5
Drew S. Days, III, Washington, D. C., for respondent United States.
6
Thomas K. Gilhool, Philadelphia, Pa., for respondent Pennsylvania Association for Retarded Citizens.
7
[Amicus Curiae Information from pages 4-5 intentionally omitted]
8
Justice REHNQUIST delivered the opinion of the Court.
9
At issue in these cases is the scope and meaning of the Developmentally Disabled Assistance and Bill of Rights Act of 1975, 89 Stat. 486, is amended, 42 U.S.C. § 6000 et seq. (1976 ed. and Supp.III). The Court of Appeals for the Third Circuit held that the Act created substantive rights in favor of the mentally retarded, that those rights were judicially enforceable, and that conditions at the Pennhurst State School and Hospital (Pennhurst), a facility for the care and treatment of the mentally retarded, violated those rights. For the reasons stated below, we reverse the decision of the Court of Appeals and remand the cases for further proceedings.
10
* The Commonwealth of Pennsylvania owns and operates Pennhurst. Pennhurst is a large institution, housing approximately 1,200 residents. Seventy-five percent of the residents are either "severely" or "profoundly" retarded—that is, with an IQ of less than 35—and a number of the residentsare also physically handicapped. About half of its residents were committed there by court order and half by a parent or other guardian.
11
In 1974, respondent Terri Lee Halderman, a minor retarded resident of Pennhurst, filed suit in the District Court for the Eastern District of Pennsylvania on behalf of herself and all other Pennhurst residents against Pennhurst, its superintendent, and various officials of the Commonwealth of Pennsylvania responsible for the operation of Pennhurst (hereafter petitioners). The additional respondents (hereinafter with respondent Halderman, referred to as respondents) in these cases other mentally retarded persons, the United States, and the Pennsylvania Association for Retarded Citizens (PARC)—subsequently intervened as plaintiffs. PARC added several surrounding counties as defendants, alleging that they were responsible for the commitment of persons to Pennhurst.
12
As amended in 1975, the complaint alleged, inter alia, that conditions at Pennhurst were unsanitary, inhumane, and dangerous. Specifically, the complaint averred that these conditions denied the class members due process and equal protection of the law in violation of the Fourteenth Amendment, inflicted on them cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments, and denied them certain rights conferred by the Rehabilitation Act of 1973, 87 Stat. 355, as amended, 29 U.S.C. § 701 et seq. (1976 ed. and Supp.III), the Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C. §§ 6001 et seq. (1976 ed. and Supp.III), and the Pennsylvania Mental Health and Mental Retardation Act of 1966, Pa.Stat.Ann., Tit. 50, §§ 4101-4704 (Purdon 1969). In addition to seeking injunctive and monetary relief, the complaint urged that Pennhurst be closed and that "community living arrangements"1 be established for its residents.
13
The District Court certified a class consisting of all persons who have been or may become residents of Pennhurst. After a 32 day trial, it issued an opinion, reported at 446 F.Supp. 1295 (1977), making findings of fact and conclusions of law with respect to the conditions at Pennhurst. Its findings of fact are undisputed: Conditions at Pennhurst are not only dangerous, with the residents often physically abused or drugged by staff members, but also inadequate for the "habilitation" of the retarded.2 Indeed, the court found that the physical, intellectual, and emotional skills of some residents have deteriorated at Pennhurst. Id., at 1308-1310.
14
The District Court went on to hold that the mentally retarded have a federal constitutional right to be provided with "minimally adequate habilitation" in the "least restrictive environment," regardless of whether they were voluntarily or involuntarily committed. Id., at 1314-1320. The court also held that there existed a constitutional right to "be free from harm" under the Eighth Amendment, and to be provided with "nondiscriminatory habilitation" under the Equal Protection Clause, Id., at 1320-1322. In addition, it found that § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and § 201 of the Pennsylvania Mental Health and Mental Retardation Act of 1966, Pa.Stat.Ann., Tit. 50, § 4201 (Purdon 1969), provided a right to minimally adequate habilitation in the least restrictive environment.
15
Each of these rights was found to have been violated by the conditions existing at Pennhurst. Indeed, the court held that a large institution such as Pennhurst could not provide adequate habilitation. 446 F.Supp., at 1318. It thus ordered that Pennhurst eventually be closed, that suitable "community living arrangements" be provided for all Pennhurst residents, that plans for the removal of residents from Pennhurst be submitted to the court, that individual treatment plans be developed for each resident with the participation of his or her family, and that conditions at Pennhurst be improved in the interim. The court appointed a Special Master to supervise the implementation of this order. Id., at 1326-1329.
16
The Court of Appeals for the Third Circuit substantially affirmed the District Court's remedial order. 612 F.2d 84 (1979) (en banc). Unlike the District Court, however, the Court of Appeals sought to avoid the constitutional claims raised by respondents and instead rested its order on a construction of the Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C. § 6000 et seq. (1976 ed. and Supp.III).3 It found that §§ 111(1) and (2) of the Act, the 89 Stat. 502, 42 U.S.C. §§ 6010(1) and (2), "bill of rights" provision, grant to mentally retarded persons a right to "appropriate treatment, services, and habilitation" in "the setting that is least restrictive of . . . personal liberty." The court further held that under the test articulated in Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2088, 45 L.Ed.2d 26 (1975), mentally retarded persons have an implied cause of action to enforce that right. 612 F.2d, at 97. Because the court found that Congress enacted the statute pursuant to both § 5 of the Fourteenth Amendment4 and the spending power,5 it declined to consider whether a statute enacted pursuant to the spending power alone "could ever provide the predicate for private substantive rights." Id., at 98. As an alternative ground, the court affirmed the District Court's holding that Pennhurst residents have a state statutory right to adequate "habilitation."
17
The court concluded that the conditions at Pennhurst violated these federal and state statutory rights. As to relief, it affirmed the order of the District Court except insofar as it ordered Pennhurst to be closed. Although the court concluded that "deinstitutionalization is the favored approach to habilitation" in the least restrictive environment, it did not construe the Act to require the closing of large institutions like Pennhurst. Id., at 115. The court thus remanded the case to the District Court for "individual determinations by the court, or by the Special Master, as to the appropriateness of an improved Pennhurst for each such patient" and instructed the District Court or the Master to "engage in a presumption in favor of placing individuals in [community living arrangements]." Id., at 114-115.6
18
Three judges dissented. Although they assumed that the majority was correct in holding that Pennhurst residents have a right to treatment under the Act and an implied cause of action under the Act to enforce that right, they disagreed that the Act imposed a duty on the defendants to provide the "least restrictive treatment" possible. The dissent stated that "the language and structure of the Act, the relevant regulations, and the legislative history all indicate that the States may consider their own resources in providing less restrictive treatment." Id., at 119. It did not believe that the general findings and declarations contained in a funding statute designed to encourage a course of conduct could be used by the federal courts to create absolute obligations on the States.7
19
We granted certiorari to consider petitioners' several challenges to the decision below. 447 U.S. 904, 100 S.Ct. 2984, 64 L.Ed.2d 853. Petitioners first contend that 42 U.S.C. § 6010 does not create in favor of the mentally retarded any substantive rights to "appropriate treatment" in the "least restrictive" environment. Assuming that Congress did intend to create such a right, petitioners question the authority of Congress to impose these affirmative obligations on the States under either its spending power or § 5 of the Fourteenth Amendment. Petitioners next assert that any rights created by the Act are enforceable in federal court only by the Federal Government, not by private parties. Finally, petitioners argue that the court below read the scope of any rights created by the Act too broadly and far exceeded its remedial powers in requiring the Commonwealth to move its residents to less restrictive environments and create individual habilitation plans for the mentally retarded. Because we agree with petitioners' first contention—that § 6010 simply does not create substantive rights—we find it unnecessary to address the remaining issues.
II
20
We turn first to a brief review of the general structure of the Act. It is a federal-state grant program whereby the Federal Government provides financial assistance to participating States to aid them in creating programs to care for and treat the developmentally disabled. Like other federal-state cooperative programs, the Act is voluntary and the States are given the choice of complying with the conditions set forth in the Act or forgoing the benefits of federal funding. See generally King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968); Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970); Harris v. McRae, 448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980). The Commonwealth of Pennsylvania has elected to participate in the program. The Secretary of the Department of Health and Human Services (HHS), the agency responsible for administering the Act, has approved Pennsylvania's state plan and in 1976 disbursed to Pennsylvania approximately $1.6 million. Pennhurst itself receives no federal funds from Pennsylvania's allotment under the Act, though it does receive approximately $6 million per year in Medicaid funds.
21
The Act begins with an exhaustive statement of purposes. 42 U.S.C. § 6000(b)(1) (1976 ed., Supp.III). The "overall purpose" of the Act, as amended in 1978 is:
22
"[T]o assist the states to assure that persons with developmental disabilities receive the care, treatment, and other services necessary to enable them to achieve their maximum potential through a system which coordinates, monitors, plans, and evaluates those services and which ensures the protection of the legal and human rights of persons with developmental disabilities." (Emphasis supplied.)
23
As set forth in the margin, the "specific purposes" of the Act are to "assist" and financially "support" various activities necessary to the provision of comprehensive services to the developmentally disabled. § 6000(b)(2) (1976 ed., Supp.III).8
24
The Act next lists a variety of conditions for the receipt of federal funds. Under § 6005, for example, the Secretary "as a condition of providing assistance" shall require that "each recipient of such assistance take affirmative action" to hire qualified handicapped individuals. Each State, in turn, shall "as a condition" of receiving assistance submit to the Secretary a plan to evaluate the services provided under the Act. § 6009. Each State shall also "as a condition" of receiving assistance "provide the Secretary satisfactory assurances that each program . . . which receives funds from the State's allotment . . . has in effect for each developmentally disabled person who receives services from or under the program a habilitation plan." § 6011(a) (1976 ed., Supp.III). And § 6012(a) (1976 ed., Supp.III) conditions aid on a State's promise to "have in effect a system to protect and advocate the rights of persons with developmental disabilities."
25
At issue here, of course, is § 6010, the "bill of rights" provision. It states in relevant part:
26
"Congress makes the following findings respecting the rights of persons with developmental disabilities:
27
"(1) Persons with developmental disabilities have a right to appropriate treatment, services, and habilitation for such disabilities.
28
"(2) The treatment, services, and habilitation for a person with developmental disabilities should be designed to maximize the developmental potential of the person and should be provided in the setting that is least restrictive of the person's personal liberty.
29
"(3) The Federal Government and the States both have an obligation to assure that public funds are not provided to any institutio[n] . . . that—(A) does not provide treatment, services, and habilitation which is appropriate to the needs of such person; or (B) does not meet the following minimum standards . . . ."
30
Noticeably absent from § 6010 is any language suggesting that § 6010 is a "condition" for the receipt of federal funding under the Act. Section 6010 thus stands in sharp contrast to §§ 6005, 6009, 6011, and 6012.
31
The enabling parts of the Act are the funding sections. 42 U.S.C. §§ 6061-6063 (1976 ed. and Supp.III).9 Those sections describe how funds are to be allotted to the States, require that any State desiring financial assistance submit an overall plan satisfactory to the Secretary of HHS, and require that funds disbursed under the Act be used in accordance with the approved state plan. To be approved by the Secretary, the state plan must comply with several specific conditions set forth in § 6063. It, inter alia, must provide for the establishment of a State Planning Council, § 6063(b)(1), and set out specific objectives to be achieved under the plan, § 6063(b)(2)(A) (1976 ed., Supp.III). Services furnished under the plan must be consistent with standards prescribed by the Secretary, § 6063(b)(5)(A)(i) (1976 ed., Supp.III), and be provided in an individual manner consistent with § 6011, § 6063(b)(5)(B) (1976 ed., Supp.III). The plan must also be supported by assurances that any program receiving assistance is protecting the human rights of the disabled consistent with § 6010, § 6063(b)(5)(C) (1976 ed., Supp.III).10 Each State must also require its State Planning Council to serve as an advocate of persons with developmental disabilities. § 6067 (1976 ed., Supp.III).
32
The Act further provides procedures and sanctions to ensure state compliance with its requirements. The Secretary may, of course, disapprove a state plan, § 6063(c). If a State fails to satisfy the requirements of § 6063, the Secretary may terminate or reduce the federal grant. § 6065 (1976 ed., Supp.III). Any State dissatisfied with the Secretary's disapproval of the plan, or his decision to terminate funding, may appeal to the federal courts of appeals. § 6068. No other cause of action is recognized in the Act.
III
33
As support for its broad remedial order, the Court of Appeals found that 42 U.S.C. § 6010 created substantive rights in favor of the disabled and imposed an obligation on the States to provide, at their own expense, certain kinds of treatment. The initial question before us, then, is one of statutory construction: Did Congress intend in § 6010 to create enforceable rights and obligations?
A.
34
In discerning congressional intent, we necessarily turn to the possible sources of Congress' power to legislate, namely, Congress' power to enforce the Fourteenth Amendment and its power under the Spending Clause to place conditions on the grant of federal funds. Although the court below held that Congress acted under both powers, the respondents themselves disagree on this point. The Halderman respondents argue that § 6010 was enacted pursuant to § 5 of the Fourteenth Amendment. Accordingly, they assert that § 6010 is mandatory on the States, regardless of their receipt of federal funds. The Solicitor General, in contrast, concedes that Congress acted pursuant to its spending power alone. Tr. of Oral Arg. 54. Thus, in his view, § 6010 only applies to those States which accept federal funds.11
35
Although this Court has previously addressed issues going to Congress' power to secure the guarantees of the Fourteenth Amendment, Katzenbach v. Morgan, 384 U.S. 641, 651, 86 S.Ct. 1717, 1723-1724, 16 L.Ed.2d 828 (1966); Oregon v. Mitchell, 400 U.S. 112, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970); Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1975),12 we have had little occasion to consider the appropriate test for determining when Congress intends to enforce those guarantees. Because such legislation imposes congressional policy on a State involuntarily, and because it often intrudes on traditional state authority, we should not quickly attribute to Congress an unstated intent to act under its authority to enforce the Fourteenth Amendment. Our previous cases are wholly consistent with that view, since Congress in those cases expressly articulated its intent to legislate pursuant to § 5. See Katzenbach v. Morgan, supra (intent expressly stated in the Voting Rights Act of 1965); Oregon v. Mitchell, supra (intent expressly stated in the Voting Rights Act Amendments of 1970); Fitzpatrick v. Bitzer, supra (intent expressly stated in both the House and Senate Reports of the 1972 Amendments to the Civil Rights Act of 1964); cf. South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966) (intent to enforce the Fifteenth Amendment expressly stated in the Voting Rights Act of 1965). Those cases, moreover, involved statutes which simply prohibited certain kinds of state conduct. The case for inferring intent is at its weakest where, as here, the rights asserted impose affirmative obligations on the States to fund certain services, since we may assume that Congress will not implicitly attempt to impose massive financial obligations on the States.
36
Turning to Congress' power to legislate pursuant to the spending power, our cases have long recognized that Congress may fix the terms on which it shall disburse federal money to the States. See, e. g., Oklahoma v. CSC, 330 U.S. 127, 67 S.Ct. 544, 91 L.Ed. 794 (1947); King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968); Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970). Unlike legislation enacted under § 5, however, legislation enacted pursuant to the spending power is much in the nature of a contract: in return for federal funds, the States agree to comply with federally imposed conditions. The legitimacy of Congress' power to legislate under the spending power thus rests on whether the State voluntarily and knowingly accepts the terms of the "contract." See Steward Machine Co. v. Davis, 301 U.S. 548, 585-598, 57 S.Ct. 883, 890-896, 81 L.Ed.2d 1279 (1937); Harris v. McRae, 448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980). There can, of course, be no knowing acceptance if a State is unaware of the conditions or is unable to ascertain what is expected of it. Accordingly, if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously.13 Cf. Employees v. Department of Public Health and Welfare, 411 U.S. 279, 285, 93 S.Ct. 1614, 1618, 36 L.Ed.2d 251 (1973); Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). By insisting that Congress speak with a clear voice, we enable the States to exercise their choice knowingly, cognizant of the consequences of their participation.
37
Indeed, in those instances where Congress has intended the States to fund certain entitlements as a condition of receiving federal funds, it has proved capable of saying so explicitly. See, e. g., King v. Smith, supra, at 333, 88 S.Ct., at 2141 (Social Security Act creates a "federally imposed obligation [on the States] to furnish 'aid to families with dependent children . . . with reasonable promptness to all eligible individuals'," quoting the Act). We must carefully inquire, then, whether Congress in § 6010 imposed an obligation on the States to spend state money to fund certain rights as a condition of receiving federal moneys under the Act or whether it spoke merely in precatory terms.
B
38
Applying those principles to these cases, we find nothing in the Act or its legislative history to suggest that Congress intended to require the States to assume the high cost of providing "appropriate treatment" in the "least restrictive environment" to their mentally retarded citizens.
39
There is virtually no support for the lower court's conclusion that Congress created rights and obligations pursuant to its power to enforce the Fourteenth Amendment. The Act nowhere states that that is its purpose. Quite the contrary, the Act's language and structure demonstrate that it is a mere federal-state funding statute. The explicit purposes of the Act are simply "to assist" the States through the use of federal grants to improve the care and treatment of the mentally retarded. § 6000(b) (1976 ed., Supp.III). Nothing in either the "overall" or "specific" purposes of the Act reveals an intent to require the States to fund new, substantive rights. Surely Congress would not have established such elaborate funding incentives had it simply intended to impose absolute obligations on the States.
40
Respondents nonetheless insist that the fact that § 6010 speaks in terms of "rights" supports their view. Their reliance is misplaced. " 'In expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.' " Philbrook v. Glodgett, 421 U.S. 707, 713, 95 S.Ct. 1893, 1898, 44 L.Ed.2d 525 (1975), quoting United States v. Heirs of Boisdore, 8 How. 113, 122, 12 L.Ed. 1009 (1849). See District of Columbia v. Carter, 409 U.S. 418, 420, 93 S.Ct. 602, 604, 34 L.Ed.2d 613 (1973). Contrary to respondents' assertion, the specific language and the legislative history of § 6010 are ambiguous. We are persuaded that § 6010, when read in the context of other more specific provisions of the Act, does no more than express a congressional preference for certain kinds of treatment. It is simply a general statement of "findings" and, as such, is too thin a reed to support the rights and obligations read into it by the court below. The closest one can come in giving § 6010 meaning is that it justifies and supports Congress' appropriation of money under the Act and guides the Secretary in his review of state applications for federal funds. See United States v. Carolene Products Co., 304 U.S. 144, 152, 58 S.Ct. 778, 783, 82 L.Ed. 1234 (1938).14 As this Court recognized in Rosado v. Wyman, supra, at 413, 90 S.Ct., at 1218, "Congress sometimes legislates by innuendo, making declarations of policy and indicating a preference while requiring measures that, though falling short of legislating its goals, serve as a nudge in the preferred directions." This is such a case.
41
The legislative history buttresses our conclusion that Congress intended to encourage, rather than mandate, the provision of better services to the developmentally disabled. The House Committee believed the purpose of the Act was simply to continue an existing federal grant program, designed to promote "effective planning by the states of their programs, initiation of new, needed programs, and filling of gaps among existing efforts." H.R.Rep.No.94-58, pp. 6, 8-9 (1975), U.S.Code Cong. & Admin.News, 1975, pp. 919, 924. Indeed, as passed by the House, the Act contained no "bill of rights" provision whatsoever. The Committee instead merely "applauded" the efforts of others to secure rights for the developmentally disabled. Id., at 7.
42
Respondents, however, argue vigorously that the legislative history of the bill as passed by the Senate evinces Congress' intent to impose absolute obligations on the States to fund certain levels of treatment. Respondents rely most heavily on Title II of the Senate bill which adopted a "Bill of Rights" for the mentally retarded and contained over 400 pages of detailed standards "designed to assist in the protection of the human rights guaranteed under the Constitution." S.Rep.No.94-160, p. 34 (1975). The Report also noted that the "Federal Government has a responsibility to provide equal protection under the law to all citizens." Id., at 32. And Senator Stafford stated on the Senate floor that "Title II was added to the bill to assist in the protection of the rights guaranteed under our Constitution for those individuals that will require institutionalization." 121 Cong.Rec. 16516 (1975).
43
Respondents read too much into these scattered bits of legislative history. In the first place, it is by no means clear that even the Senate bill created new substantive rights in favor of the disabled.15 Despite the general discussion of equal protection guarantees in the Senate Report, the Committee's view of the Act was quite modest. It explained that the purpose of Title II was simply "to stimulate the States to develop alternative programs of care for mentally retarded." S.Rep.No.94-160, supra, at 1. It viewed Title II as satisfying the "need for a clear exposition of the purposes for which support should be provided under the authorities of the Act." Id., at 3. Nor are the remarks of various Senators to the contrary. Senator Stafford spoke merely in terms of "assisting" the States. Senator Randolph, in introducing the bill on the floor of the Senate, confirmed the Senate's limited purpose. He said:
44
"[W]e have developed a bill whose thrust, like the 1970 act, is to assist States in developing a comprehensive plan to bring together available resources in a coordinated way so developmentally disabled individuals are appropriately served. Our goal is more thorough and careful planning and more effective evaluation." 121 Cong.Rec. 16514 (1975) (emphasis supplied).
45
Even Senator Javits, the principal proponent of Title II, did not read the Act as establishing new substantive rights to enforce those guaranteed by the Constitution. He explained that Title II, "represents a reaffirmation of the basic human and civil rights of all citizens. It offers the direction to provide a valid and realistic framework for improving the overall situation of his country's mentally retarded and other developmentally disabled individuals." Id., at 16519 (emphasis supplied).
46
In any event, whatever the Senate's view of its bill, Congress declined to adopt it. The Conference Committee rejected the explicit standards of Title II and instead compromised on the more general statement of "findings" in what later became § 6010. H.R.Conf.Rep.No.94-473, pp. 41, 43 (1975). As Senator Javits noted with respect to the compromise, "Title II of the Conference agreement establishes a clear Federal policy that the mentally retarded have a right to appropriate treatment, services, and habilitation." 121 Cong.Rec. 29820 (1975) (emphasis supplied).
47
In sum, nothing suggests that Congress intended the Act to be something other than a typical funding statute.16 Far from requiring the States to fund newly declared individual rights, the Act has a systematic focus, seeking to improve care to individuals by encouraging better state planning, coordination, and demonstration projects. Much like the Medicaid statute considered in Harris v. McRae, 448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980), the Act at issue here "was designed as a cooperative program of shared responsibilit[ies], not as a device for the Federal Government to compel a State to provide services that Congress itself is unwilling to fund." Id., at 309, 100 S.Ct., at 2684.
48
There remains the contention of the Solicitor General that Congress, acting pursuant to its spending power, conditioned the grant of federal money on the State's agreeing to underwrite the obligations the Court of Appeals read into § 6010. We find that contention wholly without merit. As amply demonstrated above, the "findings" in § 6010, when viewed in the context of the more specific provisions of the Act, represent general statements of federal policy, not newly created legal duties.
49
The "plain language" of § 6010 also refutes the Solicitor General's contention. When Congress intended to impose conditions on the grant of federal funds, as in §§ 6005, 6009, 6011, 6012, 6063, and 6067, it proved capable of doing so in clear terms. Section 6010, in marked contrast, in no way suggests that the grant of federal funds is "conditioned" on a State's funding the rights described therein. The existence of explicit conditions throughout the Act, and the absence of conditional language in § 6010, manifest the limited meaning of § 6010.
50
Equally telling is the fact that the Secretary has specifically rejected the position of the Solicitor General. The purpose of the Act, according to the Secretary, is merely "to improve and coordinate the provision of services to persons with developmental disabilities." 45 CFR § 1385.1 (1979). The Secretary acknowledges that "[n]o authority was included in [the 1975] Act to allow the Department to withhold funds from States on the basis of failure to meet the findings [of § 6010]." 45 Fed.Reg. 31006 (1980). If funds cannot be terminated for a State's failure to comply with § 6010, § 6010 can hardly be considered a "condition" of the grant of federal funds.17 The Secretary's interpretation of § 6010, moreover, is well supported by the legislative history. In reaching the compromise on § 6010, the Conference Committee rejected the Senate's proposal to terminate federal funding of States which failed to comply with the standards enumerated in Title II of the Senate's bill, see n. 15, supra. By eliminating that sanction, Congress made clear that the provisions of § 6010 were intended to be hortatory, not mandatory.18
51
The fact that Congress granted to Pennsylvania only $1.6 million in 1976, a sum woefully inadequate to meet the enormous financial burden of providing "appropriate" treatment in the "least restrictive" setting, confirms that Congress must have had a limited purpose in enacting § 6010. When Congress does impose affirmative obligations on the States, it usually makes a far more substantial contribution to defray costs. Harris v. McRae, supra. It defies common sense, in short, to suppose that Congress implicitly imposed this massive obligation on participating States.
52
Our conclusion is also buttressed by the rule of statutory construction established above, that Congress must express clearly its intent to impose conditions on the grant of federal funds so that the States can knowingly decide whether or not to accept those funds. That canon applies with greatest force where, as here, a State's potential obligations under the Act are largely indeterminate. It is difficult to know what is meant bY providing "appropriate treatment" in the "least restrictive" setting, and it is unlikely that a State would have accepted federal funds had it known it would be bound to provide such treatment. The crucial inquiry, however, is not whether a State would knowingly undertake that obligation, but whether Congress spoke so clearly that we can fairly say that the State could make an informed choice. In this case, Congress fell well short of providing clear notice to the States that they, by accepting funds under the Act, would indeed be obligated to comply with § 6010. Not only does § 6010 lack conditional language, but is strains credulity to argue that participating States should have known of their "obligations" under § 6010 when the Secretary of HHS, the governmental agency responsible for the administration of the Act and the agency with which the participating States have the most contact, has never understood § 6010 to impose conditions on participating States. Though Congress' power to legislate under the spending power is broad, it does not include surprising participating States with post acceptance or "retroactive" conditions.
53
Finally, a brief comparison of the general language of § 6010 with the conditions Congress explicitly imposed on the States demonstrates that Congress did not intend to place either absolute or conditional obligations on the States. The Court of Appeals, for example, read § 6010 to impose an obligation to provide habilitation plans for all developmentally disabled persons. But Congress required habilitation plans under § 6011 "only when the Federal assistance under the Act contributes a portion of the cost of the habilitation services to the developmentally disabled person." H.R.Conf.Rep.No. 94-473, p. 43, U.S.Code Cong. & Admin.News 1975, p. 963 (1975). If the Court of Appeals were correct, of course, there would be no purpose for Congress to have required habilitation plans at all, or to have limited the requirement to certain programs, since such plans automatically would have been mandated in all programs by the more inclusive requirements of § 6010.
54
Second, the specific condition imposed in § 6063(b)(5)(C) (1976 ed., Supp.III) requires each state plan to
55
"contain or be supported by assurances satisfactory to the Secretary that the human rights of all persons with developmental disabilities . . . who are receiving treatment, services, or habilitation, under programs assisted under this chapter will be protected consistent with section 6010 of this title (relating to rights of the developmentally disabled)."
56
Once again, these limitations—both as to programs assisted under the Act and as to affording protection in a manner that is "consistent with § 6010"—would be unnecessary if, as the court below ruled, all state programs were required to fund the rights described in § 6010.
57
And third, the court below held that § 6010 mandated deinstitutionalization for most, if not all, mentally retarded persons. As originally enacted in 1975, however, the Act required only that each State use not less than 30 percent of its allotment "for the purpose of assisting it in developing and implementing plans designed to eliminate inappropriate placement in institutions of persons with developmental disabilities." § 6062(a)(4).19 Three years later, Congress relieved the States of even that modest duty. Instead of requiring the States to use a certain portion of their allotment to support deinstitutionalization, Congress required the States to concentrate their efforts in at least one of four areas, only one of which was "community living arrangements." § 6063(b)(4)(A)(ii) (1976 ed., Supp.III). Had § 6010 created a right to deinstitutionalization, the policy choices contemplated by both the 1975 and 1978 provisions would be meaningless.
58
In sum, the court below failed to recognize the well-settled distinction between congressional "encouragement" of state programs and the imposition of binding obligations on the States. Harris v. McRae, 448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980). Relying on that distinction, this Court insoutheastern community coLlege v. dAvis, 442 u.s. 397, 99 S.CT. 2361, 60 L.Ed.2d 980 (1979), rejected a claim that § 504 of the Rehabilitation Act of 1973, which bars discrimination against handicapped persons in federally funded programs, obligates schools to take affirmative steps to eliminate problems raised by an applicant's hearing disability. Finding that "state agencies such as Southeastern are only 'encourage[d] . . . to adopt and implement such policies and procedures.' " Id., at 410, 99 S.Ct. at 2369 (quoting the Act), we stressed that "Congress understood [that] accommodation of the needs of handicapped individuals may require affirmative action and knew how to provide for it in those instances where it wished to do so." Id., at 411, 99 S.Ct., at 2369. Likewise in this case, Congress was aware of the need of developmentally disabled persons and plainly understood the difference, financial and otherwise, between encouraging a specified type of treatment and mandating it.
IV
59
Respondents also suggest that they may bring suit to compel compliance with those conditions which are contained in the Act. Of particular relevance to these cases are § 6011(a) (1976 ed., Supp.III) and § 6063(b)(5)(C) (1976 ed., Supp.III), which are quoted supra, at 12-13, 26.20
60
That claim raises several issues. First, it must be determined whether respondents have a private cause of action to compel state compliance with those conditions.21 In legislation enacted pursuant to the spending power, the typical remedy for state noncompliance with federally imposed conditions is not a private cause of action for noncompliance but rather action by the Federal Government to terminate funds to the State. See § 6065 (1976 ed., Supp.III). Just last Term, however, in Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), we held that 42 U.S.C. § 1983 provides a cause of action for state deprivations of "rights secured" by "the laws" of the United States. See 448 U.S., at 4, 100 S.Ct. at 2504. Whether Thiboutot controls these cases depends on two factors. First, respondents here, unlike the plaintiffs in Thiboutot, who alleged that state law prevented him from receiving federal funds to which he was entitled, can only claim that the state plan has not provided adequate "assurances" to the Secretary. It is at least an open question whether an individual's interest in having a State provide those "assurances" is a "right secured" by the laws of the United States within the meaning of § 1983. Second, Justice POWELL in dissent in Thiboutot suggested that § 1983 would not be available where the "governing statute provides an exclusive remedy for violations of its terms." Id., at 22, n. 11, 100 S.Ct., at 2513. It is unclear whether the express remedy contained in this Act is exclusive.
61
Second, it is not at all clear that the Pennhurst petitioners have violated § 6011 and § 6063(b)(5)(C) (1976 ed. and Supp.III). Those sections, by their terms, only refer to "programs assisted" under the Act. Because Pennhurst does not receive federal funds under the Act, it is arguably not a "program assisted." Thus, there may be no obligation on the State under § 6011 to assure the Secretary that each resident of Pennhurst have a habilitation plan, or assure the Secretary under § 6063(b)(5)(C) that Pennhurst residents are being provided services consistent with § 6010.22
62
Third, there is the question of remedy. Respondents' relief may well be limited to enjoining the Federal Government from providing funds to the Commonwealth. As we stated in Rosado v. Wyman, 397 U.S., at 420, 90 S.Ct., at 1222, welfare claimants were "entitled to declaratory relief and an appropriate injunction by the District Court against the payment of federal monies . . . should the State not develop a conforming plan within a reasonable period of time." (Emphasis in original.) There, we rejected the suggestion that the courts could require the State to pay the additional sums demanded by compliance with federal standards. Relying on King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968), we explained that "the State had alternative choices of assuming the additional cost" of complying with the federal standard "or not using federal funds." 397 U.S., at 420-421, 90 S.Ct., at 1222. Accordingly, we remanded the case so that the State could exercise that choice.
63
In other instances, however, we have implicitly departed from that rule and have affirmed lower court decisions enjoining a State from enforcing any provisions which conflict with federal law in violation of the Supremacy Clause, e. g., Carleson v. Remillard, 406 U.S. 598, 92 S.Ct. 1932, 32 L.Ed.2d 352 (1972). In still other cases, we have struck down state laws without addressing the form of relief, e. g., Townsend v. Swank, 404 U.S. 282, 92 S.Ct. 502, 30 L.Ed.2d 448 (1971). In no case, however, have we required a State to provide money to plaintiffs much less required a State to take on such open-ended and potentially burdensome obligations as providing "appropriate" treatment in the "least restrictive" environment. And because this is a suit in federal court, anything but prospective relief would pose serious questions under the Eleventh Amendment. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974).23
64
These are all difficult questions. Because the Court of Appeals has not addressed these issues, however, we remand the issues for consideration in light of our decision here.
V
65
After finding that federal law imposed an obligation on the States to provide treatment, the court below examined state law and found that it too imposed such a requirement. 612 F.2d, at 100-103. The court looked to § 4201 of the Pennsylvania Mental Health and Mental Retardation Act of 1966, which provides in pertinent part:
66
"The department of [Public Welfare] shall have power, and its duty shall be:
67
"(1) To assure within the State the availability and equitable provision of adequate mental health and mental retardation services for all persons who need them, regardless of religion, race, color, national origin, settlement, residence, or economic or social status." Pa.Stat.Ann., Tit. 50, § 4201 (Purdon 1969).
68
Respondents contend that, even if we conclude that relief is unavailable under federal law, state law adequately supports the relief ordered by the Court of Appeals. There are, however, two difficulties with that argument. First, the lower court's finding that state law provides a right to treatment may well have been colored by its holding with respect to § 6010. Second, the court held only that there is a right to "treatment," not that there is a state right to treatment in the "least restrictive" environment. As such, it is unclear whether state law provides an independent and adequate ground which can support the court's remedial order. Accordingly, we remand the state-law issue for reconsideration in light of our decision here.24
69
For similar reasons, we also remand to the Court of Appeals those issues it did not address, namely, respondents' federal constitutional claims and their claims under § 504 of the Rehabilitation Act.
VI
70
Congress in recent years has enacted several laws designed to improve the way in which this Nation treats the mentally retarded.25 The Developmentally Disabled Assistance and Bill of Rights Act is one such law. It establishes a national policy to provide better care and treatment to the retarded and creates funding incentives to induce the States to do so. But the Act does no more than that. We would be attributing far too much to Congress if we held that it required the States, at their own expense, to provide certain kinds of treatment. Accordingly, we reverse the principal holding of the Court of Appeals and remand for further proceedings consistent with this opinion.
71
Reversed and remanded.
72
Justice BLACKMUN, concurring in part and concurring in the judgment.
73
Although I agree that the judgment of the Court of Appeals must be reversed, and although I am in accord with much of what the Court says about the meaning of this confused and confusing legislation, see ante, at 11-27, I do not join the Court's advisory discussion in Part IV of its opinion. In that Part, the Court properly and correctly notes, ante, at 30, that it leaves open for consideration on remand whether, and in what form, §§ 6011 and 6063 create rights that are enforceable by private parties like those that make up these plaintiff classes. The Court, however, seems to me strongly to intimate that it will not view kindly any future positive holding in that direction. I agree that this specific question was not presented and is not today decided, but I decline to join what appears to be a negative attitude on the part of the Court to what is a possible construction of the Act.
74
It seems plain to me that Congress, in enacting § 6010, intended to do more than merely set out politically self-serving but essentially meaningless language about what the developmentally disabled deserve at the hands of state and federal authorities. A perfectly reasonable judicial interpretation of § 6010, which would avoid the odd and perhaps dangerous precedent of ascribing no meaning to a congressional enactment, would observe and give effect to the linkage between § 6010 and § 6063. As the Court points out, ante, at 12, a State that accepts funds under the Act becomes legally obligated to submit a state plan containing "assurances satisfactory to the Secretary that the human rights of all persons with developmental disabilities . . . who are receiving treatment, services, or habilitation under programs assisted under this chapter will be protected consistent with section 6010 . . . ." 42 U.S.C. § 6063(b)(5)(C) (1976 ed., Supp. III).
75
That private parties, the intended beneficiaries of the Act, should have the power to enforce the modest legal content of § 6063 would not be an unusual application of our precedents, even for a legislative scheme that involves federal regulatory supervision of state operations. See, e. g., Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979); Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970). See also Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980).
76
Finally, I have difficulty with the Court's suggestion, ante, at 28-29, that Pennhurst should be free of the Act's requirements because it does not directly receive funds under the Act. The Commonwealth's program for the institutionalized developmentally disabled is unified in one administration. To restrict the definition of "program assisted" in § 6063 to specific institutions within a unified program would allow a State to insulate substandard institutions from federal requirements merely by allocating federal funds to acceptable premises and state funds to substandard ones.
77
Justice WHITE, with whom Justice BRENNAN and Justice MARSHALL join, dissenting in part.
78
Pennhurst is a residential institution for the retarded operated by the Commonwealth of Pennsylvania and serving a five county area. Roughly half of its 1,200 residents were admitted upon application of their parents or guardians while the remainder were committed pursuant to court order. After extensive discovery and a lengthy trial, the District Court held that the conditions of confinement at Pennhurst violated the rights of its residents under the Eighth and Fourteenth Amendments of the United States Constitution, state law,1 and the Rehabilitation Act of 1973, 29 U.S.C. § 794, and entered a detailed remedial order requiring the eventual closing of Pennhurst in favor of community living arrangements for Pennhurst's displaced residents. 446 F.Supp. 1295 (ED Pa.1978). On appeal, the Court of Appeals for the Third Circuit determined that the result reached by the District Court was proper under the Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C. § 6000 et seq. (1976 ed. and Supp.III) (Act), although relief under that statute had not initially been raised in that court. 612 F.2d 84 (1979) (en banc). The Court of Appeals determined that the Act created judicially cognizable rights to treatment and to receipt of care in the least restrictive environment, and that the right to treatment was also supported by state law. The court essentially affirmed the remedial order entered by the District Court with one significant exception.2 Finding that the legislative history did not require the abandonment of large institutional facilities, the Court of Appeals held that the District Court erred in ordering Pennhurst to be closed. Rather, the Court of Appeals required that each resident of Pennhurst be afforded an individual hearing before a Special Master to determine the appropriate level of institutionalization with a presumption established that community-based living arrangements were proper.
79
In essence, the Court concludes that the so-called "Bill of Rights" section of the Act, 42 U.S.C. § 6010, merely serves to establish guidelines which States should endeavor to fulfill, but which have no real effect except to the extent that the Secretary of Health and Human Services chooses to use the criteria established by § 6010 in determining funding under the Act. In my view, this reading misconceives the important purposes Congress intended § 6010 to serve. That section, as confirmed by its legislative history, was intended by Congress to establish requirements which participating States had to meet in providing care to the developmentally disabled. The fact that Congress spoke in generalized terms rather than the language of regulatory minutia cannot make nugatory actions so carefully undertaken.
80
* As an initial matter, I agree that § 6010 was enacted pursuant to Congress' spending power, and not pursuant to its power under § 5 of the Fourteenth Amendment. Accordingly, I agree that the Act was not intended to place duties on States independent of their participation in the program established by the Act. The Court of Appeals, in the section of its opinion concerning the exercise of a private cause of action, determined that § 6010 was passed pursuant to § 5, reasoning that since the Fourteenth Amendment included a right " 'to be free from, and to obtain judicial relief for, unjustified intrusions on personal security,' " 612 F.2d, at 98, quoting Ingraham v. Wright, 430 U.S. 651, 673, 97 S.Ct. 1401, 1413, 51 L.Ed.2d 711 (1977), congressional passage of § 6010 indicated its desire to enforce this interest.3 Congressional action under the Enforcement Clause of the Fourteenth Amendment, however, has very significant consequences, see Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976), and given these ramifications, it should not be lightly assumed that Congress acted pursuant to its power under § 5 in passing the Act.
81
Here, there is no conclusive basis for determining that Congress acted pursuant to § 5. Nothing in the statutory language refers to the Fourteenth Amendment. Section 6010 was but one part of a bill whose underlying purpose was to extend and modify an existing federal-state grant program. The initial program was unquestionably passed pursuant to Congress' spending power. Moreover, § 6010(3) is by its express terms a limitation on federal and state spending. The rights articulated in § 6010 are also cross-referenced in § 6063 (1976 ed. and Supp.III), which details the operation of the grant program.4 Thus, all objective considerations connected with § 6010 and its operation suggest that Congress enacted it pursuant to its Spending Clause powers.
82
Of course, resolution of the § 5 issue does not determine the issue whether § 6010 was intended by Congress to have substantive consequences as part of a statute enacted under Art. I, § 8, cl. 1, and in my view, the majority makes far too much of the fact that § 6010 was not passed pursuant to the Fourteenth Amendment. While this conclusion has significant ramifications for the appropriate remedy for violations of the Act, it does not follow that § 6010 was to have no impact or effect besides the mere "encouragement" of state action and created no obligations on participating States and no rights in those being served by programs maintained by a State in cooperation with the Federal Government.
II
83
The language and scheme of the Act make it plain enough to me that Congress intended § 6010, although couched in terms of rights, to serve as requirements that the participating States must observe in receiving federal funds under the provisions of the Act. That Congress was deadly serious in stating that the developmentally disabled had entitlements which a State must respect if it were to participate in a program can hardly be doubted.
84
Federal involvement in state provision of health care to those persons with developmental disabilities began in 1963 with the passage of the Mental Retardation Facilities Construction Act, Pub.L. 88-164, 77 Stat. 282. That statute provided funds for the construction of health care facilities and specifically encouraged the development of community-based programs.5 The Developmentally Disabled Act, technically an amendment to the Mental Retardation and Facilities Construction Act, was passed in light of Congress' continued concern about the quality of health care being provided to the developmentally disabled and that federal support for improved care should be increased. A central expression of this concern was § 6010, which declares by way of four congressional "findings" that:
85
1. Persons with developmental disabilities have a "right to appropriate treatment, services, and habilitation."
86
2. Treatment should be designed to maximize an individual's potential and should be provided "in the setting that is least restrictive of the person's personal liberty."
87
3. The State and Federal Governments have an obligation to assure that public funds are not provided to institutions or programs that do not provide "appropriate treatment, services and habilitation" or do not meet minimum standards of care in six specific respects such as diet, dental care, and the use of force or chemical restraints.
88
4. Rehabilitative programs should meet standards designed to assure the most favorable possible outcome for patients, and these standards should be appropriate to the needs of those being served, depending on the type of institution involved.6
89
As clearly as words can, § 6010(1) declares that the developmentally disabled have the right to appropriate treatment, services, and habilitation. The ensuing parts of § 6010 implement this basic declaration. Section 6010(3), for example, obligates the Federal and State Governments not to spend the public funds on programs that do not carry out the basic requirement of § 6010(1) and, more specifically, do not meet minimum standards with respect to certain aspects of treatment and custody. Sections 6010(2) and (4) are phrased in less mandatory terms, but the former unmistakably states a preference for treatment in the least restrictive environment and the latter for establishing standards for assuring the appropriate care of the developmentally disabled in relation to the type of institution involved. Both sections, by delineating in some respects the meaning of "appropriate" treatment, services, and habilitation, implement the basic rights that the developmentally disabled must be afforded for the purpose of the programs envisioned by the Act. Hence, neither section could be ignored by the Secretary in carrying out his duties under the statute.
90
Standing on its own bottom, therefore, § 6010 cannot be treated as only wishful thinking on the part of Congress or as playing some fanciful role in the implementation of the Act. The section clearly states rights which the developmentally disabled are to be provided as against a participating State. But § 6010 does not stand in isolation. Other provisions of the Act confirm the view that participating States must take account of § 6010 and that the section is an integral part of an Act cast in the pattern of extending aid conditioned on state compliance with specified conditions. Section 6063(a) requires that for a State to take advantage of the Act, it must have a "plan submitted to and approved by the Secretary. . . ." Section 6063(b) (1976 ed., Supp.III), which is entitled "Conditions for Approval," states that "[i]n order to be approved by the Secretary under this section, a State plan for the provision of services and facilities for persons with developmental disabilities must" be filed; and in its original form, § 6063 required the plan to satisfy the conditions stated in some 30 numbered paragraphs. The 24th specification was that the plan must "contain or be supported by assurances satisfactory to the Secretary that the human rights of all persons with developmental disabilities . . . who are receiving treatment, services, or habilitation under programs assisted under this chapter will be protected." Any doubts that the human rights referred to in § 6063(b)(24) corresponded to those specified in § 6010 were removed in 1978 when § 6063(b) WAS amended to restate the conditions which a plan must satisfy. Section 6063(b)(5)(C) (1976 ed., Supp.III) now provides:
91
"The plan must contain or be supported by assurances satisfactory to the Secretary that the human rights of all persons with developmental disabilities (especially those persons without familial protection) who are receiving treatment, services, or habilitation under programs assisted under this chapter will be protected consistent with section 6010 of this title (relating to the rights of the developmentally disabled)."
92
Pennsylvania has submitted a plan under § 6063, that is, a plan providing services for the developmentally disabled in Pennsylvania. The Court states that the plan has been approved and that funds have been allocated to the State. These funds will necessarily be supporting Pennsylvania's "programs" for providing treatment, services, or habilitation within the meaning of § 6063(b)(5)(C); and under the express terms of that section, Pennsylvania is required to respect the § 6010 rights of the developmentally disabled in its state institutions, including Pennhurst, and to give the Secretary adequate assurances in this respect. This is true whether or not Pennhurst itself directly receives any share of the State's allocation. It should also be noted that § 6063(b)(3)(A) (1976 ed., Supp.III) provides that "the funds paid to the state under § 6062 of this title will be used to make a significant contribution toward strengthening services for persons with developmental disabilities through agencies in the various political subdivisions of the State." Thus, funds received under the Act were intended to result in the improvement of care at institutions like Pennhurst.7
III
93
The legislative history of § 6010 confirms the view that Congress intended § 6010 to have substantive significance. Both the initial House of Representatives and Senate versions of the Act contained provisions indicating congressional concern with the character and quality of care for the developmentally disabled. The House bill, H.R. 4005, 94th Cong., 1st Sess. (1975), did not have a bill of rights section akin to § 6010. It did, however, have a provision that required States to spend at least 10% of their respective allotments "for the purpose of assisting . . . in developing and implementing plans designed to eliminate inappropriate placement in institutions of persons with developmental disabilities." § 5(b)(4). Debate in the House of Representatives indicated that the spending restriction was designed to promote community-based facilities to counteract the unfortunate practice of widespread institutionalization of developmentally disabled persons.8 ¢s43¢s The Senate version of the Act, S. 462, 94th Cong., 1st Sess. (1975), contained a separate Title II, called the "Bill of Rights for Mentally Retarded and Other Persons with Developmental Disabilities," setting forth in extensive detail specific standards which state programs and facilities were required to meet. The impetus behind the Senate's "Bill of Rights" was the recognition by several Senators of the tragic conditions of confinement faced by many residents of large institutions.9 An often repeated purpose of the Bill of Rights was to foster the development of community-based facilities as well as to encourage overall better care and treatment for the mentally disabled.10 At the same time, there was the realization that institutions still had a significant role to play in the treatment of the mentally disabled.11
94
The Senate's version of Title II provided two methods for the States to comply with the requirements of the Act. First, a State wishing to participate could opt to follow guidelines to be established by the Secretary under Part B of Title II, § 210(a). Alternatively, a State could decide to meet the extensive standards specified in Parts C and D relating to residential and community facilities respectively. Under the Senate bill, it was clear that the standards encompassed by the alternative procedures were not merely hortatory. That bill provided that within one year after the enactment, a State desiring funding must provide assurances to the Secretary that "each such facility or agency has established a plan for achieving compliance no later than 5 years after the date of enactment . . . ." § 203(a). After the 5year period, "no residential facility or program of community care for individuals with developmental disabilities shall be eligible to receive payments either directly or indirectly under any Federal law, unless such residential facility meets the standards promulgated under parts C or D of this title or has demonstrated to the Secretary for a reasonable period of time that it has actively implemented the requirements of part B." § 206(a).
95
Following Senate and House passage, the different bills came to a Conference Committee. The resulting compromise kept the House 10% spending restriction which the Conference Report noted was "designed to eliminate inappropriate placement in institutions of persons with developmental disabilities . . . ." H.R.Conf.Rep.No.94-473, p. 33 (1975), U.S.Code Cong. & Admin.News 1975, p. 952. The Senate's detailed Bill of Rights was replaced by § 6010, a comparatively brief statement of the developmentally disabled's rights expressed in general terms. The specific mechanism of alternative compliance standards was omitted. The Conference Report set forth the following as the statement of purpose of the Conference version of the Senate's Title II.
96
"The conference substitute contains a compromise which enumerates Congressional findings respecting the rights of persons with developmental disabilities. These include findings that the developmentally disabled have a right to appropriate treatment, services and habilitation; that such treatment, services and habilitation should be designed to maximize the developmental potential of the person and be provided in the setting that is least restrictive to his personal liberty; that the Federal government and the States have an obligation to assure that public funds are not provided in programs which do not provide appropriate treatment, services and habilitation or do not meet minimum standards respecting diet, medical and dental services, use of restraints, visiting hours and compliance with fire and safety codes; and that programs for the developmentally disabled should meet appropriate standards including standards adjusted for the size of the institutions . . . .
97
"These rights are generally included in the conference substitute in recognition by the conferees that the developmentally disabled, particularly those who have the misfortune to require institutionalization, have a right to receive appropriate treatment for the conditions for which they are institutionalized, and that this right should be protected and assured by the Congress and the courts." H.R.Conf.Rep.No.94-473, supra, at 41-42 U.S.Code Cong. & Admin.News 1975, p. 961.
98
Following the Conference Report, the Act was passed with minimal debate.12
99
The Senate's version of the Bill of Rights was hundreds of pages long and constituted an attempt to define the standards and conditions of state participation with precision and in great detail. The Conference Report makes clear that the detailed version was rejected, not to substitute a merely advisory section for an extended statement of conditions, but rather to substitute a generalized statement of entitlements that a participating State must respect and that would adequately meet congressional concerns without encountering the inflexibility of legislatively prescribed conditions of treatment and care. There is no basis for considering the shortened statement as intended to play a qualitatively lesser role in the scheme of the Act. Rather, the compromise is best understood as a rejection of either the need or the ability of Congress to specify the required standards in a manner resembling administrative regulations.13
IV
100
As previously stated, § 6010 should be understood to require a State receiving funds under the Act to observe the rights established by the provision. None of the concerns expressed by the Court present sufficient reason to avoid or overcome the statutory mandate.
101
It is true that the terms "treatment, services and habilitation" to which § 6010 declares an entitlement are not self-defining. But it does not follow that the participating States are free to ignore them. Under § 6010(3)(A), as already indicated, the State has an "obligation" not to spend public funds on any institutional or other residential facility that "does not provide treatment, services and habilitation which is appropriate to the needs of such persons." If federal funds are to be used to support a program, the program must (1) provide for the § 6010 rights to appropriate treatment, services, and habilitation; (2) observe the direction in § 6010(2) that treatment, services, and habilitation be furnished in the least restrictive setting; (3) satisfy the minimum standards referred to in § 6010(3)(B); and (4) follow the provisions of § 6010(4), which offers further guidance for the participating State in furnishing the treatment, services, and habilitation to which the developmentally disabled are entitled.
102
Furthermore, before approving a state plan, the Secretary must assure himself that the rights identified under § 6010 will be adequately protected by the participating State. Why the language of an express "condition," which § 6010 lacks, should be the only touchstone for identifying a State's obligation is difficult to fathom.14 Indeed, identifying "rights" and requiring the participating State to observe them seems a far stronger indicia of congressional intent than a mere statement of "conditions."
103
To argue that Congress could not have intended to obligate the States under § 6010 because those obligations would be large and for the most part unknown is also unpersuasive. Section 6010 calls for appropriate treatment, services, and habilitation; and, as already detailed, the remaining sections spell out, some in more detail than others, the scope of that requirement. Beyond this, however, the content and reach of the federal requirements will, as a practical matter, emerge from the process of preparing a state plan and securing its approval by the Secretary. The state plan must undertake to provide services and facilities pursuant to "standards" prescribed by the Secretary; and, as will become evident, the State's option to terminate its statutory duties must be respected by the courts. In any event, there is no indication in the record before us that the cost of compliance with § 6010 would be "massive." The District Court found that noninstitutional facilities located in the communities would be significantly less expensive to operate than facilities like Pennhurst. 446 F.Supp., at 1312. At best, the cost of compliance with § 6010 is indeterminate.
104
It is apparently suggested that § 6010 is reduced to a mere statement of hope by the absence of an express provision requiring the Secretary to cut off funds in the event he determines that a State is not observing the rights set out in § 6010. But it is clear that the Secretary may not approve a plan in the first place without being assured that those rights will be protected, and it is difficult to believe that the Secretary must continue to fund a program that is failing to live up to the assurances that the State has given the Secretary.
105
It is also a matter of substantial moment that § 6012 (1976 ed., Supp. III) expressly conditions the approval of a plan on the State's providing "a system to protect and advocate the rights of persons with developmental disabilities," and that the system must "have the authority to pursue legal, administrative, and other appropriate remedies to insure the protection of rights of such persons." § 6012(a)(2)(A). Section 6012 goes on to provide federal aid in establishing such systems and it seems rather plain that the Act contemplates not only ongoing oversight by the Secretary but also enforcement of the rights of persons receiving treatment through judicial action or otherwise.
106
It is thus not of determinative significance that the Secretary was once of the view that noncompliance with § 6010 did not provide sufficient reason to cut off funds under the Act. As the Court recognizes, the 1978 amendments have convinced him that § 6010 rights must be respected;15 but if the Secretary's original view was correct, and I do not think it was, this would not foreclose judicial remedies sought by or on behalf of developmentally disabled persons injured by the State's failure to observe § 6010 rights. Moreover, the Solicitor General, who is the legal representative of the United States, is of the view that the Act does create enforceable rights. In any event, this Court, as it is permitted to do, has disagreed on occasion with the administrative determination of the Secretary. See, e. g., Philbrook v. Glodgett, 421 U.S. 707, 715, and n.11, 95 S.Ct. 1893, 1899, and n.11, 44 L.Ed.2d 525 (1975); Carleson v. Remillard, 406 U.S. 598, 602, 92 S.Ct. 1932, 1935, 32 L.Ed.2d 352 (1972); Townsend v. Swank, 404 U.S. 282, 286, and n.3, 92 S.Ct. 502, 505, and n.3, 30 L.Ed.2d 448 (1971). See also General Electric Co. v. Gilbert, 429 U.S. 125, 140-146, 97 S.Ct. 401, 410-413, 50 L.Ed.2d 343 (1976).
V
107
Given my view that Congress intended § 6010 to do more than suggest that the States act in a particular manner, I find it necessary to reach the question whether these rights can be enforced in federal courts in a suit brought by the developmentally disabled. This action was brought under 42 U.S.C. § 1983, and directly under the Developmentally Disabled Act. The Court of Appeals determined that under the factors enunciated in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), an implied private cause of action existed under the Act. Subsequently, however, we held that "the § 1983 remedy broadly encompasses violations of federal statutory as well as constitutional law." Maine v. Thiboutot, 448 U.S. 1, 4, 100 S.Ct. 2502, 2504, 65 L.Ed.2d 555 (1980). It is acknowledged by all parties that it is appropriate to consider the cause-of-action question in light of the intervening decision in Thiboutot.
108
We have often found federal-court jurisdiction to enforce statutory safeguards in grant programs in suits brought by injured recipients. See, e. g., Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970); Shea v. Vialpando, 416 U.S. 251, 94 S.Ct. 1746, 40 L.Ed.2d 120 (1974); Carleson v. Remillard, supra. In essence, Thiboutot creates a presumption that a federal statute creating federal rights may be enforced in a § 1983 action. To be sure, Congress may explicitly direct otherwise, such as if the "governing statute provides an exclusive remedy for violations of its terms." Thiboutot, supra, at 22, n. 11, 100 S.Ct., at 2513, n. 11 (POWELL, J., dissenting). See generally Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 672, 99 S.Ct. 1905, 1944, 60 L.Ed.2d 508 (1979) (§ 1983 protections apply to all rights secured by federal statutes "unless there is clear indication in a particular statute that its remedial provisions are exclusive or that for various other reasons a § 1983 action is inconsistent with congressional intention") (WHITE, J., concurring in judgment). Thus, in Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), we held that § 1983 did not provide a basis for relief since federal habeas corpus proceedings constituted the sole remedy for challenging the fact or duration of confinement. See Adickes v. S. H. Kress & Co., 398 U.S. 144, 150, n. 5, 90 S.Ct. 1598, 1604, n. 5, 26 L.Ed.2d 142 (1970). Attempting to fit within the exception, the Pennhurst petitioners suggest that Congress intended the sole remedy for violations of the terms of the Act to be the power of the Secretary to disapprove a State's plan. See 42 U.S.C. § 6063(c). According to these petitioners, imposition of a private remedy would be incompatible with the overall scheme of the Act, especially given the amorphous quality of the asserted rights.
109
As a general matter, it is clear that the fact that a federal administrative agency has the power to oversee a cooperative state-federal venture does not mean that Congress intended such oversight to be the exclusive remedy for enforcing statutory rights. This Court is "most reluctant to assume Congress has closed the avenue of effective judicial review to those individuals most directly affected by the administration of its program[s]" even if the agency has the statutory power to cut off federal funds for noncompliance. Rosado v. Wyman, supra,, at 420, 90 S.Ct., at 1222. In part, this reluctance is founded on the perception that a funds cutoff is a drastic remedy with injurious consequences to the supposed beneficiaries of the Act. Cf. Cannon v. University of Chicago, 441 U.S. 677, 708, n. 42, 99 S.Ct. 1946, 1963, n. 42, 60 L.Ed.2d 560 (1979). In this litigation, there is no indication that Congress intended the funds cutoff, which, as the Court notes, the Secretary believed was not within the power of the agency, to be the sole remedy for correcting violations of § 6010. Indeed, § 6012 and the legislative history of the Act reveal that Congress intended judicial enforcement of § 6010. See supra, at p. 46; H.R.Conf.Rep.No.94-473, p. 42 (1975) (the statutory rights established by § 6010 "should be protected and assured by the Congress and the courts"). Ac- cordingly , I would hold that jurisdiction under § 1983 was properly invoked in these cases under Thiboutot.
VI
110
I would vacate the judgment of the Court of Appeals and remand the cases for further proceedings. This litigation does not involve the exercise of congressional power to enforce the Fourteenth Amendment as the Court of Appeals held, but is an exercise of the spending power. What an appropriate remedy might be where state officials fail to observe the limits of their power under the United States Constitution or fail to perform an ongoing statutory duty imposed by a federal statute enacted under the commerce power or the Fourteenth Amendment is not necessarily the measure of a federal court's authority where it is found that a State has failed to perform its obligations undertaken pursuant to a statute enacted under the spending power. The State's duties in the latter situation do not arise until and unless the State chooses to receive federal funds. Furthermore, the State may terminate such statutory obligations, except those already accrued, by withdrawing from the program and terminating its receipt of federal funds. It is settled that administrative oversight and termination of federal funding in the event of a State's failure to perform its statutory duties is not the sole remedy in Spending Clause cases. "It is . . . peculiarly part of the duty of this tribunal, no less in the welfare field that in other areas of the law, to resolve disputes as to whether federal funds allocated to the States are being expended in consonance with the conditions that Congress has attached to their use." Rosado v. Wyman, supra, 422-423, 90 S.Ct., at 1222-1223. It is equally clear, however, that the courts in such cases must take account of the State's privilege to withdraw and terminate its duties under the federal law. Although the court may enjoin the enforcement of a discrete state statutory provision or regulation or may order state officials prospectively to perform their duties incident to the receipt of federal funds, the prospective force of such injunctions cannot survive the State's decision to terminate its participation in the program. Furthermore, there are cases in which there is no identifiable statutory provision whose enforcement can be prohibited. Rosado v. Wyman, was such a case, and there, after finding that the State was not complying with the provisions of the Social Security Act, we remanded the case to the District Court to "afford [the State] an opportunity to revise its program in accordance with [federal requirements]" as we had construed them to be, but to retain jurisdiction "to review . . . any revised program adopted by the State, or, should [the State] choose not to submit a revamped program by the determined date, issue its order restraining the further use of federal monies . . . ." 397 U.S., at 421-422, 90 S.Ct., at 1222-1223; See Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974).
111
It is my view that the Court of Appeals should have adopted the Rosado approach in these cases. It found the State to be in noncompliance with the federal statute in major respects and proceeded to impose a far-reaching remedy, approving the appointment of a Special Master to decide which of the Pennhurst inmates should remain and which should be moved to community-based facilities. More properly, the court should have announced what it thought was necessary to comply with the Act and then permitted an appropriate period for the State to decide whether it preferred to give up federal funds and go its own route. If it did not, it should propose a plan for achieving compliance, in which event, if it satisfied the court, a decree incorporating the plan could be entered and if the plan was unsatisfactory, the further use of federal funds could be enjoined. In any event, however, the court should not have assumed the task of managing Pennhurst or deciding in the first instance which patients should remain and which should be removed. As we recently recognized in Parham v. J. R., 442 U.S. 584, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979): "The mode and procedure of medical diagnostic procedures is not the business of judges. What is best for a child is an individual medical decision that must be left to the judgment of physicians in each case. We do no more than emphasize that the decision should represent an independent judgment of what the child requires and that all sources of information that are traditionally relied on by physicians and behavorial specialists should be consulted." Id., at 607-608, 99 S.Ct., at 2506. Cf. Addington v. Texas, 441 U.S. 418, 429, 99 S.Ct. 1804, 1811, 60 L.Ed.2d 323 (1979) (commitment depends "on the meaning of the facts which must be interpreted by expert psychiatrists and psychologists"). In enacting § 6010, Congress eschewed creating any specific guidelines on the proper level of institutionalization, leaving the question to the States to determine in the first instance. A court-appointed Special Master is inconsistent with this approach.
112
Accordingly, I would vacate the judgment of the Court of Appeals and remand the cases for further proceedings.
1
"Community living arrangements" are smaller, less isolated residences where retarded persons are treated as much as possible like nonretarded persons.
2
There is a technical difference between "treatment," which applies to curable mental illness, and "habilitation," which consists of education and training for those, such as the mentally retarded, who are not ill. This opinion, like the opinions of the courts below, will use the terms interchangeably.
3
As originally enacted in 1975, the definition of "developmentally disabled" included mental retardation. § 6001(7)(A)(i). As amended in 1978, however, a mentally retarded individual is considered developmentally disabled only if he satisfies various criteria set forth in the Act.
It is perhaps suggestive of the novelty of the Court of Appeals' decision that none of the respondents briefed the Act before the District Court, nor raised it in the Court of Appeals. Rather, the court itself suggested the applicability of the Act and requested supplemental briefs on the issue for the purpose of rehearing en banc. Even then the United States, which raised only constitutional claims before the District Court, contended merely that the "most significant implication of the Developmentally Disabled Act is the important light which it sheds upon congressional intent about the nature of the rights of institutionalized mentally retarded persons, and the guidance which it may give in discerning a violation of Section 504 [of the Rehabilitation Act]." Supplemental Brief for United States in No. 78-1490 (CA3), p. 2.
4
Section 5 of the Fourteenth Amendment provides that "[t]he Congress shall have power to enforce, by appropriate legislation, the provisions of this article."
5
The spending power is encompassed in Art. I, § 8, cl. 1, of the Constitution, which states that "Congress shall have the Power To . . . provide for the . . . general Welfare of the United States."
6
The decisions below are somewhat unclear concerning to whom petitioners owe this right of treatment. The District Court certified a class of all persons who may become residents of Pennhurst, and the Court of Appeals directed relief for all plaintiffs in the case, including those on Pennhurst's waiting list. Thus, the decisions arguably entitle even those mentally retarded citizens who are not institutionalized or currently receiving services to a "right to treatment."
7
The dissent went on to conclude that neither the Federal Constitution, § 504 of the Rehabilitation Act of 1973, nor state law required a State to provide treatment in the "least restrictive setting." The dissent would have thus reversed those portions of the District Court's order that contemplated a court order closing Pennhurst and the creation of new less restrictive facilities. It would also have remanded the case to the District Court for it to decide "how best to bring Pennhurst in compliance with statutory and constitutional requirements" and left open "the possibility that certain individuals in the future may be able to show that their particular mode of treatment is not rationally related to the State's purpose in confining them." 612 F.2d, at 131.
8
Section 6000(b)(2) provides:
"The specific purposes of this chapter are—
"(A) to assist in the provision of comprehensive services to persons with developmental disabilities, with priority to those persons whose needs cannot be covered or otherwise met under the Education for All Handicapped Children Act, the Rehabilitation Act of 1973 . . ., or other health, education, or welfare programs;
"(B) to assist States in appropriate planning activities;
"(C) to make grants to States and public and private, nonprofit agencies to establish model programs, to demonstrate innovative habilitation techniques, and to train professional and paraprofessional personnel with respect to providing services to persons with developmental disabilities;
"(D) to make grants to university affiliated facilities to assist them in administering and operating demonstration facilities for the provision of services to persons with developmental disabilities, and interdisciplinary training programs for personnel needed to provide specialized services for these persons; and
"(E) to make grants to support a system in each State to protect the legal and human rights of all persons with developmental disabilities."
9
Sections 6031-6043 authorize separate funding to university-affiliated facilities for the operation of demonstration and training programs and are not pertinent here.
10
The provisions of § 6063 were reworded and recodified in 1978. Section 6063(b)(5)(C) (1976 ed., Supp.III) replaced § 133(b)(24) of the Act, as added and renumbered, 89 Stat. 491, 506, 42 U.S.C. § 6063(b)(24), which required a somewhat similar "assurance." The only significant difference between the two provisions is that § 6063(b)(5)(C) contains a specific reference to § 6010.
11
The PARC respondents take a somewhat different view. Although they argue that Congress enacted § 6010 under both § 5 and the spending power, they suggest that § 6010 applies only to programs which receive federal money. The PARC respondents are also cross-petitioners in this litigation, arguing that the Act requires Pennhurst to be closed. In their view, the individual placement decisions required by the court below are not authorized by the Act and, in any event, are an improper exercise of judicial authority.
12
There is of course a question whether Congress would have the power to create the rights and obligations found by the court below. Although the court below held that "section 6010 does not go beyond what has been judicially declared to be the limits of the [F]ourteenth [A]mendment," 612 F.2d, at 98, this Court has never found that the involuntarily committed have a constitutional "right to treatment," much less the voluntarily committed. See Sanchez v. New Mexico, 396 U.S. 276, 90 S.Ct. 588, 24 L.Ed.2d 469 (1970), dismissing for want of substantial federal question, 80 N.M. 438, 457 P.2d 370 (1968); O'Connor v. Donaldson, 422 U.S. 563, 587-589, 95 S.Ct. 2486, 2499-2500, 45 L.Ed.2d 396 (1975) (BURGER, C. J., concurring). Thus, the Pennhurst petitioners and several amici argue that legislation which purports to create against the States not only a right to treatment, but one in the least restrictive setting, is not "appropriate" legislation within the meaning of § 5. Because we conclude that § 6010 creates no rights whatsoever, we find it unnecessary to consider that question.
13
There are limits on the power of Congress to impose conditions on the States pursuant to its spending power, Steward Machine Co. v. Davis, 301 U.S., at 585, 57 S.Ct., at 890; Lau v. Nichols, 414 U.S. 563, 569, 94 S.Ct. 786, 789, 39 L.Ed.2d 1 (1974); Fullilove v. Klutznick, 448 U.S. 448, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980) (BURGER, C. J.); see National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976). Even the Halderman respondents, like the court below, recognize the "constitutional difficulties" with imposing affirmative obligations on the States pursuant to the spending power, Tr. of Oral Arg. 45. That issue, however, is not now before us.
14
Respondents also contend that the title of the Act as passed, rather than as codified, reveals an intent to create rights in favor of the disabled. Pub.L. 94-103, 89 Stat. 486. As passed, the Act contained three Titles. Title I provided for services and facilities to the developmentally disabled and Title II, entitled "The Establishment and Protection of the Rights of Persons with Developmental Disabilities," contained § 6010. Respondents' reliance on this title is misplaced. It has long been established that the title of an Act "cannot enlarge or confer powers." United States v. Oregon & California R. Co., 164 U.S. 526, 541, 17 S.Ct. 165, 170, 41 L.Ed. 541 (1896); Cornell v. Coyne, 192 U.S. 418, 430, 24 S.Ct. 383, 385-386, 48 L.Ed. 504 (1904). See United States v. Fisher, 2 Cranch 358, 386, 2 L.Ed. 304 (1805); Yazoo & Mississippi Valley R. Co. v. Thomas, 132 U.S. 174, 188, 10 S.Ct. 68, 73, 33 L.Ed. 302 (1889). In addition, the location of § 6010 in the Act as passed confirms § 6010's limited meaning. Section 6010 was the preamble of Title II followed by provisions later codified as §§ 6009, 6011, 6012. The congressional findings in § 6010 thus seem to have been designed simply to serve as the rationale for the conditions imposed in the remaining sections of Title II.
15
As originally passed by the Senate, for example, the bill provided that a State which failed to comply with the detailed standards of care enumerated in Title II would lose all federal funding, including that provided under such programs as Medicaid. S. 462, Tit. II, § 206. See S.Rep.No.94-160, p. 35 (1975). The fact that the Senate would include a funding sanction is, of course, wholly inconsistent with respondents' argument that Congress was acting pursuant to § 5 of the Fourteenth Amendment.
16
Nor is the contrary proved by a 1978 amendment to § 6010 which provides:
"The rights of persons with developmental disabilities described in findings made in this section are in addition to any constitutional or other rights otherwise afforded to all persons." 92 Stat. 3007.
This provision, adopted in Conference Committee without any legislative history, merely expresses Congress' view that persons with developmental disabilities have rights in addition to those generally available to "all persons." The section recognizes that Congress only "described" rights, not created them. Nothing in the language supports an inference of substantive duties from a statement of congressional policy.
17
To be sure, the Secretary has read the 1978 recodification of § 6063(b)(5)(C) (1976 ed., Supp.III) to require a participating State to assure the Secretary that services in funded programs are being provided consistent with § 6010. 45 Fed.Reg. 31006 (1980). But, as will be discussed infra, even if the Secretary's interpretation of the 1978 recodification is correct, a participating State's obligations under § 6063(b)(5)(C) are far more modest than the obligations read into § 6010 by the court below and urged by the Solicitor General here. It is also important to note that the Secretary, despite his apparent authority to do so, has not terminated funds to Pennsylvania for noncompliance with § 6063(b)(5)(C).
18
The Solicitor General also relies heavily on § 6010(3), quoted supra, at 13. He apparently contends that Congress in § 6010(3) conditioned the grant of all federal funds, including Medicaid, on the participating State's agreement to provide adequate treatment to individuals. Although § 6010(3), unlike §§ 6010(1) and (2), at least speaks in terms of "obligations," we find the Solicitor General's argument ultimately without merit. First, like the other "findings" in § 6010, § 6010(3) is merely an expression of federal policy. As even the Secretary concedes, Congress did not give the Secretary authority to withdraw federal funds on the basis of a State's failure to comply with § 6010(3). Second, by its terms, § 6010(3) states that both the Federal Government and the States should not spend public money for substandard institutions. Nothing reveals an intent to condition the grant of federal funds under the Act on the State's promise to provide appropriate habilitation to individuals.
19
The House Report, for example, explained that States were required only to plan "for as much deinstitutionalization as is feasible," recognizing that this requirement would "prompt some movement of patients from State institutions back into their communities." H.R.Rep.No. 94-58, p. 10 (1975), U.S.Code Cong. & Admin.News 1975, p. 928.
20
The Court of Appeals was apparently aware of these conditions since it referred expressly to § 6063(b)(5)(C) in concluding that § 6010 creates a right to treatment. Its error was in bypassing these specific conditions and resting its decision on the more general language of § 6010.
21
Because we conclude that § 6010 confers no substantive rights, we need not reach the question whether there is a private cause of action under that section or under 42 U.S.C. § 1983 to enforce those rights. See Southeastern Community College v. Davis, 442 U.S. 397, 404, n. 5, 99 S.Ct. 2361, 2366, n. 5, 60 L.Ed.2d 980 (1979).
22
Justice WHITE concedes that Pennsylvania may not have violated § 6011, since Pennhurst may not be a "program assisted" under the Act. Post, at 41-42, n. 7. Curiously, however, he simultaneously assumes that § 6063(b)(5)(C) applies to Pennhurst. Post, at 41. Because both § 6011 and § 6063(b)(5)(C) apply only to "programs assisted," I do not understand why § 6063(b)(5)(C), but not § 6011, is applicable.
23
We do not significantly differ with our Brother WHITE on the remedy for failure to comply with federally imposed conditions. Relying on Rosado v. Wyman, he argues that Pennsylvania should be given the option of rejecting federal funds under the Act or complying with § 6010. If we agreed that § 6010 was a condition on the grant of federal funds, we would have little difficulty subscribing to that view. We differ only in that he believes that § 6010 imposes conditions on participating States while we believe that the relevant conditions to these cases are §§ 6011 and 6063(b)(5)(C). If the court on remand determines that there has been a violation of those conditions, it may well be appropriate to apply the principles announced in Rosado, as Justice WHITE suggests.
24
Respondents have submitted to the Court 10 photocopies of a recent decision of the Pennsylvania Supreme Court which they characterize as holding that Pennsylvania state law provides a right to "state-funded individualized habilitation services." In re Schmidt, 494 Pa. 86, 429 A.2d 631 (1981). The late submission not only fails to comply with Supreme Court Rule 35.5, it does not affect our decision here. On remand following our reversal, the Court of Appeals will be in a position to consider the state-law issues in light of the Pennsylvania's Supreme Court's recent decision.
25
E. g., The Rehabilitation Act of 1973, as amended in 1974 and 1978, 29 U.S.C. § 701 et seq. (1976 ed. and Supp.III); The Education for All Handicapped Children Act of 1975, 20 U.S.C. §§ 1401-1420; Social Security Amendments of 1974, 42 U.S.C. §§ 1396d(d) and 1397; Community Mental Health Centers Act, 42 U.S.C. § 2689 et seq.
1
See Pa.Stat.Ann., Tit. 50, § 4201 et seq. (Purdon 1969).
2
The Court of Appeals also overturned the District Court's decision to require the State to find suitable alternative employment for those Pennhurst employees displaced by the order. This order is not an issue before this Court.
3
Respondents Halderman and PARC suggest a number of other Fourteenth Amendment "interests" allegedly served by § 6010. See, e. g., San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973) (right to receive something more than no education); Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972) (right to be institutionalized only when the nature and duration of such treatment bears a reasonable relation to its purpose); O'Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975) (right of nondangerous persons capable of living without institutionalization to be free).
4
The Act as passed in 1975 required that the state plan "contain or be supported by assurances satisfactory to the Secretary that the human rights of all persons with developmental disabilities . . . be protected." § 6063(b)(24). This measure was amended in 1978 to make it explicit that a State's plan must provide assurances of its compliance with § 6010. See text, infra.
5
An amendment was passed in 1967 which added a program to train professionals in community programs, as well as providing funds to support institutions, Pub.L. 90-170, 81 Stat. 527. In 1970, Congress passed a second amendment adopting a formula grant system essentially similar to the present system. The 1970 amendment also broadened the number of potential beneficiaries to include persons afflicted with various disabilities not previously covered. Pub.L. 91-517, 84 Stat. 1316.
6
The pertinent text of § 6010 provides:
"Congress makes the following findings respecting the rights of persons with developmental disabilities:
"(1) Persons with developmental disabilities have a right to appropriate treatment, services, and habilitation for such disabilities.
"(2) The treatment, services, and habilitation for a person with developmental disabilities should be designed to maximize the developmental potential of the person and should be provided in the setting that is least restrictive of the person's personal liberty.
"(3) The Federal Government and the States both have an obligation to assure that public funds are not provided to any institutional or other residential program for persons with developmental disabilities that—
"(A) does not provide treatment, services, and habilitation which is appropriate to the needs of such persons; or
"(B) does not meet the following minimum standards:
"(i) Provision of a nourishing, well-balanced daily diet to the persons with developmental disabilities being served by the program.
"(ii) Provision to such persons of appropriate and sufficient medical and dental services.
"(iii) Prohibition of the use of physical restraint on such persons unless absolutely necessary and prohibition of the use of such restraint as a punishment or as a substitute for a habilitation program.
"(iv) Prohibition on the excessive use of chemical restraints on such persons and the use of such restraints as punishment or as a substitute for a habilitation program or in quantities that interfere with services, treatment, or habilitation for such persons.
"(v) Permission for close relatives of such persons to visit them at reasonable hours without prior notice.
"(vi) Compliance with adequate fire and safety standards as may be promulgated by the Secretary.
"(4) All programs for persons with developmental disabilities should
meet standards which are designed to assure the most favorable possible outcome for those served, and—
"(A) in the case of residential programs serving persons in need of comprehensive health-related, habilitative, or rehabilitative services, which are at least equivalent to those standards applicable to intermediate care facilities for the mentally retarded promulgated in regulations of the Secretary . . . as appropriate when taking into account the size of the institutions and the service delivery arrangements of the facilities of the programs;
"(B) in the case of other residential programs for persons with developmental disabilities, which assure that care is appropriate to the needs of the persons being served by such programs, assure that the persons admitted to facilities of such programs are persons whose needs can be met through services provided by such facilities, and assure that the facilities under such programs provide for the humane care of the residents of the facilities, are sanitary, and protect their rights; and
"(C) in the case of nonresidential programs, which assure the care provided by such programs is appropriate to the persons served by the programs."
Section 6010 was amended in 1978 to add the following concluding paragraph:
"The rights of persons with developmental disabilities described in findings made in this section are in addition to any constitutional or other rights otherwise afforded to all persons." Pub.L. 95-602, § 507, 92 Stat. 3007.
7
There is nothing "curious" as the Court suggests about coming to a different conclusion about the applicability of § 6011 to Pennhurst. Section 6063(b)(5)(B) requires that the plan must provide that services are provided in an individualized manner consistent with the requirements of § 6011 relating to habilitation plans. Section 6011 requires that when any specific program in a State, including any program of an agency, facility or project, receives funds from the State's allotment, it will have in effect individualized plans for habilitation for each individual receiving services under that program. The section goes on to specify in detail how such individualized plans shall be formulated and how they are to be carried out and monitored. The Court asserts that Pennhurst has not been receiving federal funds under the Act, which means, I take it, that Pennhurst has not received funds from the State's allocation under the Act. In that event, I would not think that § 6011 would apply to Pennhurst residents. But Pennhurst is part of the State's overall program, and the State has presented a plan and received federal funds to support its developmentally disabled program throughout the State. It must, therefore, observe the § 6010 rights of the developmentally disabled in state institutions, including Pennhurst.
8
See, e. g., 121 Cong.Rec. 9976 (1975) (remarks of Cong. Rogers) (percentage requirement would assist in overcoming misuse of facilities caused by tendency of States to resort to institutionalization); ibid. (remarks of Cong. Carter) (treatment "should be conducted in that person's community without unnecessarily institutionalizing him").
It is clear that the House was concerned with many of the same factors which informed the Senate's detailed provision which ultimately lead to the genesis of § 6010. The Court's narrow reading of the House bill is not convincing. To the extent that the House bill did not have an analogue to § 6010, comments on the bill are necessarily irrelevant to the question of the intended effect of § 6010.
9
See, e. g., 121 Cong.Rec. 16518 (1975) (remarks of Sen. Javits) ("The shocking conditions at Willowbrook in New York, and many other institutions for the mentally retarded throughout the Nation which inspired the bill of rights have not ended"); id., at 16521 (remarks of Sen. Schweiker) ("The last 5 years have seen a dramatic increase in public awareness of the needs of institutionalized mentally retarded and developmentally disabled persons. This has been highlighted by scandals in many institutions, by court cases, and by the efforts of the communications media"); id., at 16516 (remarks of Sen. Williams) ("Over the past few years, the horrifying conditions which exist in most of the public residential institutions for the mentally retarded . . . have provided shocking testimony to the inhuman way we care for such persons. The conditions at . . . [the] institutions have shown beyond a shadow of a doubt that the treatment of these individuals is worse then (sic ) all of us would like to admit").
10
For example, Senator Javits stated that the Bill of Rights section, an integral part of the legislation, would "establish minimum standards for residential and community facilities and agencies for the protection of the rights of those individuals needing services, while at the same time, encouraging deinstitutionalization and normalization." Id., at 16518. In conclusion, Senator Javits identified a number of concerns shared by many of the legislators speaking on the Senate bill:
"Progress toward recognition of the basic human and civil rights of the mentally retarded and other developmentally disabled persons has been slow. The Federal Government has largely abrogated its responsibility in this regard and recently the greatest initiatives have come from our courts. . . .
"Congress should reaffirm its belief in equal rights for all citizens—including the developmentally disabled. Congress should provide the leadership to change the tragic warehousing of human beings that has been the product of insensitive Federal support of facilities providing inhumane care and treatment of the mentally retarded. The bill of rights of S. 462 represents this new direction, and begins this reaffirmation." Id., at 16519.
See id., at 16520 (remarks of Sen. Cranston) (Senate bill enunciated basic goal of moving away from "long-term institutionalization of individuals with developmental disabilities to the development of community-based programs utilizing all community resources related to treatment or habilitation of such individuals to provide comprehensive services in the home community").
11
See, e. g., id., at 16522 (remarks of Sen. Schweiker) ("It is now time to provide alternatives to locking persons up in institutions"); id., at 16520 (remarks of Sen. Cranston) ("[I]n encouraging the movement to community-based programs, I recognize that the need for some long-term residential programs will remain. The bill specifically provides that where institutional programs are appropriate, adequate support should be planned for them so that necessary treatment and habilitation programs can be given residential patients to develop their full potential"); id., at 16516 (remarks of Sen. Stafford) (the Bill of Rights will "assist in the protection of the rights guaranteed under our Constitution for those individuals that will require institutionalization . . .").
12
Prior to final passage, Congressman Rogers stated that the revised Title II included a "brief statement of the rights of the developmentally disabled to appropriate treatment and care," which constituted "modest requirements." Id., at 29309 (emphasis added). Senator Javits was more dramatic in announcing the purpose of Title II as creating a clear federal policy in favor of a right to treatment. "This 'Bill of Rights' explicitly recognizes that the Federal Government and the States have an obligation to assure that public funds are not provided to institutions or other residential programs" that do not provide adequate treatment. Id., at 29820. See also id., at 29818 (remarks of Sen. Randolph) (compromise reorganized title II of the Senate bill "in order to reflect the essential elements which are necessary for continued improvement in the quality of care and habilitation of developmentally disabled persons in residential and community facilities"); id., at 29821 (remarks of Sen. Williams) (the compromise establishes for the first time in federal law a "basic statement" of the rights of the developmentally disabled and the Act "will assure that funds under the act will be used by the States to assist them in the deinstitutionalization process").
13
The Act also required the Secretary to review and evaluate the quality standards under various statutes and to report to the Congress on any proposed changes. See Pub.L. 94-103, § 204, 89 Stat. 504. When the Secretary's recommendations were presented, the House took no steps to enact them into law, again demonstrating legislative unwillingness to adopt detailed uniform standards. See Developmental Disabilities Act Amendments of 1978: Hearings on H.R. 11764 before the House Committee on Interstate and Foreign Commerce, 95th Cong., 2d Sess., 471-475 (1978). Congress did determine, however, to amend § 6063 to expressly require a State to provide assurance to the Secretary of its plan to comply with § 6010. See 42 U.S.C. § 6063(b)(5)(C) (1976 ed., Supp. III).
14
None of the cases cited by the Court suggest, much less hold, that Congress is required to condition its grant of funds with contract-like exactitude. In Harris v. McRae, 448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980), the Court held that there was no evidence in the statute or in the legislative history, that Congress intended the States to assume the full costs of funding abortions once the federal funds were withheld under the Hyde Amendment. Here, there is explicit recognition in the statute and in the legislative history that Congress intended the States to provide the developmentally disabled with adequate treatment in the least restrictive environment consistent with their medical needs. The other cases cited by the Court involved situations where the Court held that Congress must indicate that it intended the States to have waived fundamental constitutional rights merely by participating in a federal program. See Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) (Eleventh Amendment sovereign immunity); Employees v. Department of Public Health, 411 U.S. 279, 285, 93 S.Ct. 1614, 1618, 36 L.Ed.2d 251 (1973) (same). The Eleventh Amendment concerns are not implicated in these cases, and the citation of Edelman and Employees is thus unpersuasive.
15
The Secretary has recently announced the Department's view that the rights enunciated by § 6010 must now be addressed by participating state plans as a result of the 1978 amendments. The explanation of the proposed rulemaking provided as follows:
"No authority was included in that Act to allow the Department to withhold funds from States on the basis of failure to meet the findings.
"The 1978 amendments, however, added a requirement to the basic State grant program that the State assure the Secretary that the rights of developmentally disabled people are to be protected consistent with [§ 6010]. The Department has decided to require that all programs authorized under the Act, except for the protection and advocacy systems, comply with [§ 6010] of the Act. The protection and advocacy systems are exempted because they are an extension of the 'Rights' provisions and the systems do not provide services, treatment or habilitation. The Department believes that applying this policy to the other programs is within the intent of Congress. Recipients of funds under the Act are to assure the State and the Commissioner that they will provide services which comply with the requirements of [§ 6010]. Failure to comply with the assurance may result in the loss of Federal funds." 45 Fed.Reg. 31006 (1980).
| 12
|
451 U.S. 259
101 S.Ct. 1673
68 L.Ed.2d 80
James G. WATT, Secretary of Interior et al., Petitioners,v.State of ALASKA et al. KENAI PENINSULA BOROUGH, Petitioner, v. State of ALASKA et al.
Nos. 79-1890, 79-1904.
Argued Jan. 13, 1981.
Decided April 21, 1981.
Syllabus
The Kenai National Moose Range was created in 1941 as a national wildlife refuge by withdrawing acreage from public lands in Alaska. Commercially significant quantities of oil underlie the Range, and the Secretary of the Interior issued oil and gas leases for the Range, beginning in the 1950's. The Secretary has distributed revenues from these leases according to the formula provided in § 35 of the Mineral Leasing Act of 1920, whereby 90% of the revenues are paid to Alaska and 10% to the United States Treasury. In 1964, § 401(a) of the Wildlife Refuge Revenue Sharing Act was amended so as to add the word "minerals" to the list of refuge resources, the revenues from which were to be distributed according to the formula provided in § 401(c) of that Act, whereby 25% of the revenues are paid to counties in which the wildlife refuge lies, and the remaining funds are used by the Department of the Interior for public purposes. The Department's Solicitor then made a determination, in which the Comptroller General concurred, that the amended § 401(a) superseded § 35 of the Mineral Leasing Act of 1920, with the result that the formula under § 401(c) was to be applied to oil and gas lease revenues from wildlife refuges. Petitioner Kenai Peninsula Borough, the "county" within which Moose Range lies, thereafter brought suit in Federal District Court, seeking a declaration that the amended § 401(a) governed the distribution of oil and gas revenues from the Range. Alaska also filed suit in the same court, seeking a declaration that § 35 still governed such distribution, and the suits were consolidated. The District Court granted summary judgment for Alaska, and the Court of Appeals affirmed.
Held: Revenues generated by oil and gas leases on federal wildlife refuges consisting of reserved public lands, as here, must be distributed according to the formula provided in § 35 of the Mineral Leasing Act of 1920. Absent any expression of congressional intention to repeal § 35 by implication, the term "minerals" in § 401(a) of the Wildlife Refuge Revenue Sharing Act applies only to minerals on land acquired for wildlife refuges. Pp. 265-273.
612 F.2d 1210 (9th Cir.), affirmed.
Louis F. Claiborne, Washington, D.C., for petitioner Andrus.
Charles K. Cranston, Anchorage, Alaska, for petitioner Kenai Peninsula Borough.
G. Thomas Koester, Juneau, Alaska, for respondents.
Justice POWELL delivered the opinion of the Court.
1
The narrow issue presented by these cases is which of two federal statutes provides the formula for distribution of revenues received from oil and gas leases on national wildlife refuges reserved from public lands.
2
* The Kenai National Moose Range was created in 1941 by the withdrawal of nearly two million acres from public lands on the Kenai Peninsula in Alaska. See Exec. Order No. 8979, 3 CFR 1043 (1938-1943 Comp.). See also Public Land Order No. 3400, 29 Fed.Reg. 7094-7095 (1964) (adjusting the boundaries). The Kenai Moose Range, as its name suggests, provides a refuge and breeding ground for moose. The Fish and Wildlife Service in the Department of the Interior administers it as part of the national wildlife refuge system.
3
Commercially significant quantities of oil underlie the Kenai Moose Range.1 Pursuant to authority under the Mineral Leasing Act of 1920, 30 U.S.C. § 181 et seq., the Secretary of the Interior issued oil and gas leases for the Kenai Moose Range, beginning in the mid-1950's. See Udall v. Tallman, 380 U.S. 1, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965). The United States has received substantial revenues from these leases.2 From first receipt in 1954, the Secretary has distributed these revenues according to the formula provided in § 35 of the Mineral Leasing Act of 1920, 14 Stat. 450, as amended, 30 U.S.C. § 191. This formula prescribes that 90% of the revenues be paid to the State of Alaska and 10% to the United States Treasury.3
4
In 1975, the Director of the Fish and Wildlife Service inquired of the Solicitor of the Department of the Interior whether revenues from oil and gas leases in wildlife refuges created by withdrawal of public lands should be distributed according to § 401(c) of the Wildlife Refuge Revenue Sharing Act, 49 Stat. 383, as amended, 16 U.S.C. § 715s(c), rather than under the Mineral Leasing Act of 1920. The Director's inquiry was prompted by the 1964 amendments to § 401(a), which added the word "minerals" to a list of refuge resources, the revenues from which were to be distributed according to the statutory formula.4 Pub.L. 88-523, 78 Stat. 701. According to this formula, 25% of the revenues are paid to counties wherein the refuge lies, and remaining funds are used by the Department of the Interior for public purposes.5 The Solicitor ruled that the 1964 amendment governed, superseding § 35 of the Mineral Leasing Act of 1920. App. to Pet. for Cert. in No. 79-1890, p. 26a. The Comptroller General concurred in the view of the Solicitor. 55 Comp.Gen. 117 (1975). Upon request for reconsideration by the State of Alaska in 1976, the Comptroller General affirmed his initial decision. See Op.Comp.Gen. in File: B-118678, June 11, 1976, reprinted in App. to Pet. for Cert. in No. 79-1890, p. 42a.
5
The Kenai Peninsula Borough then brought suit against the Secretary of the Interior in the United States District Court for the District of Alaska, seeking a declaration that the amended § 401(a) of the Wildlife Refuge Revenue Sharing Act governed the distribution of oil and gas revenues from the Kenai Moose Range. Kenai Borough is the "county" within which the Moose Range lies. If § 401(a) governs, it will receive 25% of the revenues and the State none. The State of Alaska then filed suit in the same court against the Secretary and various federal officials, seeking a declaration that § 35 of the Mineral Leasing Act still governed distribution of these same oil and gas revenues. If that provision applies, the State will continue to receive 90% of the funds and, so far as federal law is concerned, Kenai Borough none. The District Court consolidated the lawsuits.6
6
The District Court granted summary judgment for the State of Alaska. 436 F.Supp. 288 (1977). Upon examination of the apparently conflicting statutes, the court held that the term "minerals" in the amended Wildlife Refuge Revenue Sharing Act referred only to oil and gas found on land acquired for wildlife refuges. Id., at 292. Distribution of oil and gas revenues from leases on public land reserved for wildlife refuges, it held, continues to be determined by § 35 of the Mineral Leasing Act of 1920.7 Ibid. The court viewed the legislative history of the 1964 amendments as demonstrating that Congress was concerned primarily with the difficulties of acquiring land for refuges and that Congress expected no increase in revenues from the Kenai Moose Range to result from the amendments. Id., at 291-292.
7
The Court of Appeals for the Ninth Circuit affirmed. 612 F.2d 1210 (1980). That court found the legislative history largely ambiguous. Id., at 1213. It refused to find that the addition of the word "minerals" to the amended Wildlife Refuge Revenue Sharing Act had repealed by implication the Mineral Leasing Act of 1920 without a clear showing that this was the intent of Congress. See Morton v. Mancari, 417 U.S. 535, 549-551, 94 S.Ct. 2474, 2482-2483, 41 L.Ed.2d 290 (1974). The court further approved the District Court's holding because it gave effect to each statute. 612 F.2d, at 1214-1215.
8
We granted certiorari sub nom. Andrus v. Alaska, 449 U.S. 818, 101 S.Ct. 68, 66 L.Ed.2d 20 (1980).8 We now affirm.
II
9
The Secretary and the Kenai Borough rely primarily on the "plain language" of § 401(a) of the Wildlife Refuge Revenue Sharing Act. They contend that it provides without ambiguity that mineral resources from all national wildlife refuges be distributed according to the formula described in § 401(a) of the Act. As currently phrased, § 401(a) provides:
10
"[A]ll revenues received by the Secretary of the Interior from the sale or other disposition of animals, salmonoid carcassas [sic ], timber, hay, grass, or other products of the soil, minerals, shells, sand, or gravel, [or] from other privileges . . . shall be . . . reserved in a separate fund for disposition as hereafter prescribed." 16 U.S.C. § 715s(a) (1976 ed., Supp.III).
11
The provision defines the wildlife refuge system to include lands "acquired or reserved" for conservation and protection of certain fish and wildlife. No restriction is placed upon the common meaning of "minerals." Given this clarity, it is argued, resort to the legislative history is unnecessary or improper.
12
We agree with the Secretary that "[t]he starting point in every case involving construction of a statute is the language itself." Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 756, 95 S.Ct. 1917, 1935, 44 L.Ed.2d 539 (1975) (POWELL, J., concurring). See Rubin v. United States, 449 U.S. 424, 101 S.Ct. 698, 66 L.Ed.2d 633 (1981). But ascertainment of the meaning apparent on the face of a single statute need not end the inquiry. Train v. Colorado Public Interest Research Group, 426 U.S. 1, 10, 96 S.Ct. 1938, 1942, 48 L.Ed.2d 434 (1976); United States v. American Trucking Assns., Inc., 310 U.S. 534, 543-544, 60 S.Ct. 1059, 1063-1064, 84 L.Ed. 1345 (1940). This is because the plain-meaning rule is "rather an axiom of experience than a rule of law, and does not preclude consideration of persuasive evidence if it exists." Boston Sand Co. v. United States, 278 U.S. 41, 48, 49 S.Ct. 52, 54, 73 L.Ed. 170 (1928) (Holmes, J.).9 The circumstances of the enactment of particular legislation may persuade a court that Congress did not intend words of common meaning to have their literal effect. E. g., Church of the Holy Trinity v. United States, 143 U.S. 457, 459, 36 L.Ed. 226 (1892); United States v. Ryan, 284 U.S. 167, 175, 52 S.Ct. 65, 68, 76 L.Ed. 224 (1931).
13
Sole reliance on the "plain language" of § 401(a) would assume the answer to the question at issue. These cases involve two statutes, each of which by its literal terms applies to the facts before us. Restatement of the terms of § 401(a) cannot answer which statute Congress intended to control. Recognizing this, the Secretary invokes the maxim of construction that the more recent of two irreconcilably conflicting statutes governs. 2A C. Sands, Sutherland on Statutes and Statutory Construction § 51.02 (4th ed. 1973). Without depreciating this general rule, we decline to read the statutes as being in irreconcilable conflict without seeking to ascertain the actual intent of Congress. Our examination of the legislative history is guided by another maxim: " 'repeals by implication are not favored,' " Morton v. Mancari, 417 U.S., at 549, 94 S.Ct., at 2482, quoting Posadas v. National City Bank, 296 U.S. 497, 503, 56 S.Ct. 349, 352, 80 L.Ed. 351 (1936). "The intention of the legislature to repeal must be 'clear and manifest.' " United States v. Borden Co., 308 U.S. 188, 198, 60 S.Ct. 182, 188, 84 L.Ed. 181 (1939), quoting Red Rock v. Henry, 106 U.S. 596, 602, 27 L.Ed. 251 (1883). We must read the statutes to give effect to each if we can do so while preserving their sense and purpose. Mancari, supra, 417 U.S., at 551, 94 S.Ct., at 2483; see Haggar Co. v. Helvering, 308 U.S. 389, 394, 60 S.Ct. 337, 339, 84 L.Ed. 340 (1940).
III
14
Congress gave extensive consideration to the purpose and probable effect of the 1964 amendments to the Wildlife Refuge Revenue Sharing Act. Pub.L. 88-523, 78 Stat. 701. Nonetheless, and we think it significant, there is no explanation in the legislative history for the addition of the single word "minerals" to the list of refuge resources subject to the Act. See H.R.Rep.No.1753, 88th Cong., 2d Sess. (1964) (hereinafter 1964 H.R.Rep.); S.Rep.No.1096, 88th Cong., 2d Sess. (1964) (hereinafter 1964 S.Rep.), U.S.Code Cong. & Admin.News 1964, p. 3265; 110 Cong.Rec. 19882-19883 (1964) (remarks of Rep. Ostertag). Our study of the few legislative materials pertinent to the insertion of "minerals" persuades us that Congress intended to work no change in the pre-existing formula for distribution of mineral revenues from federal wildlife refuges.
A.
15
Prior to 1964, § 35 of the Mineral Leasing Act of 1920 governed distribution of revenues from mineral leases on wildlife refuges withdrawn from public lands. This conclusion cannot be seriously questioned. First, from the time the first mineral revenues were generated on such lands until well after 1964, the Secretary invariably distributed the revenues as provided in the Mineral Leasing Act. Second, the Comptroller General long ago ruled that the only other arguably applicable statute, the then unamended Wildlife Refuge Revenue Sharing Act, Act of June 15, 1935, ch. 261, 49 Stat. 383 (hereinafter 1935 Refuge Act), see n. 4, supra, did not govern the disposal of revenues from mineral leases on wildlife refuges. 21 Comp.Gen. 873 (1942). See also Comp.Gen., B-105133, Oct. 10, 1951, App. 82.10
16
Third, our opinion in Udall v. Tallman, 380 U.S. 1, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965), strongly suggests that the Mineral Leasing Act of 1920 governed the distribution of revenues from reserved refuge lands prior to 1964. That case involved the authority of the Secretary to issue oil leases on the Kenai Moose Range after the lands had been withdrawn from the public domain by Executive Order. In holding that the Executive Order did not deprive the Secretary of this power, this Court held that the Mineral Leasing Act of 1920 conferred the necessary statutory authorization on the Secretary to grant the leases. "The Act excluded from its application certain designated lands, but did not exclude land within wildlife refuge areas." Id., at 4, 85 S.Ct., at 795 (footnote omitted).11 Because § 35 of the Mineral Leasing Act prescribes the distribution formula for revenues received from all leases issued "under the provisions of this chapter," we think it an inescapable deduction from Tallman that, prior to 1964, the Act continued to provide the formula for disposition of revenues generated by leases on public lands after the lands were withdrawn for wildlife refuges.
17
Neither the Mineral Leasing Act of 1920 nor the 1935 Refuge Act authorized the Secretary to issue leases for mineral extraction from refuges created from acquired lands. 40 Op.Atty.Gen. 9 (1941) (Attorney General Jackson); 21 Comp.Gen. 873 (1942). Congress responded by passing the Mineral Leasing Act for Acquired Lands, Act of Aug. 7, 1947, ch. 513, 61 Stat. 913, 30 U.S.C. § 351 et seq. See n. 10, supra. In addition to conferring authority on the Secretary to issue leases for specified minerals, including oil and gas, it provided that revenues from the leases be "distributed in the same manner as prescribed for other receipts from the lands affected by the lease." 30 U.S.C. § 355. As applied to wildlife refuges created from acquired lands, this provision requires that mineral revenues be distributed according to the formula in the 1935 Refuge Act.
18
Thus, when Congress amended the Wildlife Refuge Revenue Sharing Act in 1964, the disposition of oil and gas revenues was reasonably clear. Such revenues from reserved refuge lands were distributed according to the Mineral Leasing Act of 1920. Revenues from acquired refuge lands were distributed according to the formula in the 1935 Refuge Act, not by its own terms, but by operation of the 1947 Mineral Leasing Act for Acquired Lands.
B
19
The question presented by these cases is whether Congress intended to alter this program of revenue distribution when it amended the 1935 Refuge Act in 1964. The impetus for proposals leading to the passage of the amendments was the difficulty the Department had experienced in acquiring new refuge lands. See, 1964 S.Rep. 5; 1964 H.R.Rep. 2. Localities resisted having land removed from local tax rolls. The purpose of the amendments was to "provide a more equitable formula for payments to counties as compensation for loss of taxable properties that have been acquired by the Federal wildlife refuge system." 1964 S.Rep. 2. See 1964 H.R.Rep. 2-3. Public Law 88-523 met this problem by changing the formula for distribution of revenues from refuges consisting of acquired lands. § 401(c)(1), 78 Stat. 701. The new formula provided that counties within which acquired refuge lands lay could receive, at their option, a payment based on the adjusted cost of the lands rather than on revenues produced.12 Congress intended the Department to pay more to counties under the new law than it had under the old.
20
There is no explanation in the legislative history of Pub.L. 88-523 for the insertion of "minerals" in the list of resources subject to the Wildlife Refuge Revenue Sharing Act. Such silence is suggestive, because Congress was concerned that the Department have sufficient funds to make the increased payments mandated by the amendments.13 See 1964 S.Rep. 12 (statement of Secretary Udall); 1964 H.R.Rep. 11. Congress might be expected to have mentioned a change wrought through the amendments which would increase refuge revenues by amounts exceeding total existing refuge revenues.14
21
During deliberations on the amendments, the Fish and Wildlife Service presented to Senate and House Committees tables showing present payments to counties containing refuges, and payments estimated under the proposed amendments. 1964 S.Rep. 13; 1964 H.R.Rep. 3. The relevant table shows no change in the expected payments to the Borough of Kenai Peninsula. This table assumed that oil and gas revenues were governed by the Mineral Leasing Act of 1920 both before and after the amendments.15
22
The inference seems inescapable that Congress in 1964 did not intend by the insertion of "minerals" in § 401(a) of the Wildlife Refuge Revenue Sharing Act to subject revenues from oil leases on reserved refuge lands to its distribution formula. The more reasonable explanation for the intended effect of including "minerals" is provided by the Department of the Interior. The insertion of "minerals" appears first in 1962 in proposed bills supported by the Department as substitutes for other bills then pending before the House and Senate to increase payments to counties. S. 2138, 87th Cong., 1st Sess. (1961); H.R. 13176, 87th Cong., 2d Sess. (1962). In its report to the Committees, the Department offered no particular explanation for this new term, but the Secretary here concedes that this change was included within the proposal's descriptive category of "various perfecting . . . provisions." See Letter from Frank P. Briggs, Assistant Secretary of the Interior, June 20, 1962, in S.Rep.No.1919, 87th Cong., 2d Sess., 13 (1962); H.R.Rep.No.2499, 87th Cong., 2d Sess., 4 (1962).
23
The insertion of "minerals" in § 401(a) could both leave the mineral revenues from reserved lands subject to the Mineral Leasing Act of 1920 and "perfect" § 401(a) by incorporating prior changes. The 1974 Mineral Leasing Act for Acquired Lands subjected mineral revenues from lands acquired for wildlife refuges to the distribution formula in the 1935 Refuge Act. We hold that Congress inserted "minerals" in the amended § 401(a) to recognize the effect of the 1947 Act and to make clear that the amended distribution formula applied to mineral revenues from acquired lands. This conclusion draws support from the evident fact that Congress was concerned almost exclusively with problems related to acquired refuge lands in adopting the 1964 amendments.
24
Finally, the Department of the Interior interpreted the amendments when passed, and for 10 years thereafter, as not altering the distribution formula. The Department's contemporaneous construction carries persuasive weight. Udall v. Tallman, 380 U.S., at 16, 85 S.Ct., at 801. Such attention to contemporaneous construction is particularly appropriate in these cases, because the Department first proposed the amendment. See SEC v. Sloan, 436 U.S. 103, 120, 98 S.Ct. 1702, 1712, 56 L.Ed.2d 148 (1978). The Department's current interpretation, being in conflict with its initial position, is entitled to considerably less deference. See General Electric Co. v. Gilbert, 429 U.S. 125, 143, 97 S.Ct. 401, 411, 50 L.Ed.2d 343 (1976). In these cases, we find it wholly unpersuasive.
IV
25
In summary, we hold that revenues generated by oil and gas leases on federal wildlife refuges consisting of reserved public lands must be distributed according to the formula provided in § 35 of the Mineral Leasing Act of 1920. Finding no "clearly expressed congressional intention" to repeal this provision by implication, Morton v. Mancari, 417 U.S., at 551, 94 S.Ct., at 2483, we conclude that the term "minerals" in § 401(a) of the Wildlife Refuge Revenue Sharing Act applies only to minerals on acquired refuge lands. Accordingly, the judgment of the Court of Appeals is affirmed.
26
It is so ordered.
27
Justice STEVENS, concurring.
28
My colleagues periodically criticize the way the Court manages its docket. Most frequently, such criticism takes the form of a dissent from the denial of certiorari. See, e.g., Brown Transport Corp. v. Atcon, Inc., 439 U.S. 1014, 99 S.Ct. 626, 58 L.Ed.2d 687 (WHITE, J., dissenting). Although I consider the practice of dissenting from denials of certiorari counterproductive, see Singleton v. Commissioner, 439 U.S. 940, 942-946, 99 S.Ct. 335, 58 L.Ed.2d 335 (opinion of STEVENS, J.), in the context of the present cases it may be appropriate to suggest that the Court may misuse its scarce resources not only by occasionally denying certiorari in cases deserving plenary consideration, but also by granting certiorari without adequate justification.1 As long as the Court creates unnecessary work for itself in this manner, its expressions of concern about the overburdened federal judiciary will ring with a hollow echo.
29
In these cases, the Court of Appeals for the Ninth Circuit should have been permitted to provide the final answer to the unique question of statutory construction presented by the petitions for certiorari. The decision of the Court of Appeals did not conflict with any other judicial decision, and there is no reason to anticipate that a comparable issue will arise in another Circuit in the foreseeable future.2 I fully agree with the majority's explanation of why the Court of Appeals correctly read these ambiguous statutes, but even if I were persuaded that Justice STEWART had the better of the argument, I still would feel that the public interest would have been better served by allowing this litigation to terminate in the Court of Appeals.
30
The question of how to divide the revenues from oil and gas leases on public lands in the Kenai Peninsula is clearly a matter for Congress to decide. If Congress is displeased with the decisions of this Court and the Court of Appeals, it may promptly reverse them by revising the relevant statutes. If that is its view, it no doubt would have acted more promptly if we had simply denied certiorari.3 On the other hand, if we have correctly perceived the intent of the legislature, nothing has been gained by protracting this litigation. Admittedly, a significant amount of money was at stake, see ante, at 263, n. 6, but the offsetting costs associated with holding the funds in escrow pending our review, as well as the costs associated with the expenditure of this Court's material and human resources, are also significant.
31
The federal judicial system is undergoing profound changes. Among the most significant is the increase in the importance of our courts of appeals. Today they are in truth the courts of last resort for almost all federal litigation. Like other courts of last resort—including this one—they occasionally render decisions that will not withstand the test of time. No judicial system is perfect and no appellate structure can entirely eliminate judicial error. Most certainly, this Court does not sit primarily to correct what we perceive to be mistakes committed by other tribunals. Although our work is often accorded special respect because of its finality,4 we possess no judicial monopoly on either finality or respect. The quality of the work done by the courts of appeals merits the esteem of the entire Nation, but, unfortunately, is not nearly as well or as widely recognized as it should be. Indeed, I believe that if we accorded those dedicated appellate judges the deference that their work merits, we would be better able to resist the temptation to grant certiorari for no reason other than a tentative prediction that our review of a case may produce an answer different from theirs. In my opinion, that is not a sufficient reason for granting certiorari.5 Because no other reason for reviewing this case is apparent, a simple denial of certiorari would have been an appropriate and efficient disposition.
32
My disagreement in these cases with the Court's management of its docket does not, of course, prevent me from joining Justice POWELL's opinion for the Court on the merits.
33
Justice STEWART, with whom THE CHIEF JUSTICE and Justice MARSHALL join, dissenting.
34
Today the Court strains to conclude that Congress did not mean what it said, and judicially repeals a reasonable1 and specific legislative provision because the provision announced a change in the law the Court divines to have been unintended.
35
The Wildlife Refuge Revenue Sharing Act, as amended in 1964, expressly provides that "all revenues received by the Secretary of the Interior from the sale or other disposition of . . . minerals . . ." within federal wildlife refuges administered by the Fish and Wildlife Service shall be "reserved in a separate fund for disposition as hereafter prescribed." 16 U.S.C. § 715s(a) (1976 ed., Supp.III). At the end of each fiscal year, a portion of these revenues is to be distributed to the counties in which the refuges are located. In the case of "any reserve area," expressly defined as "land withdrawn from the public domain" for wildlife refuge purposes, § 715s(g)(3), the allocation to the county is 25% of net receipts. § 715s(c)(2). Alternative formulas are specified for refuges created out of "fee areas." § 715s(c)(1). Net receipts remaining after the payments to counties "shall be transferred to the Migratory Bird Conservation Fund for use in the acquisition of suitable areas for migratory bird refuges." § 715s(e). The statute draws no distinction between mineral revenues and receipts from other natural resources or between revenues from "acquired" lands and those from "reserved" lands. The statutory scheme is therefore clear: receipts from mineral leases, like all other revenues generated from wildlife refuges, whether the refuge is comprised of reserved or acquired lands, are to be apportioned between the counties and the federal Migratory Bird Conservation Fund. No receipts are to go to the State itself.
36
The Court argues that the addition of the word "minerals" to the Wildlife Refuge Revenue Sharing Act must be read to apply only to acquired refuge lands and not to reserved refuge lands. But there is no support, in law or legislative history, for exempting mineral revenues from refuges consisting of reserved public lands from the distribution formula of the Wildlife Refuge Revenue Sharing Act. The District Court concluded that "there is nothing in 16 U.S.C. § 715s which would support a restrictive construction of the word 'minerals,' " and that "a literal approach of statutory construction would dictate an expansive definition including both reserved and acquired lands." 436 F.Supp. 288, 291. Similarly, the Court of Appeals found that "under the plain meaning of minerals and of the other provisions of § 715s, its language fairly brings the Kenai Moose Range oil and gas revenues within its scope." 612 F.2d 1210, 1213. It was a mistake for either court to proceed further.
37
The addition of the word "minerals" to the Wildlife Refuge Revenue Sharing Act in 1964 would be meaningless if it reached only leases of acquired lands. And, "[i]n construing a statute we are obliged to give effect, if possible, to every word Congress used." Reiter v. Sonotone Corp., 442 U.S. 330, 339, 99 S.Ct. 2326, 2331, 60 L.Ed.2d 931. Section 6 of the Mineral Leasing Act for Acquired Lands, 30 U.S.C. § 355, already provided that mineral leases of acquired lands "shall be distributed in the same manner as prescribed for other receipts from the lands affected by the lease." Accordingly, any allocation scheme established for wildlife refuges encompassing acquired lands would automatically apply to mineral revenues, as well as those from the resources specified in the Refuge Act. As there was no ambiguity on that point, there was no useful purpose for Congress to declare once again how mineral revenues from acquired lands within wildlife refuges would be allocated.2 The suggestion, therefore, that the 1964 amendment reached only acquired lands presumes that the design of Congress in adding the word minerals was to accomplish precisely nothing.
B
38
The Court concludes that the statute does not mean what it says because the Wildlife Refuge Revenue Sharing Act of 1964 is in conflict with the Mineral Leasing Act of 1920,3 and because "repeals by implication are not favored." Ante, at 267. But that canon of construction has no force in this context. The challenged section in the 1964 Act, far from "repealing" the 1920 Act, merely established a limited and specific exception to one of the provisions in the earlier law. When the text of a new statute, dealing with a discrete subject, is unambiguous, it should be given effect even if it alters a previous law that dealt with the same general subject.
39
The maxim that "repeals by implication are disfavored" has force when the argument is made that a general statute, wholly occupying a field, eviscerates an earlier and more specific enactment of limited coverage but without an indication of congressional intent to do so. In such a case, it may be reasonable to presume that Congress had not anticipated that its broad pronouncement would have serious implications in a peripheral, or even quite different, area, and that had it recognized that a specific earlier law would be rendered meaningless by a new enactment, it would have expressly indicated its intent to repeal or amend.
40
Thus, in Morton v. Mancari, 417 U.S. 535, 94 S.Ct. 2474, 41 L.Ed.2d 290, the Court refused to find a repeal where the words of the Equal Employment Opportunity Act of 1972, if taken literally, would have worked a repeal of an Indian preference policy consistently recognized by Congress for almost 40 years. The Court's description of Mancari as "a prototypical case where an adjudication of repeal by implication is not appropriate," id., at 550, 94 S.Ct., at 2482, is instructive: "The preference is a longstanding, important component of the Government's Indian program. The anti-discrimination provision, aimed at alleviating minority discrimination in employment, obviously is designed to deal with an entirely different and, indeed, opposite problem." Ibid., see also Fussell v. Gregg, 113 U.S. 550, 5 S.Ct. 631, 28 L.Ed. 993. The contrast with these cases is obvious. The provision in the more recent enactment deals specifically with the same subject—distribution of revenue from leases on federal lands that had been the object of an earlier, and more general,4 statute.5 In any case, there is more than enough evidence to indicate that Congress was aware of what it was doing when the word "minerals" was added to the Wildlife Refuge Revenue Sharing Act.
41
The legislative history of the 1964 amendments to 16 U.S.C. § 715s (1976 ed., Supp.III) discloses that Congress had before it numerous bills from which to choose to compensate counties in which wildlife refuges were located, some of which omitted any reference to "minerals," S.2138, 87th Cong., 1st Sess. (1961); S.2678, 2770, 2927, 3201, 87th Cong., 2d Sess. (1962); H.R.12144, 12143, 11535, 11525, 10714, 87th Cong., 2d Sess. (1962); S.1720, 88th Cong., 1st Sess. (1963); and some that included such reference, H.R.2393, 1004, 1127, 9030, 5996, 88th Cong., 1st Sess. (1963); H.R.11008, 88th Cong., 2d Sess. (1964); S.179, 1363, 88th Cong., 1st Sess. (1963); S.2498, 88th Cong., 2d Sess. (1964). Presumably, when Congress adopted a bill containing the term, it was aware of the difference. Moreover, the 1964 amendment was not a "technical" amendment, nor was it a last-minute addition from the floor. SeeUnited States v. Batchelder, 442 U.S. 114, 120, 99 S.Ct. 2198, 2202, 60 L.Ed.2d 755. The suggestion that the word "minerals" be added to 16 U.S.C. § 715s (1976 ed., Supp.III) was raised in June 1962 when the Interior Department submitted a substitute bill for those pending in the House and Senate. Report of the Department of the Interior dated June 20, 1962, in S.Rep.No.1919, 87th Cong., 2d Sess., 13, 15 (1962); Report of the Department of the Interior of June 22, 1962, in Authorize Increased Payments to Counties for Wildlife Refuges: Hearings on H.R.10714, H.R.11525, H.R.11535, H.R.12143, and H.R.12144 before the Subcommittee on Fisheries and Wildlife Conservation of the House Committee on Merchant Marine and Fisheries, 87th Cong., 2d Sess., 7, 9 (1962). The amendment was not highlighted, but it is unlikely that it escaped notice.6 Later the same year, the relevant Committees of both the House and Senate adopted the language, S.Rep.No.1919, supra, at 19; H.R.Rep.No.2499, supra, at 9, and the text was before Congress for the following two years.
42
It is therefore very difficult to conclude that the addition was inadvertent or unnoticed.7 But, in any case, nothing in the legislative history demonstrates congressional intent different from that reflected in the words of the statute. " 'The most that can be said for the legislative history is that it is on the whole inconclusive. Certainly, it contains nothing that requires the court to reject the construction which the statutory language clearly requires.' " Ullman v. United States, 350 U.S. 422, 433, 76 S.Ct. 497, 503, 100 L.Ed. 511.
43
The Court today is bothered because the literal meaning of a statute altered prevailing law.8 But usually the very point of new legislation is to alter prevailing law. "Every act is made, either for the purpose of making a change in the law, or for the purpose of better declaring the law; and its operation is not to be impeded by the mere fact that it is inconsistent with some previous enactment." T. Sedgwick, The Interpretation and Construction of Statutory and Constitutional Law 104 (2d ed. 1874). Congress does not have the affirmative obligation to explain to this Court why it deems a particular enactment wise or necessary, or to demonstrate that it is aware of the consequences of its action.9 See Harrison v. PPG Industries, Inc., 446 U.S. 578, 592, 100 S.Ct. 1889, 1897, 64 L.Ed.2d 525. And "[i]t is not a function of this Court to presume that 'Congress was unaware of what it accomplished.' " Albernaz v. United States, 450 U.S. 333, 342, 101 S.Ct. 1137, 1144, 67 L.Ed.2d 275 (quoting U.S. Railroad Retirement Board v. Fritz, 449 U.S. 166, 179, 101 S.Ct. 453, 461, 66 L.Ed.2d 368.
44
Rather than join the Court in its speculative efforts to deal with the doctrine of implied repeal, I would rest decision of these cases upon an established rule of statutory construction: leges posteriores, priores contrarias abrogant. Sedgwick describes this rule with approval as follows: " 'If two inconsistent acts be passed at different times, the last,' said the Master of the Rolls, 'is to be obeyed; and if obedience cannot be observed without derogating from the first, it is the first which must give way.' " Sedgwick, supra, at 104. See District of Columbia v. Hutton, 143 U.S. 18, 26-27, 12 S.Ct. 369, 371-372, 36 L.Ed. 60; Henderson's Tobacco, 11 Wall. 652, 657, 20 L.Ed. 235; United States v. Tynen, 11 Wall. 88, 92, 20 L.Ed. 153. Observance of this rule also allows the Court to respect the most basic of all canons of statutory construction: that statutes mean what they plainly say.10 As Chief Justice Marshall said more than a century and a half ago: "[T]he intention of the legislature is to be collected from the words they employ. Where 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.
45
I respectfully dissent.
1
Today, the Kenai Moose Range is the only national wildlife refuge created from public lands where oil is being pumped. See Brief for Federal Petitioners 4, n. 4. Substantial quantities of oil, however, are thought to underlie other reserved refuge lands in Alaska.
2
Between 1966 and 1976, Kenai Range generated more than $57 million in oil lease revenues. App. 64. In 1964, Kenai Range generated more than $3.8 million in revenues from oil and gas leases. In that same year, refuges on reserved public land in the contiguous 48 States generated $3,143 in oil and gas revenues. App. to Brief for Federal Petitioners 1a-2a. In interpreting Congress' directions for distribution of oil revenues from reserved refuge lands, it should be remembered that historically Kenai alone has generated such revenues.
3
In pertinent part, the current § 35, as set forth in 30 U.S.C. § 191, provides:
"All money received from sales, bonuses, royalties, and rentals of the public lands under the provisions of this chapter . . . shall be paid into the Treasury of the United States; . . . of those from Alaska . . . 90 per centum thereof shall be paid to the State of Alaska for disposition by the legislature. . . ."
States other than Alaska receive only 50% of public land mineral revenues under the Act. Ibid.
By its terms, the Mineral Leasing Act applies to specified minerals, including oil and gas, on all lands owned by the United States, except those lands excluded by the Act. 30 U.S.C. § 181. See Udall v. Tallman, 380 U.S. 1, 4, and n. 3, 85 S.Ct. 792, 795 and n. 3, 13 L.Ed.2d 616 (1965).
4
Prior to 1964, § 401 governed distribution of revenues from "the sale or other disposition of surplus wildlife, or of timber, hay, grass, or other spontaneous products of the soil, shell, sand, or gravel, and from other privileges on refuges." Act of June 15, 1935, ch. 261, 49 Stat. 378, 383. The current version of § 401(a) is given in the text, infra, at 265.
5
Section 401(c) currently provides:
"(1) The Secretary shall pay out the fund, for each fiscal year . . ., to each county in which is situated any fee area whichever of the following amounts is greater:
"(A) An amount equal to the product of 75 cents multiplied by the total acreage of that portion of the fee area which is located within such county.
"(B) An amount equal to three-fourths of 1 per centum of the fair market value, as determined by the Secretary, of that portion of the fee area . . . which is located within such county.
"(C) An amount equal to 25 per centum of the net receipts collected by the Secretary in connection with operation of and management of such fee area during the fiscal year. . . .
"(2) At the end of each fiscal year the Secretary shall pay out of the fund for such fiscal year to each county in which any reserve area is situated, an amount equal to 25 per centum of the net receipts collected by the Secretary in connection with the operation and management of such area during such fiscal year. . . ." 16 U.S.C. § 715s(c) (1976 ed., Supp.III).
Section 401(b) allows the Secretary to pay any expenses related to revenue production or distribution from this fund. Section 401(e) provides that funds remaining after expenses and the States are paid are transferred to the Migratory Bird Conservation Fund, established for the laudable purpose of purchasing migratory bird refuges.
6
Since this litigation commenced in 1976, 90% of oil and gas revenues from the Kenai Range has been paid into an escrow account that now contains more than $23 million. Brief for Federal Petitioners 4, n. 4. In addition to declaratory relief, Kenai Borough sought an accounting of revenues paid to the State since 1964 under the Mineral Leasing Act of 1920 but allegedly due the Borough, and recovery of such payments. The State sought a resumption of accustomed payments under the Mineral Leasing Act.
7
In general, "acquired lands are those granted or sold to the United States by a State or citizen and public domain lands were usually never in state or private ownership." Wallis v. Pan American Petroleum Corp., 384 U.S. 63, 65, n. 2, 86 S.Ct. 1301, 1302 n. 2, 16 L.Ed.2d 369 (1966). The Mineral Leasing Act of 1920 applies only to public lands. Id., at 65, 86 S.Ct., at 1302.
8
In 1978, Congress rejected new amendments to § 401(a) that would have defined minerals as "including, but not limited to, crude petroleum and natural gas." H.R. 8394, 95th Cong., 2d Sess. (1978). The House Report recommending this bill stated that the language was added to "insure" that after the effective date oil and gas revenues from Kenai would be distributed according to the formula in § 401(c). H.R.Rep.No.95-1197, p. 8 (1978). The Report disclaims any intention to affect the outcome of these cases, then pending in the Court of Appeals. Ibid. The Senate then rejected even this amendment, Members stating that it would be inappropriate to make any judgment about the proper allocation of these resources while these cases were still in the courts. 124 Cong.Rec. 31436-31440 (1978) (remarks of Sen. Culver and Sen. Gravel).
The sole issue that has been before the courts during this five years of litigation is the intent of Congress in adding the single term "minerals" to the statute in 1964. Congress declined to clarify its intent in 1978. Accordingly, we are left to resolve by judicial construction what should be addressed as a question of legislative policy judgment: the appropriate distribution among federal, state, and local governments of natural resource revenues.
9
"Of course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract, or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning." Cabell v. Markham, 148 F.2d 737, 739 (CA2) (L. Hand, J.), aff'd, 326 U.S. 404, 66 S.Ct. 193, 90 L.Ed. 165 (1945).
10
The Secretary speculates that Congress in 1964 probably assumed that oil and gas revenues from refuges on reserved lands were governed by the 1935 Refuge Act. The basis for this argument is language in the 1935 Refuge Act, continued today, that the Act governed the disposition of "shell, sand, or gravel, and from other privileges on refuges." See n. 4, supra. It sometimes was contended that "other privileges" included oil and gas leases. See Memorandum of July 6, 1951, Chief Counsel of the Fish and Wildlife Service, App. 87.
As noted, the Comptroller General rejected this contention in 1942 and 1951. For the reasons elaborated in the text, we believe that it was understood by Congress that the 1935 Refuge Act did not govern the leasing of minerals. Indeed, even the 1946 opinion of the Solicitor of the Department of the Interior that the provision authorized oil leases on acquired refuge lands, App. 68, is contradicted by Congress' passage of the Mineral Leasing Act for Acquired Lands, Act of Aug. 7, 1947, ch. 513, 61 Stat. 913, 30 U.S.C. § 351 et seq., which subsequently conferred this very authority on the Department. See also 40 Op.Atty.Gen. 9 (1941).
The dissent also speculates—inconsistently, we think—that Congress embraced this often discredited interpretation of the 1935 Refuge Act, post, at 279-280, n. 3. The dissent criticizes the Court for concluding that Congress' insertion of "minerals" in § 401(a) did not change pre-existing law. Post, at 278-279. The dissent then explains that Congress added "minerals" in 1964 not to change the law, but to reaffirm that the 1935 Refuge Act already governed disposition of oil revenues from reserved refuge lands. Post, at 279-280, n. 3. In other words, the dissent contradicts itself and joins us in positing that the addition of "minerals" was never intended to work a substantive change, but disagrees merely about what the law provided prior to the 1964 amendments.
11
The Secretary argues that Tallman's construction of the Mineral Leasing Act should not now be binding, because the Court did not need to construe the Act. This is incorrect. The Court was required to determine that the Secretary had statutory authority to issue oil leases on refuges withdrawn from public lands, before it could reach the question whether the Executive Orders withdrawing the refuge lands limited that authority. The Court examined the language of § 1 of the Act and found that it gave the Secretary the requisite authority. See 380 U.S., at 4, n. 3, 85 S.Ct., at 795, n. 3.
12
The 1964 payment formula was liberalized further in 1978. Pub.L. 95-469, § 1(a)(3), 92 Stat. 1319. See n. 5, supra (quoting present law).
13
The silence of Congress may provide a treacherous guide to its intent. Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4, 11, 62 S.Ct. 875, 880, 86 L.Ed. 1229 (1942). Here, however, it is almost inconceivable that Congress knowingly would have changed substantially a long-standing formula for distribution of substantial funds without a word of comment. In 1978, Congress inserted "salmonoid carcass[e]s" into the list of resources governed by § 401(a) of the Wildlife Refuge Revenue Sharing Act. Pub.L. 95-469, § 1(a)(1), 92 Stat. 1319. Even for this comparatively trivial addition, Congress explicitly stated, "[s]almonoid carcasses have been included to allow for the sale of salmon used in hatchery operations." H.R.Rep.No.95-1197, p. 8 (1978).
14
In 1963, net receipts from the national wildlife system totaled $2,350,000. 1964 H.R.Rep.No.1753, 88th Cong., 2d Sess., 11. In 1964, revenues from oil and gas leases in the Kenai Moose Range exceeded $3,800,000. App. to Brief for Federal Petitioners 2a.
15
The table indicated that 1963 payments to the Kenai Peninsula Borough under the Wildlife Refuge Revenue Sharing Act, amended or unamended, totaled $1,768. 1964 H.R.Rep. 3. This figure cannot include 25% of the revenues from oil and gas leases. See n. 14, supra.
1
Of course, these two problems are not wholly independent of one another. In light of the ever-increasing number of petitions for certiorari and the severe practical constraints on our ability freely to grant certiorari, it is certainly safe to assume that whenever we grant certiorari in a case not deserving plenary review, we increase the likelihood that certiorari will be denied in other, more deserving, cases.
2
Neither of the petitions for certiorari filed in these cases suggested that the Court of Appeals' decision conflicted with any other judicial decision. In addition, the Solicitor General, in the petition filed on behalf of the federal parties, observed that the question of statutory construction presented here was unlikely to arise in the foreseeable future in another Circuit. See Pet. for Cert. in No. 79-1890, p. 18.
3
In fact, Congress declined to clarify its intention with respect to the distribution of the Kenai oil and gas leasing revenues in part because of the concerns of some of its Members that such legislative action would be inappropriate while these cases were still pending in the federal courts. See ante, at 264-265, n. 8; post, at 285, n. 10.
4
Indeed, as Justice Jackson once noted, "[w]e are not final because we are infallible, but we are infallible only because we are final." Brown v. Allen, 344 U.S. 443, 540, 73 S.Ct. 397, 427, 97 L.Ed. 469 (concurring in result).
5
The possibility that a lower court may have incorrectly decided a federal question is, of course, a relevant factor when this Court decides whether to exercise its discretionary certiorari jurisdiction. However, as Rule 17.1 of the Rules of this Court makes plain, our certiorari jurisdiction is designed to serve purposes broader than the correction of error in particular cases:
"A review on writ of certiorari is not a matter of right, but of judicial discretion, and will be granted only when there are special and important reasons therefor. The following, while neither controlling nor fully measuring the Court's discretion, indicated the character of reasons that will be considered.
"(a) When a federal court of appeals has rendered a decision in conflict with the decision of another federal court of appeals on the same matter; or has decided a federal question in a way in conflict with a state court of last resort; or has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such a departure by a lower court, as to call for an exercise of this Court's power of supervision.
"(b) When a state court of last resort has decided a federal question in a way in conflict with the decision of another state court of last resort or of a federal court of appeals.
"(c) When a state court or a federal court of appeals has decided an important question of federal law which has not been, but should be, settled by this Court, or has decided a federal question in a way in conflict with applicable decisions of this Court."
By its own terms, Rule 17.1 "neither control[s] nor fully measur[es]" the extent of our discretion to grant or to deny certiorari. Nonetheless, it is surely significant that none of the factors identified in the Rule can fairly be said to be present in these cases.
1
There is nothing unreasonable, or even unusual, about a system of revenue sharing that returns a portion to the locality most immediately affected rather than to the State at large. The payment of 25% of the revenues to the county in which the refuge is situated compensates the county for tax revenue lost because of the public status of the lands and for any local services made necessary because of the refuge, and the payment of 75% to the special fund provided for in 16 U.S.C. § 715s (1976 ed., Supp.III), satisfies the need to provide a source of revenue for refuge management and maintenance.
2
But see n. 3, infra.
3
While it is clear there is a conflict, it is not at all clear that the conflict is even relevant to these cases. The Court assumes that the 1964 amendment, if given its plain meaning, changed the allocation of oil and gas lease revenues to affected counties. Although, as the Court of Appeals correctly noted, "the legislative history of the 1964 amendments to 16 U.S.C. § 715s sheds no direct light on the issue here," 612 F.2d 1210, 1213, it is arguable that before 1964, oil and gas lease receipts generated from lands in federal wildlife refuges were subject to § 401 of the Wildlife Refuge Act of 1935, ch. 261, 49 Stat. 383, and not to the Mineral Leasing Act of 1920, despite the vigorous contentions of today's Court. See ante, at 1678.
Section 401 of the 1935 Act established a distribution scheme for refuge revenues "from the sale or other disposition" of natural resources and receipts "from other privileges." Although oil and gas leases are not mentioned, the provision was intended to give the administering agency broad authority to make "disposition of surplus . . . products on these reservations or refuges upon such terms and conditions as [it] shall determine to be for the best interests of the Government." H.R.Rep.No.886, 74th Cong., 1st Sess., 3 (1934). In 1946, the Interior Department ruled that oil and gas leases could be granted on wildlife refuge lands under the 1935 Act. Op. Solic. Interior Dept. M. 34516 (Aug. 5, 1946). Under the 1964 amendments to the Wildlife Refuge Revenue Sharing Act, 25% of oil and gas lease revenues are apportioned to the affected counties embracing reserved refuge lands. Accordingly, Congress may have intended that the addition of the word "minerals" in 16 U.S.C. § 715s (1976 ed., Supp.III) was merely a "perfecting provision," S.Rep.No.1919, 87th Cong., 2d Sess., 2 (1962); H.R.Rep.No.2499, 87th Cong., 2d Sess., 4 (1962), and not an amendment of existing law at all.
Indeed, Interior Department spokesmen in the 1962, 1963, and 1964 congressional hearings described the existing law for receipts collected from both reserved public lands and acquired lands as generally subject to § 401 of the 1935 Act. See S.Rep.No.1919, supra, at 2, 13;
H.R.Rep.No.2499, supra, at 4; H.R.Rep.No.1753, 88th Cong., 2d Sess., 14 (1964); S.Rep.No.1096, 88th Cong., 2d Sess., 25 (1964). The Secretary of the Interior stated that "[u]nder existing law, enacted in 1935, the counties in which our refuges are located receive 25 percent of the net revenue from operations on national wildlife refuges, such as oil production, grazing, timber harvest, and the like." More Equitable Payments To Counties Having Wildlife Refuges: Hearings on S. 179, S. 1363, S. 1720, and S. 2498 before the Senate Committee on Commerce, 88th Cong., 2d Sess., 19 (1964) (emphasis added); Participation By Counties In Refuge Receipts: Hearings on H.R. 1127, H.R. 2393, H.R. 5596, H.R. 9030 and H.R. 11008 before the Subcommittee on Fisheries and Wildlife Conservation of the House Committee on Merchant Marine and Fisheries, 88th Cong., 2d Sess., 34 (1964) (emphasis added).
But it is not important to decide today what the true rule for apportionment of mineral resources from refuge lands was before 1964. And, contrary to the Court's assertion, I do not do so here, and "explai[n] that Congress added 'minerals' . . . to reaffirm" that the 1935 Act already controlled the disposition of oil revenues from reserved refuge lands. Ante, at 268, n. 10. In 1964, Congress did not have to resolve the question of what the law had been before; its concern was properly with the future. Ideally, it could have prefaced § 715s with the language "notwithstanding any other provision of law." But it did not. Instead, it introduced an entirely unambiguous prospective rule with the phrase: "Beginning with the next full fiscal year and for each fiscal year thereafter. . . ." At least for me, it needed to do no more.
4
While the Mineral Leasing Act of 1920 covers in general terms the distribution of revenue from federal lands, the later Wildlife Refuge Revenue Sharing Act, as amended in 1964, embraced new provisions that apply with particularity to wildlife refuges, without distinction between those reserved or acquired. To that extent, the later Act must constitute a repeal of the former. "[T]he narrowly drawn, specific . . . provision . . . must prevail over the broader . . . provision. . . ." Radzanower v. Touche Ross & Co., 426 U.S. 148, 158, 96 S.Ct. 1989, 1995, 48 L.Ed.2d 540.
5
These cases do not involve an apparent limitation on an important and pervasive statute, such as the Sherman Act. See, e. g., United States v. Borden Co., 308 U.S. 188, 60 S.Ct. 182, 84 L.Ed. 181. In such a case, as in Mancari, implied repeals are not found because it would be unreasonable to assume Congress would alter fundamental policy without an unambiguous expression of its intent to do so. But it is equally unreasonable to expect Congress to specify, or indeed even to consider, the effect of a new statutory provision on all earlier provisions affecting the same subject that may be swept away by the enactment, particularly if the old provisions are unclear. See n. 3, supra.
6
The Court makes much of the fact that a statistical table comparing revenues actually received by counties with those estimated to result from the amendment showed no change in the amounts from the Kenai Range, and if the amendment meant what a plain reading of it indicates, an increase should have been reflected. Ante, at 271. That straw of evidence scarcely compels the conclusion that the amendment does not mean what it says. It would hardly be surprising if the legislators overlooked a single disparity in a single entry in a lengthy exhibit. And it is noteworthy that the table the Court refers to appeared in the 1964 Reports only, while the addition of the word "minerals" to § 715s was proposed in 1962, when the comparable statistical table did not include any indication of the anticipated payments to counties from public land areas under the proposed amendment. See S.Rep.No.1919, 87th Cong., 2d Sess., 11, nn. 1 and 2 (1962).
7
That Congress explained the addition of "[s]almonoid carcasses," see ante, at 271, n. 13, hardly supports the inference that Congress would also have explained the addition of the word "minerals." By the Court's strained logic, premised on the notion that "[t]he silence of Congress may provide a treacherous guide to its intent," ibid., Congress is put on notice that any time it explains one provision of a statute, no matter how trivial, it does so at its peril. For if it fails similarly to explain all provisions, no matter how important, a court would be free to strike those unexplained provisions as unintended. That, in my view, leads to far more "treacherous" results than those feared by today's Court.
8
This is not a case where the plain meaning of statutory language would lead to an absurd or futile result, see, e. g., Armstrong Paint & Varnish Works v. Nu-Enamel Corp., 305 U.S. 315, 59 S.Ct. 191, 83 L.Ed. 195, or to an unreasonable result at variance with the policy of the legislation as a whole. See, e. g., United States v. American Trucking Assns., Inc., 310 U.S. 534, 60 S.Ct. 1059, 84 L.Ed. 1345. See also Shapiro v. United States, 335 U.S. 1, 31, 68 S.Ct. 1375, 1391, 92 L.Ed. 1787.
9
The Court relies on the fact that the Department of the Interior ignored the 1964 amendment for a decade with respect to oil and gas revenues from the Kenai Range. Ante, at 272-273. But administrative errors are not self-validating. See SEC v. Sloan, 436 U.S. 103, 117-119, 98 S.Ct. 1702, 1711-1712, 56 L.Ed.2d 148; Adamo Wrecking Co. v. United States, 434 U.S. 275, 287-288, n. 5, 98 S.Ct. 566, 573-575, n. 5, 54 L.Ed.2d 538; Dixon v. United States, 381 U.S. 68, 78, 85 S.Ct. 1301, 14 L.Ed.2d 223. Unauthorized payments from the federal Treasury are not immune from correction, and the United States can retrieve money mistakenly dispersed by its officials. United States v. Wurts, 303 U.S. 414, 415-416, 58 S.Ct. 637, 638, 82 L.Ed. 932; Wisconsin Central R. Co. v. United States, 164 U.S. 190, 212, 17 S.Ct. 45, 52, 41 L.Ed. 399. In any case, there is no indication that the administrative practice until 1975 was the result of considered evaluation of the 1964 amendments. Instead it appears that it was the inertial continuation of earlier practice. A much more reliable indication of the administrative construction of the 1964 amendment is the "detailed and comprehensive" re-evaluation by the Department in 1975, confirmed by the Comptroller General. Andrus v. Sierra Club, 442 U.S. 347, 358, 99 S.Ct. 2335, 60 L.Ed.2d 943. See also NLRB v. Iron Workers, 434 U.S. 335, 351, 98 S.Ct. 651, 660, 54 L.Ed.2d 586.
10
Of course, if I am wrong, and Congress did not intend that oil revenues from reserved refuge lands be distributed according to the scheme of the 1964 Act, Congress is always free to revise the statute. It would be far more appropriate, given the constitutional allocation of lawmaking power to Congress and not to the courts, if this Court were to respect the plain meaning of the statute, and leave it to Congress to make any changes it thinks necessary. The Court's readiness to rewrite legislation contributes, I am afraid, to undue congressional willingness to leave it to the courts to do its redrafting. Indeed, the Senate Committee on Environment and Public Works, when confronted with the dispute involved in these cases chose to "tak[e] no position as to whether disposition of mineral revenues should be made pursuant to the Mineral Leasing Act or the Refuge Revenue Sharing Act." S.Rep.No.95-1174, pp. 4, 8 (1978), U.S.Code Cong. & Admin.News 1978, pp. 2979, 2982. See also ante, at 264-265, n. 8.
| 910
|
451 U.S. 204
101 S.Ct. 1642
68 L.Ed.2d 38
Gary Keith STEAGALD, Petitioner,v.UNITED STATES.
No. 79-6777.
Argued Jan. 14, 1981.
Decided April 21, 1981.
Syllabus
Pursuant to an arrest warrant for one Lyons, Drug Enforcement Administration agents entered petitioner's home to search for Lyons without first obtaining a search warrant. In the course of searching the home the agents found cocaine and other incriminating evidence but did not find Lyons. Petitioner was then arrested and indicted on federal drug charges. His pretrial motion to suppress all evidence uncovered during the search of his home on the ground that it was illegally obtained because the agents had failed to obtain a search warrant was denied by the District Court, and petitioner was convicted. The Court of Appeals affirmed.
Held :
1. The Government is precluded from contending in this Court that petitioner lacked an expectation of privacy in his searched home sufficient to prevail on his Fourth Amendment claim, where this argument was never raised in the courts below but rather the Government had made contrary assertions in those courts and acquiesced in their contrary findings. Pp. 208-211.
2. The search in question violated the Fourth Amendment, where it took place in the absence of consent or exigent circumstances. Pp. 211-222.
(a) Absent exigent circumstances or consent, a home may not be searched without a warrant. Two distinct interests were implicated by the search in this case—Lyons' interest in being free from an unreasonable seizure and petitioner's interest in being free from an unreasonable search of his home. Because the arrest warrant for Lyons addressed only the former interest, the search of petitioner's home was no more reasonable from petitioner's perspective than it would have been if conducted in the absence of any warrant. The search therefore violated the Fourth Amendment. Pp. 211-216.
(b) Common law, contrary to the Government's assertion, does not furnish precedent for upholding the search in question but rather sheds little light on the narrow issue presented of whether an arrest warrant, as opposed to a search warrant, is adequate to protect the Fourth Amendment interests of persons not named in the warrant, when their home is searched without their consent and in the absence of exigent circumstances. Moreover, the history of the Fourth Amendment strongly suggests that its Framers would not have sanctioned the search in question. Pp. 217-220.
(c) A search warrant requirement under the circumstances of this case will not significantly impede effective law enforcement efforts. An arrest warrant alone suffices to enter a suspect's own residence, and, if probable cause exists, no warrant is required to apprehend a suspected felon in a public place. Moreover, the exigent-circumstances doctrine significantly limits the situations in which a search warrant is needed. And in those situations in which a search warrant is necessary, the inconvenience incurred by the police is generally insignificant. In any event, whatever practical problems there are in requiring a search warrant in cases such as this, they cannot outweigh the constitutional interest at stake in protecting the right of presumptively innocent people to be secure in their homes from unjustified, forcible intrusions by the government. Pp. 220-222.
606 F.2d 540 and 615 F.2d 642, reversed and remanded.
John Richard Young, Atlanta, Ga., for petitioner.
Andrew L. Frey, Washington, D. C., for respondent.
Justice MARSHALL delivered the opinion of the Court.
1
The issue in this case is whether, under the Fourth Amendment, a law enforcement officer may legally search for the subject of an arrest warrant in the home of a third party without first obtaining a search warrant. Concluding that a search warrant must be obtained absent exigent circumstances or consent, we reverse the judgment of the United States Court of Appeals for the Fifth Circuit affirming petitioner's conviction.
2
* In early January 1978, an agent of the Drug Enforcement Administration (DEA) was contacted in Detroit, Mich., by a confidential informant who suggested that he might be able to locate Ricky Lyons, a federal fugitive wanted on drug charges. On January 14, 1978, the informant called the agent again, and gave him a telephone number in the Atlanta, Ga., area where, according to the informant, Ricky Lyons could be reached during the next 24 hours. On January 16, 1978, the agent called fellow DEA Agent Kelly Goodowens in Atlanta and relayed the information he had obtained from the informant. Goodowens contacted Southern Bell Telephone Co., and secured the address corresponding to the telephone number obtained by the informant. Goodowens also discovered that Lyons was the subject of a 6-month-old arrest warrant.
3
Two days later, Goodowens and 11 other officers drove to the address supplied by the telephone company to search for Lyons. The officers observed two men standing outside the house to be searched. These men were Hoyt Gaultney and petitioner Gary Steagald. The officers approached with guns drawn, frisked both men, and, after demanding identification, determined that neither man was Lyons. Several agents proceeded to the house. Gaultney's wife answered the door, and informed the agents that she was alone in the house. She was told to place her hands against the wall and was guarded in that position while one agent searched the house. Ricky Lyons was not found, but during the search of the house the agent observed what he believed to be cocaine. Upon being informed of this discovery, Agent Goodowens sent an officer to obtain a search warrant and in the meantime conducted a second search of the house, which uncovered additional incriminating evidence. During a third search conducted pursuant to a search warrant, the agents uncovered 43 pounds of cocaine. Petitioner was arrested and indicted on federal drug charges.
4
Prior to trial, petitioner moved to suppress all evidence uncovered during the various searches on the ground that it was illegally obtained because the agents had failed to secure a search warrant before entering the house. Agent Goodowens testified at the suppression hearing that there had been no "physical hinderance" preventing him from obtaining a search warrant and that he did not do so because he believed that the arrest warrant for Ricky Lyons was sufficient to justify the entry and search. The District Court agreed with this view, and denied the suppression motion. Petitioner was convicted, and renewed his challenge to the search in his appeal. A divided Court of Appeals for the Fifth Circuit affirmed the District Court's denial of petitioner's suppression motion. United States v. Gaultney, 606 F.2d 540 (1979).1 Because the issue presented by this case is an important one2 that has divided the Circuits,3 we granted certiorari. 449 U.S. 819, 101 S.Ct. 71, 66 L.Ed.2d 21.
II
5
The Government initially seeks to avert our consideration of the Fifth Circuit's decision by suggesting that petitioner may, regardless of the merits of that decision, lack an expectation of privacy in the house sufficient to prevail on his Fourth Amendment claim. This argument was never raised by the Government in the courts below. Moreover, in its brief in opposition to certiorari the Government represented to this Court that the house in question was "petitioner's residence" and was "occupied by petitioner, Gaultney, and Gaultney's wife." Brief in Opposition 1, 3. However, the Government now contends that the record does not clearly show that petitioner had a reasonable expectation of privacy in the house, and hence urges us to remand the case to the District Court for re-examination of this factual question.
6
We decline to follow the suggested disposition. Aside from arguing that a search warrant was not constitutionally required, the Government was initially entitled to defend against petitioner's charge of an unlawful search by asserting that petitioner lacked a reasonable expectation of privacy in the searched home, or that he consented to the search, or that exigent circumstances justified the entry. The Government, however, may lose its right to raise factual issues of this sort before this Court when it has made contrary assertions in the courts below, when it has acquiesced in contrary findings by those courts, or when it has failed to raise such questions in a timely fashion during the litigation.
7
We conclude that this is such a case. The Magistrate's report on petitioner's suppression motion, which was adopted by the District Court, characterized the issue as whether an arrest warrant was sufficient to justify the search of "the home of a third person" for the subject of the warrant. App. 12. The Government never sought to correct this characterization on appeal, and instead acquiesced in the District Court's view of petitioner's Fourth Amendment claim. Moreover, during both the trial and the appeal in this case the Government argued successfully that petitioner's connection with the searched home was sufficient to establish his constructive possession of the cocaine found in a suitcase in the closet of the house.4 Moreover, the Court of Appeals concluded, as had the Magistrate and the District Court, that petitioner's Fourth Amendment claim involved the type of warrant necessary to search "premises belonging to a third party." 606 F.2d, at 544. Again, the Government declined to disturb this characterization. When petitioner sought review in this Court, the Government could have filed a cross-petition for certiorari suggesting, as it does now, that the case be remanded to the District Court for further proceedings. Instead, the Government argued that further review was unnecessary. Finally, the Government in its opposition to certiorari expressly represented that the searched home was petitioner's residence.
8
Thus, during the course of these proceedings the Government has directly sought to connect petitioner with the house, has acquiesced in statements by the courts below characterizing the search as one of petitioner's residence, and has made similar concessions of its own. Now, two years after petitioner's trial, the Government seeks to return the case to the District Court for a re-examination of this factual issue.5 The tactical advantages to the Government of this disposition are obvious, for if the Government prevailed on this claim upon a remand, it would be relieved of the task of defending the judgment of the Court of Appeals before this Court. We conclude, however, that the Government, through its assertions, concessions, and acquiescence, has lost its right to challenge petitioner's assertion that he possessed a legitimate expectation of privacy in the searched home. We therefore turn to the merits of petitioner's claim.
III
9
The question before us is a narrow one.6 The search at issue here took place in the absence of consent or exigent circumstances. Except in such special situations, we have consistently held that the entry into a home to conduct a search or make an arrest is unreasonable under the Fourth Amendment unless done pursuant to a warrant. See Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); Johnson v. United States, 333 U.S. 10, 13-15, 68 S.Ct. 367, 368-369, 92 L.Ed. 436 (1948). Thus, as we recently observed: "In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant." Payton v. New York, supra, 445 U.S., at 590, 100 S.Ct., at 1382. See, Coolidge v. New Hampshire, 403 U.S. 443, 474-475, 477-478, 91 S.Ct. 2022, 2042-2043, 2044, 29 L.Ed.2d 564 (1971); Jones v. United States, 357 U.S. 493, 497-498, 78 S.Ct. 1253, 1256-1257, 2 L.Ed.2d 514 (1958); Agnello v. United States, 269 U.S. 20, 32-33, 46 S.Ct. 4, 6, 70 L.Ed.2d 145 (1925). Here, of course, the agents had a warrant—one authorizing the arrest of Ricky Lyons. However, the Fourth Amendment claim here is not being raised by Ricky Lyons. Instead, the challenge to the search is asserted by a person not named in the warrant who was convicted on the basis of evidence uncovered during a search of his residence for Ricky Lyons. Thus, the narrow issue before us is whether an arrest warrant—as opposed to a search warrant—is adequate to protect the Fourth Amendment interests of persons not named in the warrant, when their homes are searched without their consent and in the absence of exigent circumstances.
10
The purpose of a warrant is to allow a neutral judicial officer to assess whether the police have probable cause to make an arrest or conduct a search. As we have often explained, the placement of this checkpoint between the Government and the citizen implicitly acknowledges that an "officer engaged in the often competitive enterprise of ferreting out crime," Johnson v. United States, supra, 333 U.S. at 14, 68 S.Ct., at 369, may lack sufficient objectivity to weigh correctly the strength of the evidence supporting the contemplated action against the individual's interests in protecting his own liberty and the privacy of his home. Coolidge v. New Hampshire, supra, 403 U.S., at 449-451, 91 S.Ct., at 2029-2030; McDonald v. United States, 335 U.S. 451, 455-456, 69 S.Ct. 191, 193, 93 L.Ed. 153 (1948). However, while an arrest warrant and a search warrant both serve to subject the probable-cause determination of the police to judicial review, the interests protected by the two warrants differ. An arrest warrant is issued by a magistrate upon a showing that probable cause exists to believe that the subject of the warrant has committed an offense and thus the warrant primarily serves to protect an individual from an unreasonable seizure. A search warrant, in contrast is issued upon a showing of probable cause to believe that the legitimate object of a search is located in a particular place, and therefore safeguards an individual's interest in the privacy of his home and possessions against the unjustified intrusion of the police.
11
Thus, whether the arrest warrant issued in this case adequately safeguarded the interests protected by the Fourth Amendment depends upon what the warrant authorized the agents to do. To be sure, the warrant embodied a judicial finding that there was probable cause to believe the Ricky Lyons had committed a felony, and the warrant therefore authorized the officers to seize Lyons. However, the agents sought to do more than use the warrant to arrest Lyons in a public place or in his home; instead, they relied on the warrant as legal authority to enter the home of a third person based on their belief that Ricky Lyons might be a guest there. Regardless of how reasonable this belief might have been, it was never subjected to the detached scrutiny of a judicial officer. Thus, while the warrant in this case may have protected Lyons from an unreasonable seizure, it did absolutely nothing to protect petitioner's privacy interest in being free from an unreasonable invasion and search of his home. Instead, petitioner's only protection from an illegal entry and search was the agent's personal determination of probable cause. In the absence of exigent circumstances, we have consistently held that such judicially untested determinations are not reliable enough to justify an entry into a person's home to arrest him without a warrant, or a search of a home for objects in the absence of a search warrant. Payton v. New York, supra; Johnson v. United States, supra. We see no reason to depart from this settled course when the search of a home is for a person rather than an object.7
12
] A contrary conclusion—that the police, acting alone and in the absence of exigent circumstances, may decide when there is sufficient justification for searching the home of a third party for the subject of an arrest warrant—would create a significant potential for abuse. Armed solely with an arrest warrant for a single person, the police could search all the homes of that individual's friends and acquaintances. See, e. g., Lankford v. Gelston, 364 F.2d 197 (CA4 1966) (enjoining police practice under which 300 homes were searched pursuant to arrest warrants for two fugitives). Moreover, an arrest warrant may serve as the pretext for entering a home in which the police have a suspicion, but not probable cause to believe, that illegal activity is taking place. Cf. Chimel v. California, 395 U.S. 752, 767, 89 S.Ct. 2034, 2042, 23 L.Ed.2d 685 (1969). The Government recognizes the potential for such abuses,8 but contends that existing remedies—such as motions to suppress illegally procured evidence and damages actions for Fourth Amendment violations—provide adequate means of redress. We do not agree. As we observed on a previous occasion, "[t]he [Fourth] Amendment is designed to prevent, not simply to redress, unlawful police action." Chimel v. California, supra, at 766, n. 12, 89 S.Ct., at 2042, n. 12. Indeed, if suppression motions and damages actions were sufficient to implement the Fourth Amendment's prohibition against unreasonable searches and seizures, there would be no need for the constitutional requirement that in the absence of exigent circumstances a warrant must be obtained for a home arrest or a search of a home for objects. We have instead concluded that in such cases the participation of a detached magistrate in the probable-cause determination is an essential element of a reasonable search or seizure, and we believe that the same conclusion should apply here.9
13
In sum, two distinct interests were implicated by the search at issue here—Ricky Lyons' interest in being free from an unreasonable seizure and petitioner's interest in being free from an unreasonable search of his home. Because the arrest warrant for Lyons addressed only the former interest, the search of petitioner's home was no more reasonable from petitioner's perspective than it would have been if conducted in the absence of any warrant. Since warrantless searches of a home are impermissible absent consent or exigent circumstances, we conclude that the instant search violated the Fourth Amendment.
IV
14
The Government concedes that this view is "apparently logical," that it furthers the general policies underlying the Fourth Amendment, and that it "has the virtue of producing symmetry between the law of entry to conduct a search for things to be seized and the law of entry to conduct a search for persons to be seized." Brief for United States 36. Yet we are informed that this conclusion is "not without its flaws" in that it is contrary to common-law precedent and creates some practical problems of law enforcement. We treat these contentions in turn.
15
* The common law may, within limits,10 be instructive in determining what sorts of searches the Framers of the Fourth Amendment regarded as reasonable. See, e. g., Payton v. New York, 445 U.S., at 591, 100 S.Ct., at 1382. The Government contends that at common law an officer could forcibly enter the home of a third party to execute an arrest warrant. To be sure, several commentators do suggest that a constable could "break open doors" to effect such an arrest. See 1 J. Chitty, Criminal Law *57 (Chitty); M. Foster, Crown Law 320 (1762) (Foster); 2 M. Hale, Pleas of the Crown 116-117 (1st Am. ed. 1847) (Hale). But see 4 E. Coke, Institutes *177. As support for this proposition, these commentators all rely on a single decision, Semayne's Case, 5 Co.Rep. 91a, 92b-93a, 77 Eng.Rep. 194, 198 (K.B.1603).11 See 1 Chitty *57; Foster 320; 2 Hale 116. Although that case involved only the authority of a sheriff to effect civil service on a person within his own home, the court noted in dictum that a person could not "escape the ordinary process of law" by seeking refuge in the home of a third party. 5 Co.Rep., at 93a, 77 Eng.Rep., at 198. However, the language of the decision, while not free from ambiguity, suggests that forcible entry into a third party's house was permissible only when the person to be arrested was pursued to the house. The decision refers to a person who "flies" to another's home, ibid., and the annotation notes that "in order to justify the breaking of the outer door; after denial on request to take a person . . . in the house of a stranger, it must be understood . . . that the person upon a pursuit taketh refuge in the house of another." Id., at 93a, n. (I), 77 Eng.Rep., at 198, n. (I) (emphasis in original). The common-law commentators appear to have adopted this limitation. See 1 Chitty *57 (sheriff may enter third parties' home "if the offender fly to it for refuge"); Foster 320 ("For if a Stranger whose ordinary Residence is elsewhere, upon a Pursuit taketh Refuge in the House of another, this is not his Castle, He cannot claim the Benefit of Sanctuary in it"); 2 Hale 116, n. 20 (forcible entry permissible "only upon strong necessity"). We have long recognized that such "hot pursuit" cases fall within the exigent-circumstances exception to the warrant requirement, see Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), and therefore are distinguishable from the routine search situation presented here.
16
More important, the general question addressed by the common-law commentators was very different from the issue presented by this case. The authorities on which the Government relies were concerned with whether the subject of the arrest warrant could claim sanctuary from arrest by hiding in the home of a third party. See 1 Chitty *57; Foster 320; 2 Hale 116-117. Thus, in Semayne's Case it was observed:
17
"[T]he house of any one is not a castle or privilege but for himself, and shall not extend to protect any person who flies to his house, or the goods of any other which are brought and conveyed into his house, to prevent a lawful execution, and to escape the ordinary process of law; for the privilege of his house extends only to him and his family, and to his own proper goods." 5 Co.Rep., at 93a, 77 Eng.Rep., at 128.
18
The common law thus recognized, as have our recent decisions, that rights such as those conferred by the Fourth Amendment are personal in nature, and cannot bestow vicarious protection on those who do not have a reasonable expectation of privacy in the place to be searched. See United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). The issue here, however, is not whether the subject of an arrest warrant can object to the absence of a search warrant when he is apprehended in another person's home, but rather whether the residents of that home can complain of the search. Because the authorities relied on by the Government focus on the former question without addressing the latter, we find their usefulness limited. Indeed, if anything, the little guidance that can be gleaned from common-law authorities undercuts the Government's position. The language of Semayne's Case quoted above, for example, suggests that although the subject of an arrest warrant could not find sanctuary in the home of the third party, the home remained a "castle or privilege" for its residents. Similarly, several commentators suggested that a search warrant, rather than an arrest warrant, was necessary to fully insulate a constable from an action for trespass brought by a party whose home was searched. See, e. g., 1 Chitty *57; 2 Hale 116-117, 151.
19
While the common law thus sheds relatively little light on the narrow question before us, the history of the Fourth Amendment strongly suggests that its Framers would not have sanctioned the instant search. The Fourth Amendment was intended partly to protect against the abuses of the general warrants that had occurred in England and of the writs of assistance used in the Colonies. See Payton v. New York, 445 U.S., at 608-609, 100 S.Ct., at 1391-1392 (WHITE, J., dissenting); Boyd v. United States, 116 U.S. 616, 624-629, 6 S.Ct. 524, 529-532, 29 L.Ed. 746 (1886); N. Lasson, The History and Development of the Fourth Amendment to the United States Constitution 13-78 (1937). The general warrant specified only an offense—typically seditious libel—and left to the discretion of the executing officials the decision as to which persons should be arrested and which places should be searched. Similarly, the writs of assistance used in the Colonies noted only the object of the search—any uncustomed goods—and thus left customs officials completely free to search any place where they believed such goods might be. The central objectionable feature of both warrants was that they provided no judicial check on the determination of the executing officials that the evidence available justified an intrusion into any particular home. Stanford v. Texas, 379 U.S. 476, 481-485, 85 S.Ct. 506, 509-512, 13 L.Ed.2d 431 (1965). An arrest warrant, to the extent that it is invoked as authority to enter the homes of third parties, suffers from the same infirmity.12 Like a writ of assistance, it specifies only the object of a search—in this case, Ricky Lyons—and leaves to the unfettered discretion of the police the decision as to which particular homes should be searched. We do not believe that the Framers of the Fourth Amendment would have condoned such a result.
B
20
The Government also suggests that practical problems might arise if law enforcement officers are required to obtain a search warrant before entering the home of a third party to make an arrest.13 The basis of this concern is that persons, as opposed to objects, are inherently mobile, and thus officers seeking to effect an arrest may be forced to return to the magistrate several times as the subject of the arrest warrant moves from place to place. We are convinced, however, that a search warrant requirement will not significantly impede effective law enforcement efforts.
21
First, the situations in which a search warrant will be necessary are few. As noted in Payton v. New York, supra, at 602-603, 100 S.Ct., at 1388-1389, an arrest warrant alone will suffice to enter a suspect's own residence to effect his arrest. Furthermore, if probable cause exists, no warrant is required to apprehend a suspected felon in a public place. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). Thus, the subject of an arrest warrant can be readily seized before entering or after leaving the home of a third party.14 Finally, the exigent-circumstances doctrine significantly limits the situations in which a search warrant would be needed. For example, a warrantless entry of a home would be justified if the police were in "hot pursuit" of a fugitive. See United States v. Santana, 427 U.S. 38, 42-43, 96 S.Ct. 2406, 2409-2410, 49 L.Ed.2d 300 (1976); Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). Thus, to the extent that searches for persons pose special problems, we believe that the exigent-circumstances doctrine is adequate to accommodate legitimate law enforcement needs.
22
Moreover, in those situations in which a search warrant is necessary, the inconvenience incurred by the police is simply not that significant. First, if the police know of the location of the felon when they obtain an arrest warrant, the additional burden of obtaining a search warrant at the same time is miniscule. The inconvenience of obtaining such a warrant does not increase significantly when an outstanding arrest warrant already exists. In this case, for example, Agent Goodowens knew the address of the house to be searched two days in advance, and planned the raid from the federal courthouse in Atlanta where, we are informed, three full-time magistrates were on duty. In routine search cases such as this, the short time required to obtain a search warrant from a magistrate will seldom hinder efforts to apprehend a felon. Finally, if a magistrate is not nearby, a telephonic search warrant can usually be obtained. See Fed.Rule Crim.Proc. 41(c)(1), (2).
23
Whatever practical problems remain, however, cannot outweigh the constitutional interests at stake. Any warrant requirement impedes to some extent the vigor with which the Government can seek to enforce its laws, yet the Fourth Amendment recognizes that this restraint is necessary in some cases to protect against unreasonable searches and seizures. We conclude that this is such a case. The additional burden imposed on the police by a warrant requirement is minimal. In contrast, the right protected—that of presumptively innocent people to be secure in their homes from unjustified, forcible intrusions by the Government—is weighty. Thus, in order to render the instant search reasonable under the Fourth Amendment, a search warrant was required.
24
Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded to that court for further proceedings consistent with this opinion.
25
So ordered.
26
THE CHIEF JUSTICE concurs in the judgment.
27
Justice REHNQUIST, with whom Justice WHITE joins, dissenting.
28
The Court's opinion reversing petitioner's conviction proceeds in a pristinely simple manner: Steagald had a Fourth Amendment privacy interest in the dwelling entered by the police, and even though the police entered the premises for the sole purpose of executing a valid arrest warrant for Lyons, a fugitive from justice, whom they had probable cause to believe was within, the arrest warrant was not sufficient absent exigent circumstances to justify invading Steagald's privacy interest in the dwelling. Petitioner Steagald's privacy interest is different from Lyons' interest in being free from an unreasonable seizure, according to the Court, and the arrest warrant only validated the invasion of the latter. In the words of the Court:
29
"[T]he search of petitioner's home was no more reasonable from petitioner's perspective than it would have been if conducted in the absence of any warrant. Since warrantless searches of a home are impermissible absent consent or exigent circumstances, we conclude that the instant search violated the Fourth Amendment." Ante, at 216.
30
This "reasoning" not only assumes the answer to the question presented—whether the search of petitioner's dwelling could be undertaken without a search warrant—but also conveniently ignores the critical fact in this case, the existence of an arrest warrant for a fugitive believed on the basis of probable cause to be in the dwelling. The Court assumes that because the arrest warrant did not specifically address petitioner's privacy interest it is of no further relevance to the case. Incidental infringements of distinct Fourth Amendment interests may, however, be reasonable when they occur in the course of executing a valid warrant addressed to other interests. In Dalia v. United States, 441 U.S. 238, 99 S.Ct. 1682, 60 L.Ed.2d 177 (1979), the Court rejected the argument that a separate search warrant was required before police could enter a business office to install an eavesdropping device when a warrant authorizing the eavesdropping itself had already been obtained. As the Court put it: "This view of the Warrant Clause parses too finely the interests protected by the Fourth Amendment. Often in executing a warrant the police may find it necessary to interfere with privacy rights not explicitly considered by the judge who issued the warrant." Id., at 257, 99 S.Ct., at 1693 (emphasis supplied). In Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), the Court rejected the suggestion that a separate search warrant was required before police could execute an arrest warrant by entering the home of the subject of the warrant. Although the subject of the warrant had a Fourth Amendment interest in the privacy of his dwelling quite distinct from the interest in being free from unreasonable seizures addressed by the arrest warrant, the Court concluded that it was "constitutionally reasonable to require him to open his doors to the officers of the law." Id., at 602-603, 100 S.Ct., at 1388-1389.
31
This case, therefore, cannot be resolved by the simple Aristotelian syllogism which the Court employs. Concluding as it does that the arrest warrant did not address the privacy interest affected by the search by no means ends the matter; it simply presents the issue for decision. Resolution of that issue depends upon a balancing of the "need to search against the invasion which the search entails." Camara v. Municipal Court of San Francisco, 387 U.S. 523, 537, 87 S.Ct. 1727, 1735, 18 L.Ed.2d 930 (1967). Here, as in all Fourth Amendment cases, "reasonableness is still the ultimate standard." Id., at 539, 87 S.Ct., at 1736. See Wyman v. James, 400 U.S. 309, 318, 91 S.Ct. 381, 386, 27 L.Ed.2d 408 (1971); Marshall v. Barlow's, Inc., 436 U.S. 307, 315-316, 98 S.Ct. 1816, 1822, 56 L.Ed.2d 305 (1978). In determining the reasonableness of dispensing with the requirement of a separate search warrant in this case, I believe that the existence of a valid arrest warrant is highly relevant.
32
The government's interests in the warrantless entry of a third-party dwelling to execute an arrest warrant are compelling. The basic problem confronting police in such situations is the inherent mobility of the fugitive. By definition, the police have probable cause to believe that the fugitive is in a dwelling which is not his home. He may stay there for a week, a day, or 10 minutes. Fugitives from justice tend to be mobile, and police officers will generally have no way of knowing whether the subject of an arrest warrant will be at the dwelling when they return from seeking a search warrant. See United States v. McKinney, 379 F.2d 259, 263 (CA6 1967); State v. Jordan, 288 Or. 391, 400-401, 605 P.2d 646, 651 (1980) (en banc). Imposition of a search warrant requirement in such circumstances will frustrate the compelling interests of the government and indeed the public in the apprehension of those subject to outstanding arrest warrants.
33
The Court's responses to these very real concerns are singularly unpersuasive. It first downplays them by stating that "the situations in which a search warrant will be necessary are few," ante, at 221, because no search warrant is necessary to arrest a suspect at his home and, if the suspect is at another's home, the police need only wait until he leaves, since no search warrant is needed to arrest him in a public place. Ibid. These beguilingly simply answers to a serious law enforcement problem simply will not wash. Criminals who know or suspect they are subject to arrest warrants would not be likely to return to their homes, and while "[t]he police could reduce the likelihood of escape by staking out all possible exits . . . the costs of such a stakeout seems excessive in an era of rising crime and scarce police resources." Payton v. New York, supra, at 619, 100 S.Ct., at 1397 (WHITE, J., dissenting). The Court's ivory tower misconception of the realities of the apprehension of fugitives from justice reaches its apogee when it states: "In routine search cases such as this, the short time required to obtain a search warrant from a magistrate will seldom hinder efforts to apprehend a felon." Ante, at 222. The cases we are considering are not "routine search cases." They are cases of attempted arrest, pursuant to a warrant, when the object of the arrest may flee at any time including the "short time" during which the police are endeavoring to obtain a search warrant.
34
At the same time the interference with the Fourth Amendment privacy interests of those whose homes are entered to apprehend the felon is not nearly as significant as suggested by the Court. The arrest warrant serves some of the functions a separate search warrant would. It assures the occupants that the police officer is present on official business. The arrest warrant also limits the scope of the search, specifying what the police may search for i. e., the subject of the arrest warrant. No general search is permitted, but only a search of those areas in which the object of the search might hide. See Fisher v. Volz, 496 F.2d 333, 343 (CA3 1974); State v. Jordan, supra, at 400-401, 605 P.2d, at 651; United States v. Cravero, 545 F.2d 406, 421, nn. 1, 2 (CA5 1976), cert. denied, 429 U.S. 1100, 97 S.Ct. 1123, 51 L.Ed.2d 549 and 430 U.S. 983, 97 S.Ct. 1679, 52 L.Ed.2d 377 (1977). Indeed there may be no intrusion on the occupant's privacy at all, since if present the suspect will have the opportunity to voluntarily surrender at the door. Even if the suspect does not surrender but secretes himself within the house, the occupant can limit the search by pointing him out to the police. It is important to remember that the contraband discovered during the entry and search for Lyons was in plain view, and was discovered during a "sweep search" for Lyons, not a probing of drawers or cabinets for contraband. United States v. Gaultney, 606 F.2d 540, 544 (1979).
35
Because the burden on law enforcement officers to obtain a separate search warrant before entering the dwelling of a third party to execute a concededly valid arrest warrant is great, and carries with it a high possibility that the fugitive named in the arrest warrant will escape apprehension, I would conclude that the application of the traditional "reasonableness" standard of the Fourth Amendment does not require a separate search warrant in a case such as this.
36
This conclusion is supported by the common law as it existed at the time of the framing of the Fourth Amendment, which incorporated the standard of "reasonableness." As the Court noted last Term in Payton : "An examination of the common-law understanding of an officer's authority to arrest sheds light on the obviously relevant, if not entirely dispositive, consideration of what the Framers of the Amendment might have thought to be reasonable." 445 U.S., at 591, 100 S.Ct., at 1382-1383; see also id., at 604, 100 S.Ct., at 1389 (WHITE, J., dissenting). The duty of the populace to aid in the apprehension of felons was well established at common law, see Roberts v. United States, 445 U.S. 552, 557, 100 S.Ct. 1358, 1362-1363, 63 L.Ed.2d 622 (1980), and in light of the overriding interest in apprehension, the common law permitted officers to enter the dwelling of third parties when executing an arrest warrant. Chitty wrote that "[t]he house of a third person, if the offender fly to it for refuge, is not privileged, but may be broken open after the usual demand; for it may even be so upon civil process." 1 J. Chitty, Criminal Law *57 (hereafter Chitty). Gabbett agreed: "Neither is the house of a third person, if the offender fly to it for refuge, privileged, but it may be broken open, after the usual demand; for it may be even so upon civil process." 2 J. Gabbett, Criminal Law 142 (1843) (hereafter Gabbett). Hale noted that an officer could forcibly enter the house of the subject of an arrest warrant, "[a]nd so much more may he break open the house of another person to take him, for so the sheriff may do upon a civil process." 2 M. Hale, Pleas of the Crown, 117 (1736) (hereafter Hale). See also M. Foster, Crown Law 320 (1762).1 A 17th-century work on constables noted:
37
"[I]t is the chief part of their office to represse fellony, and albeit it be a man's house he doth dwell in, which they doe suspect the fellon to be in, yet they may enter in there to search; and if the owner of the house, upon request, will not open his dores, it seems the officer may break open the dores upon him to come in to search." W. Sheppard, The Offices of Constables, ch. 8, § 2, no. 4 (c. 1650) (quoted in T. Taylor, Two Studies in Constitutional Interpretation 28-29 (1969)).
38
The leading authority, Semayne's Case, 5 Co.Rep. 91a, 93a, 77 Eng.Rep. 194, 198 (K.B.1603), recognized that: "[t]he house of any one is not a castle or privilege but for himself, and shall not extend to protect any person who flies to his house . . . to prevent a lawful execution, and to escape the ordinary process of law . . . and therefore in such cases after denial on request made, the sheriff may break the house." In Ratcliffe v. Burton, 3 Bos. & Pul. 223, 230, 127 Eng.Rep. 123, 126-127 (C.P.1802), Judge Heath ruled that before breaking doors, officers must announce their authority, because a contrary rule "must equally hold good in cases of process upon escape, where the party has taken refuge in the house of a stranger. Shall it be said that in such case the officer may break open the outer door of a stranger's house without declaring the authority under which he acts. . . .?" Thus no distinction was recognized between authority to enter the suspect's home and that of a stranger. See also Commonwealth v. Reynolds, 120 Mass. 190, 196-197 (1876); cf. State v. Brown, 5 Del. [Harrington] 505 (1854).2
39
The Court argues that the common-law authorities are not relevant because they do not consider the rights of third parties whose dwellings were entered but only the rights of the arrestee. Ante, at 218-219. This is not so. The authorities typically concern the right of the third party to resist the officer's attempted entry or the offense committed by the officer against the third party in entering. See, e. g., Commonwealth v. Reynolds, supra ; 1 Chitty *57-*58; 2 Hale 117; 1 Russell 519-521.
40
The basic error in the Court's treatment of the common law is its reliance on the adage that "a man's home is his castle." Though there is undoubtedly early case support for this in the common law, it cannot be accepted as an uncritical statement of black letter law which answers all questions in this area. William Pitt, when he was Prime Minister of England, used it with telling effect in a speech on the floor of the House of Commons; but parliamentary speaking ability and analytical legal ability ought not to be equated with one another. It is clear that the privilege of the home did not extend when the King was a party, i.e., when a warrant in a criminal case had been issued. See 1 Russell 520; 2 Gabbett 141; Burdett v. Abbott, 14 East. 1, 79, 104 Eng.Rep. 501, 531 (K.B.1811); Commonwealth v. Reynolds, supra, at 196. That a man's home may be his castle in civil cases, but not in criminal cases, was recognized as far back as the Year Books. See Y.B. 13 Edw. IV, f. 9a (quoted in Burdett, supra, at 79, 104 Eng.Rep., at 531). The suggestion in the Court's opinion, ante, at 219, that "[t]he language of Semayne's Case . . . . suggests that although the subject of an arrest warrant could not find sanctuary in the home of the third party, the home remained a 'castle or privilege' for its residents," is thus completely unfounded in the present context.
41
An officer could break into one's own home to execute an arrest warrant for the owner, and "so much more may he break open the house of another person to take him," 2 Hale 117. Entry into the house of a third party to effect arrest was considered to follow a fortiori from the accepted entry into the home of the subject of the arrest warrant himself. This was because those in the home of a third party had no protection against civil process, let alone criminal process. See 1 Chitty *57; 2 Gabbett 142; 2 Hale 117. See generally Wilgus, Arrest Without a Warrant, 22 Mich.L.Rev. 798, 800-801 (1924). At common law the Sovereign's key—criminal process—unlocked all doors, whether to apprehend the owner or someone else.
42
While I cannot subscribe to the Court's decision today, I will not falsely cry "wolf" in this dissent. The decision rests on a very special set of facts, and with a change in one or more of them it is clear that no separate search warrant would be required even under the reasoning of the Court.
43
On the one side Payton makes clear that an arrest warrant is all that is needed to enter the suspect's "home" to effect the arrest. 445 U.S., at 602-603, 100 S.Ct., at 1388-1389. If a suspect has been living in a particular dwelling for any significant period, say a few days, it can certainly be considered his "home" for Fourth Amendment purposes, even if the premises are owned by a third party and others are living there, and even if the suspect concurrently maintains a residence elsewhere as well. In such a case the police could enter the premises with only an arrest warrant. On the other side, the more fleeting a suspect's connection with the premises, such as when he is a mere visitor, the more likely that exigent circumstances will exist justifying immediate police action without departing to obtain a search warrant. The practical damage done to effective law enforcement by today's decision, without any basis in the Constitution, may well be minimal if courts carefully consider the various congeries of facts in the actual case before them.
44
The genuinely unfortunate aspect of today's ruling is not that fewer fugitives will be brought to book, or fewer criminals apprehended, though both of these consequences will undoubtedly occur; the greater misfortune is the increased uncertainty imposed on police officers in the field, committing magistrates, and trial judges, who must confront variations and permutations of this factual situation on a day-to-day basis. They will, in their various capacities, have to weigh the time during which a suspect for whom there is an outstanding arrest warrant has been in the building, whether the dwelling is the suspect's home, how long he has lived there, whether he is likely to leave immediately, and a number of related and equally imponderable questions. Certainty and repose, as Justice Holmes said, may not be the destiny of man, but one might have hoped for a higher degree of certainty in this one narrow but important area of the law than is offered by today's decision.
1
The court relied on a previous decision in the Circuit that held that "when an officer holds a valid arrest warrant and reasonably believes that its subject is within premises belonging to a third party, he need not obtain a search warrant to enter for the purpose of arresting the subject." United States v. Cravero, 545 F.2d 406, 421 (1976), cert. denied, 430 U.S. 983, 97 S.Ct. 1679, 52 L.Ed.2d 377 (1977). Circuit Judge Kravitch dissented on the ground that the information known to the agents was insufficient to establish a reasonable belief that Lyons could be found in the house to be searched. 606 F.2d, at 548. On the petition for rehearing, Judge Kravitch, again in dissent, contended that the majority's decision announced a "rule of questionable validity and wisdom" and represented a "disturbing erosion of the Fourth Amendment rights of third parties." United States v. Gaultney, 615 F.2d 642, 644 (1980).
2
Last Term we noted that this question remained unresolved. See Payton v. New York, 445 U.S. 573, 583, 100 S.Ct. 1371, 1378, 63 L.Ed.2d 639 (1980).
3
Three Circuits have held that in the absence of exigent circumstances a search warrant is required before law officers may enter the home of
a third party to execute an arrest warrant. See Government of Virgin Islands v. Gereau, 502 F.2d 914, 928 (CA3 1974), cert. denied 420 U.S. 909, 95 S.Ct. 829, 42 L.Ed.2d 839 (1975); Wallace v. King, 626 F.2d 1157, 1158-1159 (CA4 1980), cert. pending, No. 80-503; United States v. Prescott, 581 F.2d 1343, 1347-1350 (CA9 1978). Two Circuits have joined the Court of Appeals in this case in adopting the contrary view that a search warrant is not required in such situations if the police have an arrest warrant and reason to believe that the person to be arrested is within the home to be searched. See United States v. McKinney, 379 F.2d 259, 262-263 (CA6 1967); United States v. Harper, 550 F.2d 610, 612-614 (CA10), cert. denied, 434 U.S. 837, 98 S.Ct. 128, 54 L.Ed.2d 99 (1977). The Second Circuit has suggested in dictum that it subscribes to this latter view, see United States v. Manley, 632 F.2d 978, 983 (1980), while the Court of Appeals for the District of Columbia Circuit has recently indicated that it would require a search warrant in such cases. See United States v. Ford, 180 U.S.App.D.C. 1, 14, n. 45, 553 F.2d 146, 159, n. 45 (1977). Two other Courts of Appeals have left the issue open. See United States v. Adams, 621 F.2d 41, 44, n. 7 (CA1 1980); Rice v. Wolff, 513 F.2d 1280, 1291-1292, and n. 7 (CA8 1975), rev'd on other grounds sub nom. Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). The Seventh Circuit has not considered the question.
While the courts are in conflict, most modern commentators agree that a search warrant is necessary to fully protect the privacy interests of third parties when their home is searched for the subject of an arrest warrant. See 2 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment 374, 384-385 (1978); Rotenberg & Tanzer, Searching for the Person to Be Seized, 35 Ohio St.L.J. 56, 67-71 (1974); Groot, Arrests in Private Dwellings, 67 Va.L.Rev. 275 (1981); Note, The Neglected Fourth Amendment Problem in Arrest Entries, 23 Stan.L.Rev. 995, 997-999 (1971); Comment, Arresting a Suspect in a Third Party's Home: What is Reasonable?, 72 J.Crim.L. & C. 293 (1981). But see Mascolo, Arrest Warrants and Search Warrants: The Seizure of A Suspect in the Home of a Third Party, 54 Conn.Bar J. 299 (1980).
4
The Court of Appeals, in accepting this contention, cited the Government's own evidence that several checks and papers bearing petitioner's name were found in the house and that "Steagald, when taken into custody, was wearing only slacks and a long-sleeve shirt, clothing inconsistent with the coldness of the January afternoon, and that once taken inside the . . . house, told a DEA agent that he was cold and requested that she get a sweater or coat for him from the kitchen area." 606 F.2d, at 546-547.
5
The Government asserts that it was unable to raise this issue in the courts below because both courts had acted before this Court decided United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). We do not find this justification to be compelling. Under the "automatic standing" rule of Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), any person charged with a possessory offense could challenge the search in which the incriminating evidence was obtained. Salvucci overruled Jones and instead limited such Fourth Amendment claims to those persons who had a reasonable expectation of privacy in the area or object of the search. Although Salvucci thus altered Fourth Amendment jurisprudence to some extent, the rationale of that decision was in large part simply an extension of this Court's earlier reasoning in Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). The Rakas decision held that an illegal search violated the Fourth Amendment rights only of those persons who had a "legitimate expectation of privacy in the invaded place." Id., at 143, 99 S.Ct., at 430. While that decision did not directly address the "automatic standing" rule of Jones v. United States, it was clearly an ill omen for the continued vitality of that decision. Since Rakas was decided well before this case was briefed and argued in the Court of Appeals, the Government could easily have raised before that court the question of whether petitioner's Fourth Amendment rights were even implicated by the search at issue here. Indeed, the Government in Salvucci clearly recognized the significance of Rakas, for in that case, despite the contrary authority of Jones v. United States, it argued from the outset that the defendant lacked a sufficient expectation of privacy to challenge the legality of the search under the Fourth Amendment. We are given no explanation why the Government failed to regard Rakas as of equal significance to this case. In any event, Salvucci, was decided before certiorari was sought in this case, but rather than oppose certiorari on the ground that petitioner lacked a legitimate expectation of privacy in the searched home, the Government made explicit concessions to the contrary.
6
Initially, we assume without deciding that the information relayed to Agent Goodowens concerning the whereabouts of Ricky Lyons would have been sufficient to establish probable cause to believe that Lyons was at the house searched by the agents.
7
Indeed, the plain wording of the Fourth Amendment admits of no exemption from the warrant requirement when the search of a home is for a person rather than for a thing. As previously noted, absent exigent circumstances or consent, an entry into a private dwelling to conduct a search or effect an arrest is unreasonable without a warrant. The second clause of the Fourth Amendment, which governs the issuance of such warrants, provides that "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." This language plainly suggests that the same sort of judicial determination must be made when the search of a person's home is for another person as is necessary when the search is for an object. Specifically, absent exigent circumstances the magistrate, rather than the police officer, must make the decision that probable cause exists to believe that the person or object to be seized is within a particular place.
In Payton, of course, we recognized that an arrest warrant alone was sufficient to authorize the entry into a person's home to effect his arrest. We reasoned:
"If there is sufficient evidence of a citizen's participation in a felony to persuade a judicial officer that his arrest is justified, it is constitutionally reasonable to require him to open his doors to the officers of the law. Thus, for Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within." 445 U.S., at 602-603, 100 S.Ct., at 1388-1389.
Because an arrest warrant authorizes the police to deprive a person of his liberty, it necessarily also authorizes a limited invasion of that person's privacy interest when it is necessary to arrest him in his home. This analysis, however, is plainly inapplicable when the police seek to use an arrest warrant as legal authority to enter the home of a third party to conduct a search. Such a warrant embodies no judicial determination whatsoever regarding the person whose home is to be searched. Because it does not authorize the police to deprive the third person of his liberty, it cannot embody any derivative authority to deprive this person of his interest in the privacy of his home. Such a deprivation must instead be based on an independent showing that a legitimate object of a search is located in the third party's home. We have consistently held, however, that such a determination is the province of the magistrate, and not that of the police officer.
8
The Government concedes that "an arrest warrant may be thought to have some of the undesirable attributes of a general warrant if it authorizes entry into third party premises." Brief for United States 42. Similarly, the Government agrees that "the potential for abuse is much less if the implicit entry authorization of an arrest warrant is confined to the suspect's own residence and is not held to make the police free to search for the suspect in anyone else's house without obtaining a particularized judicial determination that the suspect is present." Ibid.
9
Moreover, the remedies suggested by the Government are not without their pitfalls and limitations. For example, absent a search warrant requirement, a person seeking to recover civil damages for the unjustified search of his home may possibly be thwarted if a good-faith defense to such unlawful conduct is recognized. See, e. g., Wallace v. King, 626 F.2d, at 1161.
10
The significance accorded to such authority, however, must be kept in perspective, for our decisions in this area have not "simply frozen into constitutional law those enforcement practices that existed at the time of the Fourth Amendment's passage." Payton v. New York, 445 U.S., at 591, n. 33, 100 S.Ct., at 1382-1383, n. 33. The common-law rules governing searches and arrests evolved in a society far simpler than ours is today. Crime has changed, as have the means of law enforcement, and it would therefore be naive to assume that those actions a constable could take in an English or American village three centuries ago should necessarily govern what we, as a society, now regard as proper. Cf. Katz v. United States, 389 U.S. 347, 352-353, 88 S.Ct. 507, 511-512, 19 L.Ed.2d 576 (1967). Instead, the Amendment's prohibition against "unreasonable searches and seizures" must be interpreted "in light of contemporary norms and conditions." Payton v. New York, supra, at 591, n. 33, 100 S.Ct., at 1382-1383, n. 33.
11
The three other decisions cited by the Government do not address the issue raised here. Johnson v. Leigh, 6 Taunt. 246, 248, 128 Eng.Rep. 1029, 1029-1030 (C.P.1815), dealt with the authority of a constable to enter the home of a third person to make an arrest when the "outer door" was open. Under the common law, "a privilege attaches to the outer door of a dwelling, because . . . it is the owner's castle." Hutchison v. Birch, 4 Taunt. 619, 625, 128 Eng.Rep. 473, 476 (C.P.1812). Thus, an open outer door was apparently regarded as the equivalent of a consent of the occupant for the constable to enter the home and conduct a search. The other two decisions cited by the Government, Sheers v. Brooks, 2 Bl.H. 120, 122, 126 Eng.Rep. 463, 464 (C.P.1792), and Kelsy v. Wright, 1 Root 83 (Conn.1783), dealt only with the authority of the constable to enter the home of the person to be arrested.
12
The Government recognizes this problem. See n. 8, supra.
13
A number of Circuits already require a search warrant for entries of this sort, see n. 3, supra, and there is no indication in the record that law enforcement efforts in these jurisdictions have suffered as a result. Thus, we are inclined to view the Government's argument on this point with considerable skepticism. Cf. Payton v. New York, 445 U.S., at 602, 100 S.Ct., at 1388.
Moreover, we are informed by the Government that "it is the present policy of the Drug Enforcement Administration, whose agents conducted the search in the present case, to secure a search warrant prior to making an arrest entry into third party premises, in the absence of exigent circumstances or consent." Brief in Opposition 9, n. 7.
14
Indeed, the "inherent mobility" of persons noted by the Government suggests that in most situations the police may avoid altogether the need to obtain a search warrant simply by waiting for a suspect to leave the third person's home before attempting to arrest that suspect.
1
The Court cites Coke as a contrary authority, ante, at 217 but Coke's disagreement with the rule that the constable could "break open doors" extended only to requiring that the suspect sought first be indicted. He wrote that "if the party suspected be indicted, then the sherif by force of the kings writ may demand the party indicted to be delivered; and that not done, he may break open the house, &c. and apprehend the felon. . . ." 4 E. Coke, Institutes *177. Lyons had been indicted, United States v. Gaultney, 606 F.2d 540, 543 (1979).
2
The Court strives to minimize the significance of the common-law rule by suggesting that it only applied in cases of "hot pursuit," ante, at 218. Even if the authorities did impose some "pursuit" requirement, and by no means all did, see, e. g., 2 Hale 117; 1 W. Russell, Crimes and Misdemeanors 521 (2d ed. 1826) (hereafter Russell), the "pursuit" referred to was apparently "the old Common Law mode of pursuing," by the "hue and cry." 1 Chitty *26; 4 W. Blackstone, Commentaries 293 (J. Wendell ed. 1847); 2 Hale 98. See Semayne's Case, 5 Co.Rep. 91a, 91b-93a, 77 Eng.Rep. 194, 196 (K.B.1603) ("J. beats R. so as he is in danger of death, J. flies, and thereupon hue and cry is made, J. retreats into the house of T. they who pursue him, if the house be kept and defended with force (which proves that first request ought to be made) may lawfully break the house of T. for it is at the K.'s suit"). The "hue and cry," however, was not the same as "hot pursuit" by officers of the law, and the situations in which it might be invoked—for example, simply to apprehend a person suspected of a felony—would not be considered exigent circumstances. See 1 Chitty, *27-* 29.
| 01
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451 U.S. 182
101 S.Ct. 1629
68 L.Ed.2d 22
Humberto ROSALES-LOPEZ, Petitioner,v.UNITED STATES.
No. 79-6624.
Argued Jan. 12, 1981.
Decided April 21, 1981.
Syllabus
Petitioner, who is of Mexican descent, was tried in Federal District Court for his participation in a plan by which Mexican aliens were smuggled into the country. Another participant in the plan, one Bowling, was apparently a Caucasian with whose daughter petitioner had been living. Prior to his trial, petitioner requested that the judge, in his voir dire examination of prospective jurors, ask a question as to possible prejudice toward Mexicans. The judge refused to ask such question, but did ask questions concerning possible prejudice against aliens. Petitioner was subsequently convicted, and the Court of Appeals affirmed, rejecting petitioner's challenge of the trial judge's refusal to question the jurors about possible racial or ethnic bias.
Held : The judgment is affirmed. Pp. 188-194; 194-195.
9 Cir., 617 F.2d 1349, affirmed.
Justice WHITE, joined by Justice STEWART, Justice BLACKMUN, and Justice POWELL, concluded that there was no reversible error in the voir dire afforded petitioner. Pp. 188-194.
(a) Because the obligation to impanel an impartial jury lies in the first instance with the trial judge, and because he must rely largely on his immediate perceptions, federal judges have been accorded ample discretion in determining how best to conduct the voir dire. "Special circumstances" under which the Constitution requires questioning prospective jurors about racial or ethnic bias exist only when racial issues are inextricably bound up with the conduct of the trial and there are substantial indications of the likelihood of racial or ethnic prejudice affecting the jurors in the particular case. See Ristaino v. Ross, 424 U.S. 589, 96 S.Ct. 1017, 47 L.Ed.2d 258; Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46. Under this Court's supervisory power over the federal courts, failure to honor a defendant's request to inquire into racial or ethnic prejudice, where such an inquiry is not constitutionally mandated, is reversible error only where the circumstances of the case indicate a "reasonable possibility" that such prejudice might influence the jury. Federal trial courts must make such an inquiry when requested by a defendant accused of a violent crime and where the defendant and the victim are members of different racial or ethnic groups. See Ristaino, supra; Aldridge v. United States, 283 U.S. 308, 51 S.Ct. 470, 75 L.Ed. 1054. Pp. 188-192.
(b) In this case, there were no "special circumstances" of constitutional dimension requiring an inquiry as to racial or ethnic bias, since the issues in the trial did not involve allegations of racial or ethnic prejudice. And the circumstances of the case did not reveal a violent criminal act with a victim of a different racial or ethnic group from that of the defendant. Nor did the external circumstances of the case indicate a "reasonable possibility" that racial or ethnic prejudice would influence the jury's evaluation of the evidence. Pp. 192-194.
Justice REHNQUIST, joined by Chief Justice BURGER, concurring in the result, concluded that the decision as to inquiry on voir dire as to racial or ethnic prejudice rested primarily with the trial court, subject to case-by-case review by the appellate courts, even in the case of "violent crimes" where the defendant and victim were members of different racial or ethnic groups. Pp. 194-195.
John J. Cleary, San Diego, Cal., for petitioner.
George W. Jones, Los Angeles, Cal., for respondent, pro hac vice, by special leave of Court.
Justice WHITE announced the judgment of the Court and delivered an opinion, in which Justice STEWART, Justice BLACKMUN, and Justice POWELL joined.
1
The question here is whether it was reversible error for a federal trial court in a criminal case to reject the defendant's request that the court's voir dire of prospective jurors inquire further into the possibility of racial or ethnic prejudice against the defendant.
2
* Petitioner is of Mexican descent. In February 1979, he was tried before a jury in the United States District Court for the Southern District of California for his alleged participation in a plan by which three Mexican aliens were illegally brought into the country.1
3
The Government's evidence at trial described the following events. On the night of December 10, 1978, three aliens were led across the Mexican-American border and taken to a car, previously left for them on the American side. They drove to Imperial Beach, Cal., a town about eight miles inside the border. Early in the morning of December 11, they reached the home of Virginia Hendricks Bowling, where they were admitted into the garage of the house by petitioner. Bowling was an American citizen, apparently Caucasian, living in Imperial Beach with her 19-year-old daughter. Petitioner had been living with Bowling's daughter in her mother's house since July 1978.
4
Later in the morning, petitioner hid the three aliens and their guide in the trunk of a green Oldsmobile. Bowling drove the Oldsmobile north, through the San Clemente check-point, while petitioner followed in a grey Ford. After passing through the checkpoint, Bowling and petitioner exchanged cars. Petitioner proceeded to Los Angeles in the Oldsmobile and Bowling returned to Imperial Beach in the Ford. In Los Angeles, petitioner went to an apartment which agents of the Immigration and Naturalization Service had had under surveillance for several weeks because they suspected that it was a drop site for illegal aliens. Upon arrival, the aliens were let out of the trunk and told to go into the apartment by petitioner. Shortly thereafter, petitioner was arrested when he left the apartment with one of the aliens.
5
At trial, the INS agents, Bowling, the three illegal aliens, and David Falcon-Zavala, another named principal in the smuggling arrangement who was arrested with petitioner, testified for the Government. Petitioner did not testify; his defense was principally to challenge the credibility of the Government witnesses. The jury convicted him of all the charges and the Court of Appeals for the Ninth Circuit affirmed. 617 F.2d 1349 (1980).
6
Prior to trial, petitioner's counsel formally requested that he be allowed personally to voir dire the prospective members of the jury. At the same time, he filed a list of 26 questions that he requested the trial judge to ask, if the court denied his first motion. Among the questions submitted was one directed toward possible prejudice toward Mexicans:
7
"Would you consider the race or Mexican descent of Humberto Rosales-Lopez in your evaluation of this case? How would it affect you?
8
As permitted by Rule 24 of the Federal Rules of Criminal Procedure and pursuant to the practice in the Southern District of California, the trial judge conducted the voir dire himself. He asked about half of the questions submitted by petitioner.2 Although he did not ask any question directed specifically to possible racial or ethnic prejudice, he did ask a question directed to attitudes toward the substantive charges involved: "Do any of you have any feelings about the alien problem at all?" He subsequently rephrased this: "Do any of you have any particular feelings one way or the other about aliens or could you sit as a fair and impartial juror if you are called upon to do so?" App. 17-18.3 The judge began the voir dire with the following general statement to the panel:
9
"In order that this defendant shall have a fair and impartial jury to try the charges against him, it is necessary that we address certain questions to the panel to make sure that there are no underlying prejudices, there are no underlying reasons why you can't sit as a fair and impartial juror if chosen to do so in this case." Id., at 14.
10
He ended his general questioning with the following:
11
"Does any reason occur to anyone of you why you could not sit in this case as a fair and impartial juror, any reason whatsoever?" Id., at 21.
12
Following the voir dire, defense counsel restated his request with respect to six of the submitted questions, including the one directed toward racial or ethnic prejudice.4 He argued at side bar that under Aldridge v. United States, 283 U.S. 308, 51 S.Ct. 470, 75 L.Ed. 1054 (1931), a federal court "must explore all racial antagonism against my client because he happens to be of Mexican descent." App. 25. The judge declined to ask any further questions of the jury panel. Peremptory challenges were then exercised and the jury was sworn.
13
Petitioner appealed, unsuccessfully challenging the refusal of the trial judge to question the jurors about possible racial or ethic bias.5 The Court of Appeals for the Ninth Circuit noted that there is
14
"[a] longstanding rule of criminal justice in the federal courts . . . that questions regarding possible racial prejudice should be put to the venire in prosecutions of minority defendants, at least where 'special circumstances' indicate that the defendant's race may be a factor in the trial." 617 F.2d, at 1354.
15
The court noted that "[t]he extent of the federal rule is unclear." Ibid. It concluded, however, that this case did not contain such "special circumstances."
16
The Courts of Appeals have adopted conflicting rules as to when the failure to ask such questions will constitute reversible error. Some Circuits have adopted a per se rule, requiring reversal whenever the trial judge fails to ask a question on racial or ethnic prejudice requested by a defendant who is a member of a minority group. See United States v. Bowles 574 F.2d 970 (CA8 1978); United States v. Robinson, 485 F.2d 1157 (CA3 1973); United States v. Carter, 440 F.2d 1132 (CA6 1971); United States v. Gore, 435 F.2d 1110 (CA4 1970); Fraiser v. United States, 267 F.2d 62 (CA1 1959). Other Circuits, including the Ninth, have rejected such a per se rule, holding that a trial judge is required to pose such a question only where there is some indication that the particular case is likely to have racial overtones or involve racial prejudice. See United States v. Polk, 550 F.2d 1265 (CA10 1977); United States v. Perez-Martinez 525 F.2d 365 (CA9 1975). In light of this diversity of views, we granted certiorari. 449 U.S. 819, 101 S.Ct. 71, 66 L.Ed.2d 21.
II
17
Voir dire plays a critical function in assuring the criminal defendant that his Sixth Amendment right to an impartial jury will be honored. Without an adequate voir dire the trial judge's responsibility to remove prospective jurors who will not be able impartially to follow the court's instructions and evaluate the evidence cannot be fulfilled. See Connors v. United States, 158 U.S. 408, 413, 15 S.Ct. 951, 953, 39 L.Ed. 1033 (1895). Similarly, lack of adequate voir dire impairs the defendant's right to exercise peremptory challenges where provided by statute or rule, as it is in the federal courts.6
18
Despite its importance, the adequacy of voir dire is not easily subject to appellate review. The trial judge's function at this point in the trial is not unlike that of the jurors later on in the trial. Both must reach conclusions as to impartiality and credibility by relying on their own evaluations of demeanor evidence and of responses to questions. See Ristaino v. Ross, 424 U.S. 589, 595, 96 S.Ct. 1017, 1020, 47 L.Ed.2d 258 (1976), quoting Rideau v. Louisiana, 373 U.S. 723, 733, 83 S.Ct. 1417, 1422, 10 L.Ed.2d 663 (1963) (Clark, J., dissenting). In neither instance can an appellate court easily second-guess the conclusions of the decision-maker who heard and observed the witnesses.
19
Because the obligation to impanel an impartial jury lies in the first instance with the trial judge, and because he must rely largely on his immediate perceptions, federal judges have been accorded ample discretion in determining how best to conduct the voir dire. In Aldridge v. United States, 283 U.S. 308, 51 S.Ct. 470, 75 L.Ed. 1054 (1931), the Court recognized the broad role of the trial court: "[T]he questions to the prospective jurors were put by the court, and the court had a broad discretion as to the questions to be asked." Id., at 310, 51 S.Ct., at 471. See also Ham v. South Carolina, 409 U.S. 524, 528, 93 S.Ct. 848, 851, 35 L.Ed.2d 46 (1973) (recognizing "the traditionally broad discretion accorded to the trial judge in conducting voir dire. . . ."). Furthermore, Rule 24(a), Federal Rules of Criminal Procedure, provides that the trial court may decide to conduct the voir dire itself or may allow the parties to conduct it. If the court conducts it, the parties may "supplement the examination by such further inquiry as [the court] deems proper"; alternatively, the court may limit participation to the submission of additional questions, which the court must ask only "as it deems proper."
20
There are, however, constitutional requirements with respect to questioning prospective jurors about racial or ethnic bias. The "special circumstances" under which the Constitution requires a question on racial prejudice were described in Ristaino v. Ross, supra, by contrasting the facts of that case with those in Ham v. South Carolina, supra, in which we held it reversible error for a state court to fail to ask such a question.
21
Ham involved a black defendant charged with a drug offense. His defense was that the law enforcement officers had "framed" him in retaliation for his active, and widely known, participation in civil rights activities. The critical factor present in Ham, but not present in Ristaino, was that racial issues were "inextricably bound up with the conduct of the trial," and the consequent need, under all the circumstances, specifically to inquire into possible racial prejudice in order to assure an impartial jury. Ristaino, supra, 424 U.S., at 596, 597, 96 S.Ct., at 1021. Although Ristaino involved an alleged criminal confrontation between a black assailant and a white victim, that fact pattern alone did not create a need of "constitutional dimensions" to question the jury concerning racial prejudice. 424 U.S., at 596, 597, 96 S.Ct., at 1021, 1022. There is no constitutional presumption of juror bias for or against members of any particular racial or ethnic groups. As Ristaino demonstrates, there is no per se constitutional rule in such circumstances requiring inquiry as to racial prejudice. Id., at 596, n. 8, 96 S.Ct., at 1021, n. 8. Only when there are more substantial indications of the likelihood of racial or ethnic prejudice affecting the jurors in a particular case does the trial court's denial of a defendant's request to examine the jurors' ability to deal impartially with this subject amount to an unconstitutional abuse of discretion.
22
Absent such circumstances, the Constitution leaves it to the trial court, and the judicial system within which that court operates, to determine the need for such questions. In the federal court system, we have indicated that under our supervisory authority over the federal courts, we would require that questions directed to the discovery of racial prejudice be asked in certain circumstances in which such an inquiry is not constitutionally mandated. Ristaino, supra, at 597, n. 9, 96 S.Ct., at 1021, n. 9.
23
Determination of an appropriate nonconstitutional standard for the federal courts does not depend upon a comparison of the concrete costs and benefits that its application is likely to entail. These are likely to be slight: some delay in the trial versus the occasional discovery of an unqualified juror who would not otherwise be discovered. There is, however, a more significant conflict at issue here—one involving the appearance of justice in the federal courts. On the one hand, requiring an inquiry in every case is likely to create the impression "that justice in a court of law may turn upon the pigmentation of skin [or] the accident of birth." Ristaino, supra, 424 U.S., at 596, n. 8, 96 S.Ct., at 1021, n. 8. Trial judges are understandably hesitant to introduce such a suggestion into their courtrooms. See Aldridge, supra, 283 U.S., at 310, 51 S.Ct., at 471; Ristaino, supra, 424 U.S., at 591, 96 S.Ct., at 1018. Balanced against this, however, is the criminal defendant's perception that avoiding the inquiry does not eliminate the problem, and that his trial is not the place in which to elevate appearance over reality.
24
We first confronted this conflict in Aldridge, supra, and what we said there remains true today:
25
"The argument is advanced on behalf of the Government that it would be detrimental to the administration of the law in the courts of the United States to allow questions to jurors as to racial or religious prejudices. We think that it would be far more injurious to permit it to be thought that persons entertaining a disqualifying prejudice were allowed to serve as jurors and that inquiries designed to elicit the fact of disqualification were barred. No surer way could be devised to bring the processes of justice into disrepute." 283 U.S., at 314-315, 51 S.Ct., at 473.
26
In our judgment, it is usually best to allow the defendant to resolve this conflict by making the determination of whether or not he would prefer to have the inquiry into racial or ethnic prejudice pursued.7 Failure to honor his request, however, will be reversible error only where the circumstances of the case indicate that there is a reasonable possibility that racial or ethnic prejudice might have influenced the jury.
27
In Ristaino, the Court indicated that under the circumstances of that case, a federal trial court would have been required to "propound appropriate questions designed to identify racial prejudice if requested by the defendant." 424 U.S., at 597, n. 9, 96 S.Ct., at 1022, n. 9. In Ristaino, the Court also made clear that the result reached in Aldridge, was based on this Court's supervisory power over the federal courts. 424 U.S., at 598, n. 10, 96 S.Ct., at 1022, n. 10. In Aldridge, which Ristaino embraced, the Court held that it was reversible error for a federal trial court to fail to inquire into racial prejudice in a case involving a black defendant accused of murdering a white policeman. The circumstances of both cases indicated that there was a "reasonable possibility" that racial prejudice would influence the jury.
28
Aldridge and Ristaino together, fairly imply that federal trial courts must make such an inquiry when requested by a defendant accused of a violent crime and where the defendant and the victim are members of different racial or ethnic groups. This supervisory rule is based upon and consistent with the "reasonable possibility standard" articulated above. It remains an unfortunate fact in our society that violent crimes perpetrated against members of other racial or ethnic groups often raise such a possibility. There may be other circumstances that suggest the need for such an inquiry, but the decision as to whether the total circumstances suggest a reasonable possibility that racial or ethnic prejudice will affect the jury remains primarily with the trial court, subject to case-by-case review by the appellate courts.
III
29
Evaluated against these standards, there was no reversible error in the voir dire afforded petitioner. At no point has petitioner argued that the matters at issue in his trial involved allegations of racial or ethnic prejudice: neither the Government's case nor his defense involved any such allegations. There were, then, no "special circumstances" of constitutional dimension in this case. Neither did the circumstances of the case reveal a violent criminal act with a victim of a different racial or ethnic group. In fact, petitioner was accused of a victimless crime: aiding members of his own ethnic group to gain illegal entry into the United States. Petitioner, therefore, falls within that category of cases in which the trial court must determine if the external circumstances of the case indicate a reasonable possibility that racial or ethnic prejudice will influence the jury's evaluation of the evidence. For two reasons, we do not believe that such a reasonable possibility has been demonstrated in this case.
30
First, the trial court reasonably determined that a juror's prejudice toward aliens might affect his or her ability to serve impartially in this case. The court, therefore, questioned the prospective jurors as to their attitudes toward aliens. There can be no doubt that the jurors would have understood a question about aliens to at least include Mexican aliens. The trial court excused two jurors for cause, based on their responses to this question. Removing these jurors eliminated, we believe, any reasonable possibility that the remaining jurors would be influenced by an undisclosed racial prejudice toward Mexicans that would have been disclosed by further questioning.8
31
Second, petitioner contends that "any latent racial antagonism" of the jurors toward Mexicans was likely to be exacerbated by Bowling's testimony concerning the relationship between petitioner and her daughter. Petitioner, however, failed to make this argument to the trial court in support of his requested question. Even if he had, however, it would not create a reasonable possibility that the jury's determination would be influenced by racial prejudice. Bowling's testimony as to petitioner's role in the particular smuggling operation involved in this trial was substantially corroborated by the other witnesses presented by the Government, including Falcon-Zavala and the three illegal aliens. Under the circumstances of this case, the racial or ethnic differences between the defendant and a key Government witness did not create a situation meeting the standard set out above. The judge was not, therefore, required to inquire further than he did.
32
Under these circumstances, we cannot hold that there was a reasonable possibility that racial or ethnic prejudice would affect the jury. Therefore, the trial court did not abuse its discretion in denying petitioner's request, and the judgment of the Court of Appeals is affirmed.
33
So ordered.
34
Justice REHNQUIST, with whom THE CHIEF JUSTICE, joins, concurring in the result.
35
I agree with the result reached by the plurality today and with most of its reasoning. I cannot, however, embrace the language contained in the last paragraph of Part II of the opinion which may be perceived as creating a per se rule requiring reversal of any criminal conviction involving a "violent crime" between members of different racial or ethnic groups if the district court refused to voir dire on the issue of racial prejudice. I do not disagree in toto with that paragraph, but fear that its use of the term "violent crime" and the term "different racial or ethnic groups" is apt to spawn new litigation over the meaning of these terms and whether the trial court properly assessed the possibility of racial or ethnic prejudice infecting the selection of the jury. It is undoubtedly true that such prejudice may occur in the case of a defendant accused of a violent crime where the defendant and victim are members of different racial or ethnic groups, and it is also undoubtedly true that there are circumstances other than these which may suggest to the trial judge the need for an inquiry into the possibility of prejudice. But knowing the contentiousness of our profession, the suggestion that a precise definition of "violent crime" or "different racial or ethnic groups" will ever be arrived at leaves me unwilling to lay down the flat rule which seems to be proposed in the last paragraph of Part II. I would think that in the case of "violent crimes" where the defendant and victims are members of "different racial or ethnic groups," the decision as to inquiry on voir dire as to racial or ethnic prejudice "remains primarily with the trial court, subject to case-by-case review by the appellate courts." See ante, at 192. In my view, it is inappropriate for us to decide that there is always a "reasonable possibility" of prejudice solely because the crime is "violent." I would also not rule out the possibility of a finding of harmless error, but that may well be embraced in footnote 7 to the plurality's opinion.
36
As can be seen, my differences with the plurality are not great, but we are beseeched on so many appeals to reverse a judgment for procedural reasons which cannot fairly have been said to play a part in the factfinding process that I would leave somewhat more to the trial court's discretion than does the plurality, the decision as to whether or not questions on such as racial or ethnic prejudice should be asked on voir dire. We cannot, in the nature of things, always lay down "bright line" rules, but we should try to avoid definitions that do not define or clarify and hence invite litigation. It seems to me quite conceivable that a thoroughly competent and fairminded district court judge could conclude that the asking of such questions, or the devotion of a substantial amount of time to the inquiry, could well exacerbate whatever prejudice might exist without substantially aiding in exposing it.
37
Justice STEVENS, with whom Justice BRENNAN and Justice MARSHALL join, dissenting.
38
The question in this case is whether, in the conduct of the voir dire examination of prospective jurors in criminal prosecutions in the federal courts, the trial judge must, upon request, ask at least one question concerning possible prejudice against the minority group to which the defendant belongs. Settled law provides a simple answer to this question.1
39
The plurality's new answer to that question contains two parts: it holds that "federal trial courts must make such an inquiry when requested by a defendant accused of a violent crime and where the defendant and the victim are members of different racial or ethnic groups." Ante, at 192. Because no such "special circumstances" are present in this case, the plurality affirms the judgment of the Court of Appeals. Ante, at 192-194. Heretofore, federal law has required that a racial or ethnic prejudice inquiry be made when requested by the defendant, regardless of the presence or absence of special circumstances indicating that there is a reasonable possibility that prejudice will influence the jury. In this case, because the general questions asked by the learned trial judge were inadequate, I respectfully dissent.
40
An impartial tribunal is an indispensable element of a fair criminal trial. See In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942; Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751.2 Before any citizen may be permitted to sit in judgment on his peers, some inquiry into his potential bias is essential. Such bias can arise from two principal sources: a special reaction to the facts of the particular case, or a special prejudice against the individual defendant that is unrelated to the particular case. Much as we wish it were otherwise, we should acknowledge the fact that there are many potential jurors who harbor strong prejudices against all members of certain racial, religious, or ethnic groups for no reason other than hostility to the group as a whole.3 Even when there are no "special circumstances" connected with an alleged criminal transaction indicating an unusual risk of racial or other group bias, a member of the Nazi Party should not be allowed to sit in judgment on a Jewish defendant.
41
In 1931, in Aldridge v. United States, 283 U.S. 308, 51 S.Ct. 470, 75 L.Ed. 1054, this Court addressed the problem of protecting criminal defendants in the federal courts from the possibility of racial or ethnic bias among prospective jurors. That case was not argued or decided in a vacuum. Rather, it followed a long line of state-court decisions requiring that prospective jurors be questioned about such potential prejudices. Aldridge itself involved the special circumstances that the crime at issue was murder, and that the defendant was black and the victim was a white police officer, but neither the reasoning in Chief Justice Hughes' opinion for the Court, nor the reasoning in the state-court opinions from which he quoted at length, relied on such special circumstances. The character of the Aldridge holding is best explained by a quotation of both the text and the appended footnotes discussing the leading cases from Florida, Mississippi, North Carolina, Texas, and South Carolina:
42
"The propriety of such an inquiry has been generally recognized. In Pinder v. State, 27 Fla. 370, 8 So. 837, the counsel for the accused sought to have the jurors asked on their voir dire : 'Could you give the defendant, who is a negro, as fair and as impartial a trial as you could a white man, and give him the same advantage and protection as you would a white man upon the same evidence?' The Supreme Court of Florida held that the refusal of the court to allow the question was error and reversed the conviction.1 In Hill v. State, 112 Miss. 260, 72 So. 1003, the Supreme Court of Mississippi held that it was fatal error to refuse to permit a negro on trial for murder to put to prospective jurors on their voir dire the following question: 'Have you got any prejudice against the negro, as a negro, that would induce you to return a verdict on less or slighter evidence than you would return a verdict of guilty against a white man under the same circumstances?' The Supreme Court of North Carolina reversed the conviction of a negro because of the refusal of the trial judge to permit a juror to be asked if 'he believed he could, as a juror, do equal and impartial justice between the State and a colored man.' State v. McAfee, 64 N.C. 339.2 See, also, Fendrick v. State, 39 Tex.Cr. 147, 45 S.W. 589; State v. Sanders, 103 S.C. 216, 88 S.E. 10.
43
"1 In the Pinder case, supra, the court said: 'Though the question is not in express terms provided for in the statute above cited' (McClellan's Digest, § 10, p. 446) 'yet it was a pertinent, and, as we think, proper question, to test fully the existence of bias or prejudice in the minds of the jurors. It sought to elicit a fact that was of the most vital import to the defendant; and a fact, too, that if existent, was locked up entirely within the breasts of the jurors to whom the question was propounded; a knowledge of the existence of which could only be acquired by interrogating the juror himself. The answer to it if in the affirmative could have worked no harm to the juror or to anyone else, but would have done credit to the humanity and intelligence of the juror, and would have satisfactorily exhibited to the court and to the defendant his entire competency, so far as the element of bias or prejudice was involved. But, if the answer to it from the jurors had been in the negative, then, we have no hesitancy in saying that it would have shown them to be wholly unfit and incompetent to sit upon the trial of a man of the negro race, whose right to a trial by a fair and impartial jury is as fully guaranteed to him under our constitution and laws, as to the whitest man in Christendom. And such incompetency asserts itself with superadded force in such a case as this where the life or death of the defendant was the issue to tip the scale in the jury's hands for adjustment.'
44
"2 In that case, the court said (at p. 340): 'It is essential to the purity of trial by jury, that every juror shall be free from bias. If his mind has been poisoned by prejudice of any kind, whether resulting from reason or passion, he is unfit to sit on a jury. Here, his Honor refused to allow a proper question to be put to the juror, in order to test his qualifications. Suppose the question had been allowed, and the juror had answered, that the state of his feelings toward the colored race was such that he could not show equal and impartial justice between the State and the prisoner, especially in charges of this character, it is at once seen that he would have been grossly unfit to sit in the jury box.' "
45
283 U.S., at 311-313, and nn. 1, 2, 51 S.Ct., at 471-472, and nn. 1, 2.
46
To avoid the risk that the opinion might be construed as applicable only to prejudice against members of the black race, Chief Justice Hughes added the following paragraph:
47
"The right to examine jurors on the voir dire as to the existence of a disqualifying state of mind, has been upheld with respect to other races than the black race, and in relation to religious and other prejudices of a serious character. Potter v. State, 86 Tex.Cr. 380, 384, 216 S.W. 886; People v. Reyes, 5 Cal. 347, 349; Watson v. Whitney, 23 Cal. 375, 379; People v. Car Soy, 57 Cal. 102; Horst v. Silverman, 20 Wash. 233, 234, 55 P. 52. In People v. Reyes, supra, Mexicans were charged with assault with intent to commit murder, and conviction was reversed because of the refusal to allow questions to determine whether a prospective juror was a member of the Know Nothing party, and whether he had taken any oath or obligation which resulted in prejudice, or whether independent of such an oath he entertained a prejudice, which would prevent him from giving the accused a fair trial.3
48
inquiries designed to elicit the fact of disqualification were barred. No surer way could be devised to bring the processes of justice into disrepute." Id., at 314-315, 51 S.Ct., at 473.
49
In light of Chief Justice Hughes' reasoning, it is not surprising that the overwhelming majority of Federal Circuit Judges who have confronted the question presented in this case have interpreted Aldridge as establishing a firm rule entitling a minority defendant to some inquiry of prospective jurors on voir dire about possible racial or ethnic prejudice unrelated to the specific facts of the case.4 I so read Aldridge in 1973,5 and I think the message of the case is equally clear in 1981.6 The state court decisions on which Chief Justice Hughes relied in Aldridge did not rest upon the presence of special circumstances indicating an unusual likelihood that racial or other prejudice would infect the jury venire.7 Therefore, although such special circumstances were present in Aldridge, that decision has a broader significance. I can "perceive no reason why Aldridge should be applied more restrictively than the precedent on which it rests." United States v. Gore, 435 F.2d 1110, 1112 (CA4 1970). Accordingly, unlike the plurality, I would join the majority of Federal Circuit Judges and decline to limit Aldridge to cases involving crimes of interracial violence.
50
In this case, I agree with the plurality's view that the voir dire was adequate to determine whether any special circumstances might give rise to juror prejudice. The trial judge did inquire about prejudice related to the smuggling of aliens into California, and I agree that the possibility of prejudice resulting from the relationship between the defendant and the witness Bowling's daughter was a matter that the trial judge could best evaluate. However, the voir dire was inadequate as a matter of law because it wholly ignored the risk that potential jurors in the Southern District of California might be prejudiced against the defendant simply because he is a person of Mexican descent. Because the defendant's lawyer perceived a risk of such irrational prejudice in that District, his request for a specific question concerning it should have been granted.8
51
I respectfully dissent.
1
Petitioner was charged with one count of conspiracy to conceal, harbor and shield, and illegally transport aliens, in violation of 18 U.S.C. § 371 and 8 U.S.C. § 1324; three counts of aiding and abetting the illegal transportation of aliens, in violation of 8 U.S.C. § 1324(a)(2) and 18 U.S.C. § 2; And three counts of concealing, harboring, and shielding aliens, in violation of 8 U.S.C. § 1324(a)(3).
2
The trial court asked the panel as a group questions concerning the following: knowledge of the participants in the trial; outside knowledge of the case; physical impairments that would interfere with their responsibilities as jurors; legal training; possible disagreement with the principle that a criminal defendant is presumed to be innocent. Each juror was asked to state some basic facts about himself or herself, including name, occupation, and spouse's occupation.
3
Two jurors were excused because of their responses to this question.
4
The other five questions were:
1
"Have you ever employed or have friends that have employed illegal aliens?"
2
"Have you ever worked for the federal Government? If so, as what? How long?"
3
"Have you ever been the victim of a crime?"
4
"Have you ever sat as a juror in a civil or criminal case? What was the nature of the case and the verdict?"
5
"Are you able to speak Spanish? If so, how well? Would you be willing to accept the interpreter's translation?"
5
On appeal, petitioner also challenged the failure of the trial court to provide him a free copy of the transcript of a suppression hearing, the sentencing procedure applied to him, the denial of an evidentiary hearing on possible prosecutorial vindictiveness, the trial court's refusal to give an instruction on a lesser-included offense, the propriety of imposing consecutive sentences, and the constitutionality of 8 U.S.C. § 1324. The Court of Appeals rejected all of these contentions.
6
In Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), we noted the connection between voir dire and the exercise of peremptory challenges: "The voir dire in American trials tends to be extensive and probing, operating as a predicate for the exercise of peremptories . . . ." Id., at 218-219, 85 S.Ct., at 835. We also noted there that although there is no federal constitutional requirement that peremptory challenges be permitted, the challenge is widely used in federal and state courts pursuant to statute or rule and is deemed to be an important aspect of trial by jury. Id., at 219, 85 S.Ct., at 835.
7
Of course, the judge need not defer to a defendant's request where there is no rational possibility of racial prejudice. But since the courts are seeking to assure the appearance and reality of a fair trial, if the defendant claims a meaningful ethnic difference between himself and the victim, his voir dire request should ordinarily be satisfied.
8
We also note that the trial court asked generally whether there were any grounds which might occur to the jurors as to why they could not sit as "fair and impartial" jurors. Coupled with the question concerning aliens, there is little reason to believe that a juror who did not answer this general question would have answered affirmatively a question directed narrowly at racial prejudice.
1
"For more than four decades, it has been the rule in federal courts that a trial court must inquire as to possible racial bias of the veniremen when the defendant is a member of a racial minority. Aldridge v. United States, 283 U.S. 308, 51 S.Ct. 470, 75 L.Ed. 1054 (1931)." United States v. Powers, 482 F.2d 941, 944 (CA8 1973) (emphasis in original), cert. denied, 415 U.S. 923, 94 S.Ct. 1426, 39 L.Ed.2d 479.
2
A criminal defendant's right to an impartial jury arises from both the Sixth Amendment and principles of due process. See Ristaino v. Ross, 424 U.S. 589, 595, n. 6, 96 S.Ct. 1017, 1020, n. 6, 47 L.Ed.2d 258.
3
The fact that such prejudice may not be a pervasive influence in the particular community from which the jury is drawn or even in society at large does not make this concern any less serious. As Chief Justice Hughes explained in Aldridge v. United States, 283 U.S. 308, 314, 51 S.Ct. 470, 473, 75 L.Ed. 1054:
"But the question is not . . . as to the dominant sentiment of the community and the general absence of any disqualifying prejudice, but as to the bias of the particular jurors who are to try the accused. If in fact, sharing the general sentiment, they were found to be impartial, no harm would be done in permitting the question; but if any one of them was shown to entertain a prejudice which would preclude his rendering a fair verdict, a gross injustice would be perpetrated in allowing him to sit."
"3 The court in that case said (at p. 349): 'As the juror best knows the condition of his own mind, no satisfactory conclusion can be arrived at, without resort to himself. Applying this test then, how is it possible to ascertain whether he is prejudiced or not, unless questions similar to the foregoing are propounded to him? . . .
" 'Prejudice being a state of mind more frequently founded in passion than in reason, may exist with or without cause; and to ask a person whether he is prejudiced or not against a party, and (if the answer is affirmative), whether that prejudice is of such a character as would lead him to deny the party a fair trial, is not only the simplest method of ascertaining the state of his mind, but is, probably, the only sure method of fathoming his thoughts and feelings. If the person called had not taken an obligation which would prejudice him against foreigners in such a manner as to imperil their rights in a court of law, he could say so, and the question and answer would be harmless. If, upon the other hand, he had taken oaths, and was under obligations which influenced his mind and feelings in such a manner as to deny to a foreigner an impartial trial, he is grossly unfit to sit as a juror, and such facts should be known.' "
283 U.S., at 313-314, and n. 3, 51 S.Ct., at 472-473, and n. 3.
Then, toward the end of the Aldridge opinion, Chief Justice Hughes again made it clear that the Court's holding was not limited to a risk of racial prejudice arising from the special circumstances of a particular case:
"The argument is advanced on behalf of the Government that it would be detrimental to the administration of the law in the courts of the United States to allow questions to jurors as to racial or religious prejudices. We think that it would be far more injurious to permit it to be thought that persons entertaining a disqualifying prejudice were allowed to serve as jurors and that
4
See Frasier v. United States, 267 F.2d 62, 66 (CA1 1959); King v. United States, 124 U.S.App.D.C. 138, 139, 362 F.2d 968, 969 (1966); United States v. Gore, 435 F.2d 1110, 1111-1113 (CA4 1970); United States v. Carter, 440 F.2d 1132, 1134-1135 (CA6 1971); United States v. Bamberger, 456 F.2d 1119, 1129 (CA3 1972), cert. denied sub nom. Crapps v. United States, 406 U.S. 969, 92 S.Ct. 2424, 32 L.Ed.2d 668; United States v. Robinson, 466 F.2d 780, 781-782 (CA7 1972); United States v. Booker, 480 F.2d 1310, 1310-1311 (CA7 1973); United States v. Powers, 482 F.2d 941, 944 (CA8 1973), cert. denied, 415 U.S. 923, 94 S.Ct. 1426, 39 L.Ed.2d 479; United States v. Robinson, 485 F.2d 1157, 1158-1160 (CA3 1973); United States v. Johnson, 527 F.2d 1104, 1106-1107 (CA4 1975); United States v. Bell, 573 F.2d 1040, 1042-1043 (CA8 1978); United States v. Bowles, 574 F.2d 970, 971-973 (CA8 1978); United States v. Williams, 612 F.2d 735, 736-737 (CA3 1979), cert. denied, 445 U.S. 934, 100 S.Ct. 1328, 63 L.Ed.2d 770. Cf. Kuzniak v. Taylor Supply Co., 471 F.2d 702, 703 (CA6 1972); United States v. Grant, 494 F.2d 120, 122-123, and n. 6 (CA2 1974), cert. denied, 419 U.S. 849, 95 S.Ct. 87, 42 L.Ed.2d 79; United States v. Bear Runner, 502 F.2d 908, 911-913 (CA8 1974).
5
See United States v. Booker, supra.
6
Nothing in Ristaino v. Ross, 424 U.S. 589, 96 S.Ct. 1017, 47 L.Ed.2d 258, is inconsistent with this interpretation of Aldridge. Ristaino defined the circumstances under which a state trial court is constitutionally required to inquire into racial prejudice on voir dire. The Court in Ristaino expressly noted that it would require, under its supervisory power, that federal trial courts inquire into racial prejudice in cases in which such inquiry was not constitutionally required. 424 U.S., at 597, n. 9, 96 S.Ct., at 1021, n. 9. The Court also noted that Aldridge was based on the supervisory power, not on the Federal Constitution. 424 U.S., at 598, n. 10, 96 S.Ct., at 1022, n. 10. See United States v. Williams, supra ; United States v. Bowles, supra.
7
The Fourth Circuit, in United States v. Gore, supra, examined the state-court decisions cited in Aldridge and found that some involved crimes with no racial overtones whatsoever. See 435 F.2d, at 1111-1112. Chief Justice Hughes' discussion of these decisions in Aldridge indicates that that case established "a broad rule that in any criminal case an accused has a right to inquire whether racial prejudice precludes any juror from reaching a fair and impartial verdict." 435 F.2d, at 1111. See also King v. United States, supra, at 139, 362 F.2d, at 969.
8
It is, of course, clear that the trial judge's duty to give such an instruction was not dependent on the phrasing of the particular questions submitted by defense counsel. See Aldridge, 283 U.S., at 311, 51 S.Ct., at 471. It is equally clear that, although trial judges have broad discretion to formulate voir dire questions, the general question whether there was any reason "why you could not sit in this case as a fair and impartial juror," see ante, at 186, is not an adequate substitute for a specific inquiry; if it were, trial judges might be well advised simply to ask that question and nothing else. See, e. g., United States v. Carter, supra, at 1134-1135; United States v. Robinson, supra, at 782.
| 01
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451 U.S. 232
101 S.Ct. 1657
68 L.Ed.2d 58
State of ARIZONA, Petitioner,v.William Dale MANYPENNY.
No. 79-621.
Argued Nov. 10, 1980.
Decided April 21, 1981.
Rehearing Denied June 15, 1981.
See 452 U.S. 955, 101 S.Ct. 3100.
Syllabus
Respondent was indicted in an Arizona state court for the commission of a state crime. Because the charge arose from an act committed while he was on duty as a federal Border Patrol Agent, respondent, pursuant to 28 U.S.C. § 1442(a)(1), removed the case to Federal District Court. After a jury trial, a guilty verdict was returned, but ultimately the District Court sua sponte concluded that respondent had a valid immunity defense and entered a judgment of acquittal. The State appealed, but the Court of Appeals dismissed the appeal for lack of jurisdiction, holding, inter alia, that a criminal proceeding removed to federal court under § 1442(a)(1) arises under federal law, and accordingly is controlled by that law. The court concluded that only Congress can authorize an appeal by a State in a § 1442(a)(1) criminal prosecution and that it had not done so. The court rejected the suggestion that Arizona's appeal was authorized by 28 U.S.C. § 1291, which confers jurisdiction on United States courts of appeals over appeals from all final decisions of federal district courts, except where a direct review may be had in the Supreme Court.
Held : In a criminal proceeding removed to federal court under § 1442(a)(1), a State may appeal under § 1291 from an adverse judgment if statutory authority to seek such review is conferred by state law. Thus, because Arizona law conferred such authority here, and because removal does not alter the nature of the authority conferred, the State must be allowed to appeal from the post-guilty-verdict judgment of acquittal. Pp. 239-250.
(a) Arizona statutes, as construed by Arizona courts, authorize the prosecution to seek review when it claims that the trial court has exceeded its jurisdiction or abused its discretion, as is the claim in this case. Pp. 239-240.
(b) Respondent, by obtaining a federal forum, fully vindicated the federal policies supporting removal—permitting a trial on the merits of the state-law question free from local interests or prejudice and enabling the defendant to have the validity of his immunity defense adjudicated in a federal forum. No further purpose of the removal statute would be served by denying the State a right to seek review when that very right is available under state law. On the contrary, it would be anomalous to conclude that the State's appellate rights were diminished solely because of the removal. Pp. 241-243.
(c) This Court's prior decisions restricting the availability of § 1291 and its predecessors when the Government seeks to appeal in a criminal case flow from a tradition of requiring that a prosecutorial appeal be affirmatively sanctioned by the same sovereign that sponsors the prosecution. The intention to restrict sovereign power in this area is adequately addressed when the legislature responsible for that power has spoken in express terms, or when a legislative enactment has been authoritatively construed by the sovereign's highest court. Section 1291 neither compels nor forecloses appellate jurisdiction in an appeal taken by a State as prosecutor. Instead, the provision permits a State to appeal if it is authorized to do so by state law. Arizona can rely on § 1291 combined with appellate authorization from the Arizona Legislature. In the circumstances of this case, no more is required. Pp. 244-249.
608 F.2d 1197, reversed and remanded.
Daniel Jesse Smith, Tucson, Ariz., for petitioner.
James D. Whitney, Tucson, Ariz., for respondent.
Justice BLACKMUN delivered the opinion of the Court.
1
Respondent, a federal officer, was charged in Arizona with the commission of a state crime. On the officer's motion, the case was removed from state court and tried in federal court. The issue presented is whether a federal appellate court has jurisdiction to entertain Arizona's appeal from the District Court's judgment of acquittal entered after a jury verdict of guilty.
2
* A.
3
Respondent William Dale Manypenny had been employed for six years as a Border Patrol Agent in the United States Immigration and Naturalization Service (INS). On the moonlit evening of March 15, 1976, he and fellow Agent Gerald Wayne Hjelle were assigned to patrol the Sweetwater Pass, located on federal land in Pima County, Ariz., approximately 10 miles from the Mexican border.1 INS officials knew that the Pass was frequently traveled by aliens illegally entering the United States. While patrolling the Pass, respondent and his colleague were expected to stop and question any person suspected of being an alien and to arrest that person if he could not produce a lawful entry permit.2 Both agents wore plain clothes, as was customary for patrol work in that rugged desert area. Tr. 248-249, 293.
4
Three Mexican males were traveling north along the trail when respondent's electronic sensor system signaled their approach.3 Following standard procedure, Agent Hjelle stationed himself near where the path emerged from the canyon onto higher ground. Respondent took a position some 100 yards to the south, on a bluff overlooking but out of sight of the path. The plan called for Hjelle to stop any suspected illegal alien, identify himself, and conduct a brief inquiry to determine the suspect's status, while respondent approached from behind.
5
The three men emerged from the canyon and saw Hjelle, who ordered them to stop. Id., at 16-17, 283-284. Before, Hjelle could begin his questioning one of the men turned and ran back south toward the border. Respondent shouted after him to halt. Id., at 174. When the fleeing man failed to stop, respondent fired three shotgun blasts in his direction. One hit the fugitive in the buttocks, causing multiple wounds. Id., at 105-106. Another struck him in the upper spine, severing the cord and leaving him a quadriplegic. Id., at 87-88, 93.
B
6
Respondent was indicted in the Superior Court of Pima County, Ariz., for assault with a deadly weapon, in violation of Ariz.Rev.Stat.Ann. §§ 13-249 A and B (Supp. 1973).4 Because the charge arose from an act committed while on duty for the INS, respondent, pursuant to 28 U.S.C. § 1442(a)(1),5 removed the case to the United States District Court for the District of Arizona. The case was tried before a jury, and a verdict of guilty was returned. Respondent then timely moved for arrest of judgment or, alternatively, for a new trial. See Fed.Rules Crim.Proc. 33 and 34.6 The District Court granted respondent's motion to arrest judgment and dismissed the indictment; it did so on the ground that the State could not assert its criminal jurisdiction over federal lands. 7 Record 7-8. The State immediately moved for reconsideration; the District Court also granted the State's motion and took the matter under advisement. App. 36-38.
7
Nine months later, the District Court vacated its previous order arresting judgment. 445 F.Supp. 1123 (1977). The court on reconsideration held that Arizona retained criminal jurisdiction over all land within its exterior boundaries.7 Having determined that it properly could exercise jurisdiction over Arizona's claim, the District Court then proceeded sua sponte to construe respondent's motion under Rule 34 as a motion for judgment of acquittal, pursuant to Federal Rule of Criminal Procedure 29(c). Although an immunity defense had not been raised at trial, and the State had not introduced any evidence designed to overcome that defense, the court concluded that it had erred in failing to instruct the jury on such a defense. Relying on principles enunciated in In re Neagle, 135 U.S. 1, 75, 10 S.Ct. 658, 672, 34 L.Ed. 55 (1890), and Clifton v. Cox, 549 F.2d 722 (CA9 1977), the District Court reasoned that respondent would be immune from prosecution on a state criminal charge if he acted under color of federal law and in the honest belief that he acted under color of federal law and in the honest belief that his actions were necessary and proper for the execution of his federal duties. 445 F.Supp., at 1126-1127. The court applied this standard to the evidence adduced at trial, and concluded that a reasonable jury could not have found respondent guilty beyond a reasonable doubt. Id., at 1128. The presumed motion for acquittal was granted and the jury verdict was set aside.
8
Claiming that the trial court had exceeded its authority,8 the State filed a timely notice of appeal from the acquittal. It invoked the appellate court's jurisdiction under 18 U.S.C. § 3731.9 The United States Court of Appeals for the Ninth Circuit, by a brief per curiam, opinion citing Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978), initially dismissed the appeal on double jeopardy grounds.10 Upon timely petition for rehearing, however, the Court of Appeals withdrew the opinion, App. to Pet. for Cert. 1a, and substituted another in its place. This time, by a divided vote, the court dismissed Arizona's appeal on the ground that jurisdiction was lacking. 608 F.2d 1197 (1979). It noted that under settled precedent of this Court, the Government may take an appeal from an adverse decision in a criminal case only if expressly authorized by statute to do so. United States v. Martin Linen Supply Co., 430 U.S. 564, 568, 97 S.Ct. 1349, 1352, 51 L.Ed.2d 642 (1977); United States v. Wilson, 420 U.S. 332, 336, 95 S.Ct. 1013, 1018, 43 L.Ed.2d 232 (1975); United States v. Sanges, 144 U.S. 310, 312, 318-323, 12 S.Ct. 609, 610, 612-613, 36 L.Ed. 445 (1892). Emphasizing the language of 18 U.S.C. § 3731, the court held that the statute authorizes an appeal only when the United States is the prosecutor, not when a state prosecution has been removed to federal court.
9
The Court of Appeals declined to consider whether state law provided Arizona with a right to appeal in this case. Instead, the court reasoned that a criminal proceeding removed to federal court under 28 U.S.C. § 1442(a)(1) arises under federal law, and accordingly is to be controlled by that law rather than state law. The court concluded that "only Congress can authorize an appeal by a state in a § 1442(a)(1) criminal prosecution," and Congress had not done so. 608 F.2d, at 1200. The Court of Appeals also rejected the suggestion that the general appeals statute, 28 U.S.C. § 1291,11 provided authorization for Arizona's appeal. 608 F.2d, at 1199, n.3.
10
The dissenting judge discerned separate bases for appellate jurisdiction in 18 U.S.C. § 3731 and 28 U.S.C. § 1291. 608 F.2d, at 1200-1202.12
11
We granted certiorari in order to resolve a problem of appellate jurisdiction created by the federal removal statute. 445 U.S. 960, 100 S.Ct. 1644, 64 L.Ed.2d 234 (1980). Because it is an issue that carries significance for federal-state relations, we pay close attention to both state and federal law bearing on its resolution.
II
12
We begin by noting that had respondent's trial occurred in state rather than federal court, Arizona's statutes, as construed and applied by the courts of that State, would enable the State to obtain the appellate review it seeks. Under Arizona law, the prosecution is authorized to seek review, by certiorari, when its claim is that the lower court has exceeded its jurisdiction or has abused its discretion. See Ariz.Rev.Stat.Ann. § 12-2001 (1956).13 The State's petition for review has been routinely granted in numerous instances exactly like this case, where the prosecution seeks review of a judgment of acquittal following a guilty verdict. See, e. g., State ex rel. Hyder v. Superior Court (Clifton, Real Party in Interest), 128 Ariz. 216, 624 P.2d 1264 (1981); State ex rel. Hyder v. Superior Court (Moya, Real Party in Interest), 124 Ariz. 560, 606 P.2d 411 (1980); State ex rel. Dawson v. Superior Court, 112 Ariz. 123, 538 P.2d 397 (1975). See also State v. Allen, 27 Ariz.App. 577, 557 P.2d 176 (1976); State v. Lopez, 26 Ariz.App. 559, 550 P.2d 113 (1976); State v. Gradillas, 25 Ariz.App. 510, 512, 544 P.2d 1111, 1113 (1976).14
13
Thus, the sole question posed here is whether respondent's removal of the state prosecution to federal court for trial alters the nature of the State's otherwise well-established right, under state law, to seek review of the instant judgment of acquittal. We consider this question first by reviewing the legal effect of and the policies served by removal for trial under § 1442(a)(1). We then examine respondent's argument that the federal law governing federal appellate jurisdiction not only does not permit but also, in fact, bars the State's criminal appeal in federal court.
14
* The Court of Appeals concluded that the fact of removal substantially alters the State's right to seek review. Reasoning that a case brought pursuant to § 1442(a)(1) arises under federal law, the court held that state enabling statutes retain no significance. But a state criminal proceeding against a federal officer that is removed to federal court does not "arise under federal law" in this pre-empting sense. Rather, the federal court conducts the trial under federal rules of procedure while applying the criminal law of the State. Tennessee v. Davis, 100 U.S. 257, 271-272, 25 L.Ed. 648 (1880). See Fed.Rule Crim.Proc. 54(b)(1), Advisory Committee Notes, 18 U.S.C.App., pp. 1480-1481.15
15
This principle is entirely consistent with the purpose underlying the removal of proceedings commenced in state court against a federal officer. Historically, removal under § 1442(a)(1) and its predecessor statutes was meant to ensure a federal forum in any case where a federal official is entitled to raise a defense arising out of his official duties.16 The act of removal permits a trial upon the merits of the state-law question free from local interests or prejudice. See Colorado v. Symes, 286 U.S. 510, 517-518, 52 S.Ct. 635, 637, 76 L.Ed. 1253 (1932); Maryland v. Soper, 270 U.S. 9, 32, 46 S.Ct. 185, 190, 70 L.Ed. 449 (1926). It also enables the defendant to have the validity of his immunity defense adjudicated, in a federal forum. Willingham v. Morgan, 395 U.S. 402, 407, 89 S.Ct. 1813, 1816, 23 L.Ed.2d 396 (1969). For these reasons, this Court has held that the right of removal is absolute for conduct performed under color of federal office, and has insisted that the policy favoring removal "should not be frustrated by a narrow, grudging interpretation of § 1442(a)(1)." Ibid.
16
At the same time, the invocation of removal jurisdiction by a federal officer does not revise or alter the underlying law to be applied. In this respect, it is a purely derivative form of jurisdiction, neither enlarging nor contracting the rights of the parties.17 Federal involvement is necessary in order to insure a federal forum, but it is limited to assuring that an impartial setting is provided in which the federal defense of immunity can be considered during prosecution under state law. Thus, while giving full effect to the purpose of removal, this Court retains the highest regard for a State's right to make and enforce its own criminal laws. Colorado v. Symes, 286 U.S., at 517-518, 52 S.Ct., at 637.
17
Under our federal system, "[i]t goes without saying that preventing and dealing with crime is much more the business of the States than it is of the Federal Government." Patterson v. New York, 432 U.S. 197, 201, 97 S.Ct. 2319, 2322, 53 L.Ed.2d 281 (1977). Because the regulation of crime is pre-eminently a matter for the States, we have identified "a strong judicial policy against federal interference with state criminal proceedings." Huffman v. Pursue, Ltd., 420 U.S. 592, 600, 95 S.Ct. 1200, 1206, 43 L.Ed.2d 482 (1975). A State's interest in enforcing its criminal laws merits comparable judicial respect when pursued in the federal courts. Cf. Colorado v. Symes, 286 U.S., at 518, 52 S.Ct., at 637.
18
Respondent here, by obtaining a federal forum, has fully vindicated the federal policies supporting removal. The plainest evidence of this vindication is the District Court's application of the immunity defense. No further purpose of the removal statute would be served by denying the State a right to seek review when that very right is available under applicable state law. On the contrary, it would be anomalous to conclude that the State's appellate rights were diminished solely because of the removal. The statutory goal of ensuring fair and impartial adjudication is not advanced when the State in effect can be penalized by the defendant's decision to remove a criminal prosecution. Absent any indication that the removal statute was intended to derogate from the State's interest in evenhanded enforcement of its laws, we see no justification for providing an unintended benefit to a defendant who happens to be a federal officer.18
B
19
Although the purposes of the removal statute do not support denial of a State's customary right to seek appellate review, we do not suggest that this alone establishes the State's right to appeal in federal court. Authorization to seek review under Arizona law is not a grant of federal appellate jurisdiction. Nor, when added to the conclusion that removal itself fails to diminish Arizona's appellate rights, does this authorization amount to a grant of equivalent federal jurisdiction at the appellate level. Because the criminal removal statute does not confer federal appellate jurisdiction, some independent federal basis is required if a State is to perfect its appeal. Petitioner contends in part that such authorization derives from 28 U.S.C. § 1291, the general statutory grant of appellate jurisdiction. Brief for Petitioner 49-58. Respondent argues, however, that § 1291 cannot support Arizona's appeal because it has been found inadequate, standing alone, to support a criminal appeal by the Federal Government. Brief for Respondent 32-40. This argument deserves close attention, for it draws on the important tradition disfavoring criminal appeals by the sovereign.
20
Under 28 U.S.C. § 1291, any litigant armed with a final judgment from a lower federal court is entitled to take an appeal. By its terms, the statute addresses neither the identity of particular parties nor the nature of the prior legal proceedings.19 But while it is settled that a civil appeal, or an appeal by the defendant in a criminal case, may be taken from any final decision of a District Court, this Court has observed on prior occasions that, " 'in the federal jurisprudence, at least, appeals by the Government in criminal cases, are something unusual, exceptional, not favored.' " Will v. United States, 389 U.S. 90, 96, 88 S.Ct. 269, 274, 19 L.Ed.2d 305 (1967), quoting from Carroll v. United States, 354 U.S. 394, 400, 77 S.Ct. 1332, 1336, 1 L.Ed.2d 1442 (1957). This federal policy has deep roots in the common law, for it was generally understood, at least in this country, that the sovereign had no right to appeal an adverse criminal judgment unless expressly authorized by statute to do so.20 Accordingly, from the early days of the Republic, most state courts refused to consider appeals by prosecutors who lacked the requisite statutory authority.21
21
Both prudential and constitutional interests contributed to this tradition. The need to restrict appeals by the prosecutor reflected a prudential concern that individuals should be free from the harassment and vexation of unbounded litigation by the sovereign. See, e. g., State v. Jones, 7 Ga. 422, 425-426 (1849); People v. Corning, 2 N.Y. 9, 16 (1848). This concern also underlies the constitutional ban against double jeopardy, which bars an appeal by the prosecutor following a jury verdict of acquittal. See, e. g., People v. Webb, 38 Cal. 467, 476-480 (1869); State v. Burris, 3 Tex. 118 (1848); State v. Hand, 6 Ark. 169, 171 (1845). See also Burks v. United States, 437 U.S. 1, 16, 98 S.Ct. 2141, 2149, 57 L.Ed.2d 1 (1978); Fong Foo v. United States, 369 U.S. 141, 143, 82 S.Ct. 671, 672, 7 L.Ed.2d 629 (1962). See generally United States v. DiFrancesco, 449 U.S. 117, 129-130, 101 S.Ct. 426, 433, 66 L.Ed.2d 328 (1980). In general, both concerns translate into the presumption that the prosecution lacks appellate authority absent express legislative authorization to the contrary.
22
This presumption was first announced as a rule of federal law in United States v. Sanges, 144 U.S. 310, 12 S.Ct. 609, 36 L.Ed. 445 (1892). There, the Court held that no appellate right by the Federal Government exists in the absence of express enabling legislation from Congress. The Court also concluded that the general grant of appellate jurisdiction contained in the Judiciary Act of 1891 did not satisfy this requirement.22 In subsequent decisions, the Court has reaffirmed that the Federal Government enjoys no inherent right to appeal a criminal judgment, and that the grant of general appellate jurisdiction, now contained in 28 U.S.C. § 1291, does not authorize such a federal appeal. DiBella v. United States, 369 U.S. 121, 130, 82 S.Ct. 654, 659, 7 L.Ed.2d 614 (1962); Carroll v. United States, 354 U.S. 394, 400-403, 77 S.Ct. 1332, 1336-1338, 1 L.Ed.2d 1442 (1957). See Will v. United States, 389 U.S. 90, 96-97, 88 S.Ct. 269, 274-275, 19 L.Ed.2d 305 (1967); United States v. Burroughs, 289 U.S. 159, 161, 53 S.Ct. 574, 575, 77 L.Ed. 1096 (1933).
23
Respondent contends that Sanges and its progeny must be read to foreclose a criminal appeal in federal court by any governmental entity unless the appellate right derives from an express federal statute. We do not believe that Sanges is to be so broadly construed. Sanges holds simply that the federal sovereign may not subject one of its citizens to continued federal prosecution in its own courts where it has not been expressly permitted to do so under federal law. 144 U.S., at 323, 12 S.Ct., at 613.23 Our continuing refusal to assume that the United States possesses any inherent right to appeal reflects an abiding concern to check the Federal Government's possible misuse of its enormous prosecutorial powers. By insisting that Congress speak with a clear voice when extending to the Executive a right to expand criminal prosecutions, Sanges and its subsequent applications have placed the responsibility for such assertions of authority over citizens in the democratically elected Legislature where it belongs. Congress has properly assumed this responsibility by first defining, and then broadening and clarifying, the Federal Government's right to appeal an adverse criminal judgment.24
24
The concern to restrict prosecuting authority to express congressional grants, however, does not justify a requirement of express authorization by Congress when the sovereign seeking to appeal is a State rather than the Federal Government. Nothing in the language or logic of the Sanges opinion contains any suggestion of that kind. Nor should such an intimation be read into the Court's subsequent decisions adhering to Sanges' principle.25 For the purposes of congressional restriction of prosecution by the sovereign, the Federal Executive, not the State, is the relevant sovereign. The decision to limit or extend a State's appellate authority is a matter of state law within constitutional constraints. If a State wishes to empower its prosecutors to pursue a criminal appeal under certain conditions, it is free so to provide, limited only by the guarantees afforded the criminal defendant under the Constitution. Requiring Congress also to address explicitly the State's authority contributes nothing to the policy concerns that prompt the requirement of express sovereign action. There is, in short, no basis for concluding that Congress' neglect specifically to authorize a state appeal in a removed criminal proceeding impairs the appellate rights of the state prosecutor acting to enforce his separate body of criminal law.
25
In sum, the Court's prior decisions restricting the availability of § 1291 in a criminal context flow from a tradition of requiring that a prosecutorial appeal be affirmatively sanctioned by the same sovereign that sponsors the prosecution. The intention to restrict sovereign power in this area is adequately addressed when the legislature responsible for that power has spoken in express terms, or when a legislative enactment has been authoritatively construed by the sovereign's highest court. We conclude that § 1291 neither compels nor forecloses appellate jurisdiction in an appeal taken by a State as prosecutor. Instead, the provision permits a State to appeal if it is authorized to do so by state law. Petitioner Arizona can rely on § 1291 combined with appellate authorization from the Arizona Legislature.26 In the circumstances of this case, no more is required.27
III
26
We hold that in a criminal proceeding removed to federal court, a State may appeal under § 1291 from an adverse judgment if statutory authority to seek such review is conferred by state law. Because Arizona law conferred such authority here, and because removal does not alter the nature of the authority conferred, the State must be allowed to appeal from the post-guilty-verdict judgment of acquittal. Accordingly, the judgment of the United States Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
27
It is so ordered.
28
Justice STEVENS, concurring.
29
There is a distinction between a court's power to accept an appeal and an executive's power to prosecute an appeal. The question whether the United States Court of Appeals in this case had jurisdiction to entertain the appeal is a federal question. I agree with the Court's conclusion that such jurisdiction is conferred by 28 U.S.C. § 1291.*
30
The question whether the prosecutor had authority to prosecute an appeal is, I believe, a question controlled by the law of the sovereign that the prosecutor represents. I therefore agree with the Court's conclusion that the holding in United States v. Sanges, 144 U.S. 310, 12 S.Ct. 609, 36 L.Ed. 445, to the effect that a federal prosecutor had no such authority in 1892, is not controlling in this case. The controlling authority is conferred by Arizona, which does empower its prosecutors to appeal in the situation presented here.
31
Although this simple analysis persuades me to join the Court's opinion, I write separately to emphasize that it lends no support to an argument that 18 U.S.C. § 3731 or any other federal statute would authorize an appeal by a state prosecutor.
32
Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.
33
United States v. Sanges, 144 U.S. 310, 12 S.Ct. 609, 36 L.Ed. 445 (1892), announced the general rule that governments may not appeal in criminal cases in the federal courts in the absence of express statutory authority. Finding, inter alia, that the predecessor to 28 U.S.C. § 1291 was not sufficiently express,1 Sanges refused to allow an appeal by the Federal Government. Today, however, the Court intertwines § 1291 with an Arizona statute authorizing writs of certiorari on behalf of the State in criminal cases in the Arizona courts to make § 1291 "sufficiently express" to authorize a State to appeal from a federal district court's judgment of acquittal. Because this result flouts Congress' authority to regulate the jurisdiction of the lower federal courts, I respectfully dissent.
34
* The Court proposes the novel interpretation of Sanges and its progeny as "flow[ing] from a tradition of requiring that a prosecutorial appeal be affirmatively sanctioned by the same sovereign that sponsors the prosecution." Ante, at 249.2 I find this reading of the Sanges rule inaccurate: in my view, Sanges plainly requires express authorization from the legislative body controlling federal-court jurisdiction for all government appeals in criminal cases in the federal courts.3 The Court stated that the express authorization must be made by the legislature "acting within its constitutional authority." 144 U.S., at 318, 12 S.Ct., at 612. Since Congress is the only entity constitutionally empowered to grant express authority for government appeals in the federal courts, the Sanges principle necessarily confines our inquiry to whether there is express authorization in federal statutes controlling criminal appeals by the States in federal court. Therefore, the Court's finding that Arizona, the sovereign sponsoring the prosecution in the instant case, has sanctioned prosecutorial appeals in its courts is irrelevant to the question of federal appellate jurisdiction here. Focusing as we must on federal statutes, I find the pertinent federal statutes wholly barren of any express authorization of criminal appeals by States to the federal courts of appeals.4 Today, as in 1892, § 1291 "says nothing as to the party by whom the writ of error may be brought, and cannot therefore be presumed to have been intended to confer upon the government the right to bring [an appeal]." Id., at 323, 12 S.Ct., at 613.
35
This conclusion is supported by Maryland v. Soper, 270 U.S. 9, 46 S.Ct. 185, 70 L.Ed. 449 (1926), which relied on the Sanges rule to conclude that a State has no right of appeal from a decision of a federal district court in a criminal case removed from state court. In Soper, four United States prohibition agents and their chauffeur were indicted for murder in the State of Maryland. The defendants petitioned the Federal District Court for removal, averring that they were federal agents5 and that their acts "were done in the discharge of their official duties as prohibition agents." 270 U.S., at 22, 46 S.Ct., at 187. The District Court granted defendants' petition and the State subsequently applied to this Court for a writ of mandamus to overturn the removal order. Over respondent's objection that mandamus did not lie to correct an erroneous removal order, this Court granted the writ. Observing that "there should be a more liberal use of mandamus [in removal of State criminal cases] than in removal of civil cases," id., at 29, 46 S.Ct., at 189, the Court specifically noted:
36
"Except by issue of mandamus, [the State] is without an opportunity to invoke the decision of this Court upon the issue it would raise. The order of the United States District Judge refusing to remand is not open to review on a writ of error, and a judgment of acquittal in that court is final. United States v. Sanges, 144 U.S. 310 [12 S.Ct. 609, 36 L.Ed. 445]. . . ." Id., at 30, 46 S.Ct., at 189 (emphasis added).
37
Significantly, the predecessor to § 1291 was available then, as it is now, to support an argument that the State had a right of appeal. Nonetheless, on the strength of Sanges, the Court concluded that a judgment of acquittal was unreviewable6 because there was no express federal statute authorizing an appeal by the State. See Government of Virgin Islands v. Hamilton, 475 F.2d 529, 530-531 (CA3 1973).
38
The Court attempts to deflect the force of this precedent by interpreting Maryland v. Soper as merely "reflect[ing] an awareness of controlling double jeopardy doctrine, which at the time was thought to protect a defendant once a judgment of acquittal had been entered in federal court." Ante, at 248, n. 25. But this is a clearly incorrect reading, for it ignores the fact that at the time Maryland v. Soper was decided, the prohibition contained in the Fifth Amendment's Double Jeopardy Clause was applicable only against the Federal Government in federal prosecutions, and not against state governments in state prosecutions. See Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937).7 It was not until 32 years later that Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), overruled Palko and held that the Double Jeopardy Clause was applicable against the States. Since the Double Jeopardy Clause did not apply to prosecutions initiated by the States, and state substantive law governed criminal cases removed to federal district court, Tennessee v. Davis, 100 U.S. 257, 271, 25 L.Ed. 648 (1880), the Court's suggestion that the statement in Maryland v. Soper, referred to double jeopardy limitations is plainly unfounded.
II
39
Even on its own terms the Court's opinion is unpersuasive. The Court concludes that appeals by the States are permissible under § 1291 "when the legislature responsible for that power has spoken in express terms, or when a legislative enactment has been authoritatively construed by the sovereign's highest court." Ante, at 249. The Arizona statute supposedly authorizing appeal, however, is anything but "express." That statute provides:
40
"The writ of certiorari may be granted by the supreme and superior courts or by any judge thereof, in all cases when an inferior tribunal, board or officer, exercising judicial functions, has exceeded its jurisdiction and there is no appeal, nor, in the judgment of the court, a plain, speedy and adequate remedy." Ariz.Rev.Stat.Ann. § 12-2001 (1956) (emphasis added).
41
The State may obtain a writ of certiorari by filing a petition for special action pursuant to Rule 4, Rules of Procedure for Special Actions, vol. 17A, Ariz.Rev.Stat.Ann. (1973).
42
If it be true the State's petition for review "has been routinely granted" by the appellate courts, ante, at 240, this hardly qualifies as an authoritative construction by the State's highest court that the statute itself authorizes review in every case. The Court has failed to cite a single precedent in which the Arizona Supreme Court has investigated the intent of the state legislature in passing the statute authorizing prosecutorial appeals. More importantly, by relying on state-court decisions allowing certiorari review on behalf of the State, the Court has undercut the only rationale justifying today's result. The Court reasons:
43
"Our continuing refusal to assume that the United States possesses any inherent right to appeal reflects an abiding concern to check the Federal Government's possible misuse of its enormous prosecutorial powers. By insisting that Congress speak with a clear voice when extending to the Executive a right to expand criminal prosecutions, Sanges and its subsequent applications have placed the responsibility for such assertions of authority over citizens in the democratically elected legislature where it belongs." Ante, at 247.
44
It is difficult to understand how the Court's insistence that the democratically elected legislature speak with a clear voice can be satisfied without interpretive decisions of the State's highest court holding that the state legislature has done so in the case of § 12-2001. Indeed, the Court's application of a less stringent requirement of clarity in the case of state legislation than in the case of federal legislation, see, e. g., United States v. Martin Linen Supply Co., 430 U.S. 564, 568, 97 S.Ct. 1349, 1352, 51 L.Ed.2d 642 (1977) ("express congressional authorization"); United States v. Wilson, 420 U.S. 332, 336, 95 S.Ct. 1013, 1018, 43 L.Ed.2d 232 (1975) ("express statutory authority"); DiBella v. United States, 369 U.S. 121, 130, 82 S.Ct. 654, 659, 7 L.Ed.2d 614 (1962) ("expressly authorized by statute"); Carroll v. United States, 354 U.S. 394, 399, 77 S.Ct. 1332, 1335, 1 L.Ed.2d 1442 (1957) ("expressly conferred by statute"); United States v. Burroughs, 289 U.S. 159, 161, 53 S.Ct. 574, 575, 77 L.Ed. 1096 (1933) ("express statutory authority"); United States v. Sanges, 144 U.S., at 318, 12 S.Ct., at 612 ("statute expressly giving the right"), is surely unprecedented. The Court has offered no justification for its more expansive treatment of state statutes. Indeed, since the Court has convinced itself that there are "express" provisions in the Arizona statute, I see no logical barrier—under the Court's novel determination of what is "express"—to a construction of § 1291 as an express grant of authority for state appeals, without reference to state statutes.
III
45
The Court has noted time and again that appeals by the government in criminal cases are exceptional and not favored. E. g., Will v. United States, 389 U.S. 90, 96-97, 88 S.Ct. 269, 274-275, 19 L.Ed.2d 305 (1967); DiBella v. United States, supra, 369 U.S., at 130, 82 S.Ct., at 659; Carroll v. United States, supra, 354 U.S., at 400, 77 S.Ct., at 1336. I would have thought, therefore, that the Court would be especially careful before concluding that Congress intended that § 1291 would authorize criminal appeals by the State in removal cases.8 See Will v. United States, supra, 389 U.S., at 96-97, 88 S.Ct., at 274-275 ("the Criminal Appeals Act is strictly construed against the Government's right of appeal"). Instead, the Court has abandoned its traditional presumption in this area to imply—on the strength of its own policy analysis—authorization for a state appeal in a criminal case where no federal statute expressly authorizes one. But
46
"[i]t is axiomatic . . . that the existence of appellate jurisdiction in a specific federal court over a given type of case is dependent upon authority expressly conferred by statute. And since the jurisdictional statutes prevailing at any given time are so much a product of the whole history of both growth and limitation of federal-court jurisdiction . . ., they have always been interpreted in the light of that history and of the axiom that clear statutory mandate must exist to found jurisdiction." Carroll v. United States, supra, 354 U.S., at 399, 77 S.Ct., at 1336.
47
It is hard to imagine a federal "statutory mandate" for government appeals that is less clear than one that fluctuates depending on state law.
48
This case admittedly presents an anomalous circumstance,9 and concededly there is great temptation to correct it. But because I believe it is for Congress, not the courts, to make changes in federal jurisdictional statutes, cf. Will v. United States, supra, 389 U.S., at 97, n. 5, 88 S.Ct., at 274, n. 5, I respectfully dissent.
1
Sweetwater Pass is located about 29 miles southeast of Ajo, Ariz. The Pass is bounded on the west by the Organ Pipe Cactus National Monument, and on the east by the Papago Indian Reservation. It is undisputed that the events in question occurred on land owned by the Federal Government.
2
Under 8 U.S.C. § 1325, an alien not previously convicted of illegal entry who enters the United States at an improper time or place is guilty of a misdemeanor.
3
According to testimony at trial, the Mexicans were unarmed and were seeking employment in this country. Tr. 15, 23.
4
The statute then read in pertinent part:
"A. A person who commits assault upon the person of another with a deadly weapon or instrument . . . shall be punished by imprisonment in the state prison for not less than one nor more than ten years, by a fine not exceeding five thousand dollars, or both.
"B. A crime as prescribed by the terms of subsection A, committed by a person armed with a gun or other deadly weapon, is punishable by imprisonment in the state prison, for the first offense, for not less than five years . . . and in no case . . . shall the person convicted be eligible for suspension or commutation of sentence, probation, pardon or parole until such person has served the minimum sentence imposed."
Section 13-249 was repealed by 1977 Ariz.Sess.Laws, ch. 142, § 4, effective Oct. 1, 1978, and replaced by other legislation. See Ariz.Rev.Stat.Ann. § 13-1204 (1978).
5
Title 28 U.S.C. § 1442(a)(1) provides:
"(a) A civil action or criminal prosecution commenced in a State court against any one of the following persons may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending:
"(1) Any officer of the United States or any agency thereof, or person acting under him, for any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue."
6
In his motion in arrest of judgment under Rule 34, respondent maintained that the State of Arizona, and therefore the United States District Court on removal, had no criminal jurisdiction over the federal land where the shooting occurred. Respondent further contended that any attempt to prosecute him under a state statute unlawfully interfered with the exclusively federal interest in regulating immigration.
7
The court further concluded that the federal interest in enforcement of the immigration laws did not pre-empt the applicability of state criminal law in this instance. 445 F.Supp., at 1125-1127.
8
Arizona argued that the District Court lacked jurisdiction to act on a Rule 29(c) motion 11 months after a guilty verdict, in violation of the Rule's 7-day requirement. Brief for Appellant in No. 77-3453 (CA9), pp. 8-11. The State also contended that the District Court had misapplied relevant immunity law and that the evidence was more than sufficient to sustain the jury verdict. Id., at 17-24.
9
Section 3731 provides in pertinent part:
"In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution."
10
The court reasoned that even if, in a removed criminal prosecution, the State of Arizona had the same right of appeal under 18 U.S.C. § 3731 as is accorded the United States in a federal prosecution, the judgment of acquittal nonetheless was unreviewable on double jeopardy grounds. App. to Pet. for Cert. 39a-40a.
11
Title 28 U.S.C. § 1291 provides:
"The courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, and the District Court of the Virgin Islands, except where a direct review may be had in the Supreme Court."
12
Having found jurisdiction, the dissent concluded on the merits that the judgment of acquittal should be reversed. 608 F.2d, at 1205. The Court of Appeals' majority, however, did not reach the merits. In view of the posture of the case, we also intimate no view on the merits. Neither do we have any occasion now to decide whether the instant appeal would be barred under the Double Jeopardy Clause of the Fifth Amendment, which is enforceable against the States through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 793-796, 89 S.Ct. 2056, 2061-2063, 23 L.Ed.2d 707 (1969). That question was not decided by the Court of Appeals and the parties have not raised it before this Court. See Tr. of Oral Arg. 33.
13
Section 12-2001 reads:
"The writ of certiorari may be granted by the supreme and superior courts or by any judge thereof, in all cases when an inferior tribunal, board or officer, exercising judicial functions, has exceeded its jurisdiction and there is no appeal, nor, in the judgment of the court, a plain, speedy and adequate remedy."
A writ of certiorari may be obtained by filing a petition for special action, pursuant to Rule 4, Rules of Procedure for Special Actions, vol. 17A, Ariz.Rev.Stat.Ann. (1973). The certiorari provision itself speaks of review to determine whether the lower court has exceeded its jurisdiction, but as consistently construed by the Arizona Supreme Court, the statute also authorizes review for abuse of discretion. State ex rel. Hyder v. Superior Court (Clifton, Real Party in Interest), 128 Ariz. 216, 222, 624 P.2d 1264, 1270 (1981). State ex rel. Dawson v. Superior Court, 112 Ariz. 123, 538 P.2d 397 (1975); State ex rel. Ronan v. Superior Court, 95 Ariz. 319, 322, 390 P.2d 109, 111 (1964); State ex rel. Mahoney v. Stevens, 79 Ariz. 298, 300, 288 P.2d 1077, 1078 (1955). See Rule 3, Rules of Procedure for Special Actions, vol. 17A, Ariz.Rev.Stat.Ann. (1973).
14
The dissent maintains that this longstanding application of the statute, never questioned by the Arizona Legislature, is an insufficiently clear expression of state law. But it is obvious that in the precise circumstances of this case, the Arizona Legislature and the Arizona Supreme Court have authorized the appellate review requested by the State. The absence of a statutory formula providing for automatic appeal by the State in every criminal prosecution does not alter this fact.
A separate Arizona statute permits the State to appeal from an "order made after judgment affecting the substantial rights of the state." Ariz.Rev.Stat.Ann. § 13-4032.5 (1978), formerly § 13-1712.5. Although there is little case law interpreting this provision, it may furnish an additional basis for appellate review here. See generally, State ex rel. Hyder v. Superior Court (Clifton Real Party in Interest), 128 Ariz., at 220, 624 P.2d, at 1268; State v. Wynn, 114 Ariz. 561, 563, 562 P.2d 734, 736 (App.1977).
15
In concluding that federal law controls all aspects of a case before the federal court under § 1442(a)(1), the Court of Appeals relied on several decisions, none of which involved proceedings removed from state to federal court. See D'Oench, Duhme & Co. v. Federal Deposit Ins. Corp., 315 U.S. 447, 62 S.Ct. 676, 86 L.Ed. 956 (1942); Deitrick v. Greaney, 309 U.S. 190, 60 S.Ct. 480, 84 L.Ed. 694 (1940); Board of Comm'rs v. United States, 308 U.S. 343, 60 S.Ct. 285, 84 L.Ed. 313 (1939); United States v. Crain, 589 F.2d 996 (CA9 1979). Moreover, in each of these cases federal law was deemed controlling because the rights that the complainant sought to protect or enforce were created by federal statutes. In contrast, petitioner here seeks to enforce a state statute.
16
This Court elsewhere has reviewed the "long history" of the federal-officer removal statute. Willingham v. Morgan, 395 U.S. 402, 405-406, 89 S.Ct. 1813, 1815-1816, 23 L.Ed.2d 396 (1969). It has been 100 years since the Court in Tennessee v. Davis, 100 U.S. 257, 25 L.Ed. 648 (1880), first emphasized the need to safeguard the exercise of legitimate federal authority:
"[The Federal Government] can act only through its officers and agents, and they must act within the States. If, when thus acting, and within the scope of their authority, those officers can be arrested and brought to trial in a State court, for an alleged offense against the law of the State, yet warranted by the Federal authority they possess, and if the general government is powerless to interfere at once for their protection,—if their protection must be left to the action of the State court,—the operations of the general government may at any time be arrested at the will of one of its members." Id., at 263.
17
In the area of general civil removals, it is well settled that if the state court lacks jurisdiction over the subject matter or the parties, the federal court acquires none upon removal, even though the federal court would have had jurisdiction if the suit had originated there. Freeman v. Bee Machine Co., 319 U.S. 448, 449, 63 S.Ct. 1146, 1147, 87 L.Ed. 1509 (1943); Minnesota v. United States, 305 U.S. 382, 389, 59 S.Ct. 292, 295, 83 L.Ed. 235 (1939); Lambert Run Coal Co. v. Baltimore & Ohio R. Co., 258 U.S. 377, 382, 42 S.Ct. 349, 351, 66 L.Ed. 671 (1922). This principle of derivative jurisdiction is instructive where, as here, relevant state-court jurisdiction is found to exist and the question is whether the federal court in effect loses such jurisdiction as a result of removal. Of course, because appellate rather than original jurisdiction is at issue, the analogy is not perfect. See Subpart B, infra.
18
By enacting the current version of 18 U.S.C. § 3731, see 84 Stat. 1890, Congress manifested an intent to remove all statutory barriers to a criminal appeal taken by the Federal Government. United States v. Wilson, 420 U.S. 332, 337, 95 S.Ct. 1013, 1018, 43 L.Ed.2d 232 (1975). Petitioner argues that this intent should inform our deliberations concerning a state prosecution's appellate rights upon removal to federal court. A proper respect for the State's interest in enforcing its own criminal laws, however, counsels against that conclusion. While the policy announced in § 3731 might perhaps be viewed as indicative of congressional support for any prosecutor's appeal in federal court, the statute does not speak in such terms. Moreover, if § 3731 is construed to extend broad appellate rights to a State that does not authorize comparable rights under state law, one result might be to inhibit the exercise of the removal right, contrary to established federal policy. In light of these uncertainties, and our resolution of the case on other grounds, we do not reach the question whether § 3731 applies to the States.
19
Congress from the very beginning provided that final civil judgments were reviewable as a matter of statutory right. Judiciary Act of Sept. 24, 1789, § 22, 1 Stat. 84. Later, when the growing volume of appellate business threatened to overwhelm this Court's docket, Congress acted to establish circuit courts of appeals. Judiciary Act of Mar. 3, 1891, 26 Stat. 826. See, e. g., H.R.Rep. No. 1295, 51st Cong., 1st Sess., 3-4 (1890); 21 Cong.Rec. 10220-10222 (1890) (remarks of Sen. Evarts). While preserving, under § 5 of the 1891 Act, 26 Stat. 827, several designated categories of cases under this Court's direct appellate jurisdiction, the Act, in § 6, conferred on the new intermediate appellate court the power to review and revise final judgments in all other cases, civil and criminal, "unless otherwise provided by law." 26 Stat. 828. Through a succession of recodifications and technical amendments, § 6 of the 1891 Act has been carried forward as 28 U.S.C. § 1291.
20
There is disagreement among scholars as to whether, at common law in England, the prosecution could appeal. See R. Moreland, Modern Criminal Procedure 273 (1959); L. Orfield, Criminal Appeals in America 57 (1939); Miller, Appeals by the State in Criminal Cases, 36 Yale L.J. 486, 491 (1927); Note, Criminal Procedure—Right of State to Appeal, 45 Ky.L.J. 628, 629 (1957). See generally United States v. Sanges, 144 U.S. 310, 312, 12 S.Ct. 609, 610, 36 L.Ed. 445 (1892).
21
See United States v. Sanges, 144 U.S., at 313-318, 12 S.Ct., at 610-612, and cases cited therein. See also L. Orfield, Criminal Appeals in America 58 (1939); Comment, State Appeals in Criminal Cases, 32 Tenn.L.Rev. 449, 450-451 (1965).
22
In Sanges, the Government sought review of a lower court judgment quashing the federal indictment. The Court determined that no provision of the new 1891 Judiciary Act had conferred upon the United States the right to appeal a criminal judgment. 144 U.S., at 322-323, 12 S.Ct., at 613.
23
After finding no such express permission in the federal statute there at issue, the Court concluded as follows:
"In none of the provisions of this act, defining the appellate jurisdiction, either of this court, or of the Circuit Court of Appeals, is there any indication of an intention to confer upon the United States the right to bring up a criminal case of any grade after judgment below in favor of the defendant. It is impossible to presume an intention on the part of Congress to make so serious and far-reaching an innovation in the criminal jurisprudence of the United States." Id., at 323, 12 S.Ct., at 613.
24
At least partially in response to the Sanges decision, Congress passed the Criminal Appeals Act of Mar. 2, 1907, ch. 2564, 34 Stat. 1246, conferring limited rights of appeal on the United States in criminal cases. See, e. g., H.R.Rep. No. 2119, 59th Cong., 1st Sess., 3 (1906); S.Rep. No. 5650, 59th Cong., 2d Sess., 1 (1907). Following this Court's opinion in United States v. Sisson, 399 U.S. 267, 90 S.Ct. 2117, 26 L.Ed.2d 608 (1970), Congress broadened the Federal Government's right of appeal to its current status under 18 U.S.C. § 3731. 84 Stat. 1890.
25
Respondent and the dissent unsuccessfully attempt to derive support from the decision in Maryland v. Soper, 270 U.S. 9, 46 S.Ct. 185, 70 L.Ed. 449 (1926). There, this Court awarded Maryland mandamus relief after the State had challenged the legality of removing a particular criminal prosecution to federal court. In general, this decision supports the ability of a State to secure review in a removed criminal prosecution. Moreover, the decision held simply that mandamus was appropriate in the absence of any other means of reviewing the District Court's order refusing remand. Respondent and the dissent seek to rely on the Court's further statement in Soper, 270 U.S., at 30, 46 S.Ct., at 189, that once a criminal action is removed to federal court "a judgment of acquittal in that court is final. United States v. Sanges, 144 U.S. 310 [12 S.Ct. 609, 36 L.Ed. 445]." Although this statement is merely dictum, to respondent and the dissent it implies that a state prosecutor lacks congressional authorization to take an appeal in federal court. We, however, adopt what we view as a more sensible reading, namely, that the Court's statement reflects an awareness of controlling double jeopardy doctrine, which at the time was thought to protect a defendant once a judgment of acquittal had been entered in federal court. See, e. g., Kepner v. United States, 195 U.S. 100, 130, 133, 24 S.Ct. 797, 805, 806, 49 L.Ed. 114 (1904); United States v. Ball, 163 U.S. 662, 671, 16 S.Ct. 1192, 1195, 41 L.Ed. 300 (1896). But see United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975). Since this Court had earlier assumed without deciding that the Double Jeopardy Clause of the Fifth Amendment applied to state prosecutions, see Dreyer v. Illinois, 187 U.S. 71, 85-86, 23 S.Ct. 28, 32-33, 47 L.Ed. 79 (1902), it would not have been unreasonable for a state court or prosecutor to make the same assumption in 1926. Of course, the decision in Soper could hardly reflect awareness that 11 years later the Court would decline to extend Fifth Amendment double jeopardy protection in prosecutions brought by a State. See Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937), overruled by Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).
26
The relevance of state authorization to our jurisdictional determination under 28 U.S.C. § 1291 does not affect the exclusively federal character of the forms of review available once the state sovereign enters federal court. Thus, while Arizona's authorization of appellate review by certiorari has no precise analogue in the federal system, it is necessary to choose from among the available forms of federal review. As noted above, Arizona law authorizing review for abuse of discretion is administered in a sufficiently routine manner as to be more akin to ordinary federal appellate review than to the federal mandamus remedy reserved for extraordinary circumstances. We express no view regarding the correct federal analogue for a State with a right of review that is more limited than that afforded by Arizona law.
27
We have no occasion to address the situation where state law does not authorize the review sought by its prosecutor in federal court. We note, however, that in the majority of States the prosecution possesses at least some rights to appeal from an adverse judgment in a criminal case. See Note, Limited Right of Appeal for the State, 14 Hous.L.Rev. 735, 737 (1977). Similarly, because we find that appellate jurisdiction exists under § 1291 combined with relevant Arizona law, we do not decide the applicability of § 3731 to the States. See n. 18, supra.
The dissent suggests that this case presents an anomalous circumstance.
But an anomaly is created only if we accept that Congress denied a State the right, established under state law, to prosecute an appeal when the proceeding is removed to federal court.
*
Title 28 U.S.C. § 1291 provides in part:
"The courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States. . . ."
1
This statute, the Judiciary Act of 1891, provided that "appeals or writs of error may be taken from the district courts or from the existing circuit courts direct to the Supreme Court . . . [i]n any case that involves the construction or application of the Constitution of the United States," 26 Stat. 827-828, and to the circuit courts of appeal from final decisions of the district courts "in all cases other than those provided for in the preceding section of this act, unless otherwise provided for by law," id., at 828.
2
The Court also finds that allowing an appeal would not frustrate the removal statute's primary purpose of providing an impartial setting in which a federal official's immunity defense may be considered. Ante, at 241-242. But the Court candidly admits that this alone would not establish the State's right to appeal in federal court. Ante, at 244.
3
Because Sanges dealt with a Government appeal to this Court, see n. 1, supra, the Court observed that "[t]he appellate jurisdiction of [this Court] rests wholly on the acts of Congress." 144 U.S., at 319, 12 S.Ct., at 612.
4
Title 18 U.S.C. § 3731, authorizing criminal appeals from federal district courts by the United States, obviously cannot be read to give that authority to state prosecutors in removal cases.
5
The petition claimed that the chauffeur was assisting the four agents under the authority of the Prohibition Director.
6
The State of Maryland had conceded as much in its argument in its brief that, "[s]hould the final judgment be an acquittal, in whole or in part, the State could not have a writ of error to review it. United States v. Sanges, 144 U.S. 310, 12 S.Ct. 609, 36 L.Ed. 445. Unless this Court entertains the petition for mandamus, the State is without any redress." See Maryland v. Soper, 270 U.S., at 12, 46 S.Ct. 185.
7
In Palko, the Court rejected the broad thesis that "[w]hatever would be a violation of the original bill of rights (Amendments I to VIII) if done by the federal government is now equally unlawful by force of the Fourteenth Amendment if done by a state." 302 U.S., at 323, 58 S.Ct., at 151. Observing that "[t]o retry a defendant, though under one indictment and only one, subjects him, it is said, to double jeopardy in violation of the Fifth Amendment, if the prosecution is one on behalf of the United States," the Court declined to adopt the argument that "there is a denial of life or liberty without due process of law, if the prosecution is one on behalf of the People of a State." Id., at 322, 58 S.Ct., at 150.
8
Indeed, until Congress amended 18 U.S.C. § 3731 in 1971, no appeal would have been permitted the United States in a prosecution similar to the instant case. The Court's opinion today introduces the anomaly that § 1291 could be interpreted to permit appeals by state, but not by federal, prosecutors in federal court. Surely it is more reasonable to read § 1291 as not authorizing government appeals in any criminal case, whether federal or state.
9
I suspect that Congress has never considered the issue presented in this case. The Court does not suggest the contrary.
| 89
|
451 U.S. 156
101 S.Ct. 1614
68 L.Ed.2d 1
SCINDIA STEAM NAVIGATION CO., LTD., Petitioner,v.Lauro DE LOS SANTOS et al.
No. 79-512.
Argued Dec. 1, 1980.
Decided April 21, 1981.
Syllabus
Respondent longshoreman, an employee of respondent stevedore who was engaged by petitioner shipowner to load its vessel, was injured while working in the ship's hold when he was struck by cargo that fell from a pallet being held in suspension by a winch that was part of the ship's gear and was being operated by another longshoreman. The winch's braking mechanism allegedly had been malfunctioning for two days preceding the day of the accident, but there was a dispute as to whether the cargo fell because the suspended pallet was swinging back and forth or because the braking mechanism slipped while the pallet was suspended, and as to whether the shipowner knew or should have known of the alleged condition of the winch. Respondent longshoreman brought suit against petitioner under the provision of the Longshoremen's and Harbor Workers' Compensation Act as amended in 1972, 33 U.S.C. § 905(b), which states that a longshoreman injured "by the negligence of a vessel . . . may bring an action against such vessel as a third party" and that the vessel's liability "shall not be based upon the warranty of seaworthiness." The District Court granted summary judgment for petitioner, holding that under the negligence standards governing liability under § 905(b), a shipowner is not liable for dangerous conditions created by the stevedore's negligence while the stevedore is in exclusive control of the work, and that even if petitioner knew or should have known of the defective winch, a shipowner has no duty to warn the stevedore or his employees of open and obvious defects. The Court of Appeals reversed, holding that under the proper standard, petitioner had a duty to continue to inspect conditions of the vessel even if it had been turned over to the stevedore in safe condition, and that if dangerous conditions subsequently developed, in light of the vessel's practical opportunities to discover and remedy the dangers, failure to do so could be negligence. Concluding that there were several material facts in dispute that were for a jury to resolve, the court remanded the case for further proceedings.
Held :
1. A shipowner has a duty to have the ship and its equipment in such condition that the stevedore may carry on its cargo operations with reasonable safety; and if the shipowner fails at least to warn the stevedore of hidden danger which was known to the shipowner, or should have been known to him in the exercise of reasonable care, he is liable if his negligence causes injury to a longshoreman. But once the stevedore's cargo operations have begun, absent contract provision, positive law, or custom to the contrary the shipowner has no general duty under § 905(b) by way of supervision or inspection to exercise reasonable care to discover dangerous conditions that develop within the confines of the cargo operations that are assigned to the stevedore. Thus, the shipowner is not liable to the longshoremen for injuries caused by dangers unknown to the owner and about which he had no duty to inform himself. This conclusion is consistent with Congress' intent under the 1972 Amendments of the Act to foreclose the shipowner's previous faultless liability based on a theory of unseaworthiness or non-delegable duty. The shipowner, within limits, is entitled to rely on the stevedore, and owes no duty to the longshoreman to inspect or supervise cargo operations. Pp. 166-172.
2. However, there are circumstances in which the shipowner has a duty to act where a danger to longshoremen arises from the malfunctioning of the ship's gear being used in cargo operations. In this case, it is possible that the stevedore's judgment in continuing to use the winch despite its malfunctioning was so obviously improvident that petitioner, if it knew of the defect and that the stevedore was continuing to use it, should have realized the winch presented an unreasonable risk of harm to the longshoremen, and that in such circumstances it had a duty to intervene and repair the winch. The same would be true if the defect existed from the outset and petitioner must be deemed to have been aware of its condition. The stevedore's duties under positive law to provide a safe workplace and to use safeguards with respect to the ship's gear, as well as the vessel's justifiable expectations that those duties will be performed, are relevant in determining whether the shipowner has breached its duty. But an equally necessary inquiry is whether the pertinent statutes, regulations, or custom place or assume a continuing duty on the vessel to repair defective ship's gear being used by the stevedore in the cargo operation. Here, the record supports the Court of Appeals' holding that there was a triable issue as to whether the shipowner had actual knowledge of the alleged failure in the winch's braking mechanism or was chargeable with knowledge because the winch was defective from the outset. Thus, the District Court erred in granting summary judgment, and the case should be returned to it and, if necessary, tried to a jury under appropriate instructions. Pp. 172-179.
598 F.2d 480, affirmed and remanded.
Argued by Graydon S. Staring, San Francisco, for petitioner.
James A. Grutz, Seattle, Wash., for respondents.
Justice WHITE delivered the opinion of the Court.
1
Respondent Santos, a longshoreman and an employee of respondent Seattle Stevedore Co., was injured while he was helping load the M/S Jalaratna, a vessel owned by petitioner Scindia Steam Navigation Co., Ltd. He later brought an action against Scindia pursuant to § 5(b) of the Longshoremen's and Harbor Workers' Compensation Act (Act), as amended in 1972,1 which, as set forth in 33 U.S.C. § 905(b), provides in relevant part as follows:
2
"In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 933 of this title, and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void. . . . The liability of the vessel under this subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred. The remedy provided in this subsection shall be exclusive of all other remedies against the vessel except remedies available under this chapter."2
3
The District Court granted petitioner's motion for summary judgment;3 the Court of Appeals, disagreeing with the District Court on both the facts and the law, reversed and remanded for further proceedings. 598 F.2d 480 (CA9 1979). We granted certiorari, 446 U.S. 934, 100 S.Ct. 2150, 64 L.Ed.2d 786, because the Courts of Appeals are in considerable disagreement as to the meaning and application of § 905(b).4
4
* For present purposes, we take the facts from the opinion of the Court of Appeals, which properly viewed the case in the light most favorable to Santos, against whom summary judgment had been granted.
5
On December 10, 1972, Seattle Stevedore Co., pursuant to its undertaking with Scindia, was engaged in loading a cargo of wheat into a hold of the M/S Jalaratna. A winch, part of the ship's gear, was being used to lower wooden pallets, each containing seventy 50-pound sacks of wheat, into the hold. Because of the location of the winch controls, the longshoreman operator relied on the hatch tender, another longshoreman , to signal him when to start and stop the winch while lowering a pallet of sacks into the hold. Santos and three other longshoremen were in the hold. Their task was to remove sacks of wheat from the pallet and properly stow them.
6
On the day of the accident, as it had for the two previous days, the braking mechanism of the winch was malfunctioning in that it would not quickly stop the descent of a loaded pallet, which would continue to drop for several feet before coming to a stop. At the time important here, while a pallet was being lowered, the hatch tender signaled the winch operator to stop the descent of the load. The brake was applied, but the pallet did not stop before striking a pallet jack5 with some force and spilling about half the sacks of wheat from the pallet. The hatch tender signaled the operator to raise the pallet about 15 feet and, believing that the remaining sacks on the pallet were secure enough not to fall, permitted Santos and the other men to clear away the spilled sacks then lying below in the hold. Some minutes later, however, more sacks fell from the pallet, striking and injuring Santos. There was dispute as to whether the additional sacks fell because the suspended pallet was swinging back and forth or because while the pallet was suspended the braking mechanism slipped on three or four occasions, each time requiring the operator to raise it again, thus working loose the additional sacks that fell on Santos.
7
Relying on the legislative history of the 1972 Amendments to the Act, the District Court held that the negligence standards governing the longshoreman's action against a shipowner under § 905(b) are best expressed in Restatement (Second) of Torts §§ 343 and 343A (1965), which purport to state the prevailing or preferred rules governing the liability of a possessor of land to an invitee.6 Under these land-based negligence standards, the District Court thought
8
"a shipowner is not liable for dangerous conditions created by the stevedore's negligence while the stevedore [is] in exclusive control over the manner and area of the work . . ., nor is the shipowner under a duty to warn the stevedore or his employees of dangers or open and obvious defects which are known to the stevedore or his employees or which are so obvious and apparent that they may reasonably be expected to discover them." 1976 A.M.C. 2583, 2585.
9
Based on the admissions of the parties and the depositions available to the court, the District Court concluded (1) that there was no dispute that the premises were in the exclusive control of Seattle during the loading operation and that (2) even if Scindia knew or should have known of the defective winch,7 the condition of the winch "was open and obvious to the plaintiff" and "the fact that plaintiff undertook his actions free from any direction by the defendant while recognizing that the circumstances were so dangerous, is such that the defendant cannot be held liable as a matter of law." Id., at 2586-2587. In addition, the District Court found that "the alleged defective condition of the winch had only a remote cause-in-fact relationship to plaintiff's accident and could not have been the proximate cause thereof as a matter of law." Id., at 2587. Hence, summary judgment was granted.8
10
Reversing, the Court of Appeals disagreed with the District Court and with other Courts of Appeals with respect to the applicable law. Sections 343 and 343A of the Restatement were improper measures of the shipowner's liability for negligence under § 905(b)9 because those sections in effect incorporated notions of contributory negligence and assumption of risk that were inapplicable under the maritime law. Instead, the Court of Appeals declared the controlling standard under § 905(b) to be the following:
11
"A vessel is subject to liability for injuries to longshoremen working on or near the vessel caused by conditions on the vessel if, but only if, the shipowner
12
"(a) knows of, or by the exercise of reasonable care would discover, the condition, and should realize that it involves an unreasonable risk of harm to such longshoremen, and
13
"(b) the shipowner fails to exercise reasonable care under the circumstances to protect the longshoremen against the danger." 598 F.2d, at 485.
14
Under this standard, Scindia's duty to inspect did not end even if the vessel was turned over to the stevedore in safe condition. If conditions dangerous to the longshoremen subsequently developed, in light of the vessel's practical opportunities to discover the dangers and remedy them, failure to do so could be negligence on its part.10
15
Under the Court of Appeals' view of the law there were several material facts in dispute that were for a jury to resolve: whether the shipowner knew or should have known of the defective winch; whether Seattle was in exclusive control of the loading in the sense that only Seattle could have repaired the winch; whether the defective operation of the winch had caused the initial spillage of the sacks, thus necessitating a cleanup, or had later been the proximate cause of the additional sacks falling from the pallet and injuring Santos. Accordingly, the Court of Appeals set aside the judgment of the District Court and remanded for further proceedings.
II
16
Initially, we must briefly revisit the 1972 Amendments to the Act. Prior to 1972, a longshoreman injured while loading or unloading a ship could receive compensation payments and also have judgment against the shipowner if the injury was caused by the ship's unseaworthiness or negligence. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946). Proof of unseaworthiness required no proof of fault on the part of the shipowner other than an unsafe, injury-causing condition on the vessel. This was true even though the condition was caused, created, or brought into play by the stevedore or its employees.11 In the latter event, the shipowner could recover over against a stevedore for breach of express or implied warranty to handle the cargo in a reasonably safe manner. Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956).12
17
The 1972 Amendments, particularly by adding § 905(b), radically changed this scheme of things. The compensation payments due the longshoreman from the stevedore for injuries incurred in the course of his employment were substantially increased; the longshoreman's right to recover for unseaworthiness was abolished; his right to recover from the shipowner for negligence was preserved in § 905(b), which provided a statutory negligence action against the ship; and the stevedore's obligation to indemnify the shipowner if the latter was held liable to the longshoreman was abolished.
18
Section 905(b) did not specify the acts or omissions of the vessel that would constitute negligence. In light of the differences among the lower federal courts as to the construction and application of § 905(b), neither can it be said that the legislative history, which has been analyzed and reanalyzed in the course of these cases, furnishes sure guidance for construing § 905(b).13 Much was left to be resolved through the "application of accepted principles of tort law and the ordinary process of litigation." Rep., p. 11.
III
19
We held in Marine Terminals v. Burnside Shipping Co., 394 U.S. 404, 415, 89 S.Ct. 1144, 1150, 22 L.Ed.2d 371 (1969), that the vessel owes to the stevedore and his longshoremen employees the duty of exercising due care "under the circumstances." This duty extends at least to exercising ordinary care under the circumstances to have the ship and its equipment in such condition that an expert and experienced stevedore will be able by the exercise of reasonable care to carry on its cargo operations with reasonable safety to persons and property, and to warning the stevedore of any hazards on the ship or with respect to its equipment that are known to the vessel or should be known to it in the exercise of reasonable care, that would likely be encountered by the stevedore in the course of his cargo operations and that are not known by the stevedore and would not be obvious to or anticipated by him if reasonably competent in the performance of his work. Id., at 416, n. 18, 89 S.Ct., at 1151. The shipowner thus has a duty with respect to the condition of the ship's gear, equipment, tools, and work space to be used in the stevedoring operations; and if he fails at least to warn the stevedore of hidden danger which would have been known to him in the exercise of reasonable care, he has breached his duty and is liable if his negligence causes injury to a longshoreman. Petitioner concedes as much. Brief for Petitioner 20-21. It is also accepted that the vessel may be liable if it actively involves itself in the cargo operations and negligently injures a longshoreman or if it fails to exercise due care to avoid exposing longshoremen to harm from hazards they may encounter in areas, or from equipment, under the active control of the vessel during the stevedoring operation.
20
The parties, however, like the District Court and the Court of Appeals, are in sharp disagreement as to the vessel's duty under § 905(b) once the stevedore's cargo operations have begun. Scindia contends that the shipowner has no duty to supervise or inspect the stevedore's cargo operations or to take reasonable care to discover dangerous conditions that develop or come to light during the loading or unloading. Scindia also submits that even if the vessel learns of the hazard, it has no duty to correct it and is entitled as a matter of law to rely on the stevedore to protect his employees from injury. This is true, Scindia argues, even though the hazard is an obviously defective ship's winch being used by the stevedore and his longshoremen employees,14 and even if the winch was defective when the stevedore came aboard and the vessel is charged with knowledge of the condition. Respondents, on the other hand, defend the view of the Court of Appeals that the vessel is subject to a continuing duty to use reasonable care to discover dangerous conditions exposing longshoremen to unreasonable risk of harm and to exercise reasonable care under the circumstances to protect them. We are unable to agree wholly with either of these submissions.
21
Considering first the position of the Court of Appeals, we cannot agree that the vessel's duty to the longshoreman requires the shipowner to inspect or supervise the stevedoring operation. Congress intended to make the vessel answerable for its own negligence and to terminate its automatic, faultless responsibility for conditions caused by the negligence or other defaults of the stevedore. Cases holding the vessel liable on the ground that it owed nondelegable duties to protect the longshoremen from injury were rejected.15 It would be inconsistent with the Act to hold, nevertheless, that the shipowner has a continuing duty to take reasonable steps to discover and correct dangerous conditions that develop during the loading or unloading process. Such an approach would repeatedly result in holding the shipowner solely liable for conditions that are attributable to the stevedore, rather than the ship. True, the liability would be cast in terms of negligence rather than unseaworthiness, but the result would be much the same. "[C]reation of a shipowner's duty to oversee the stevedore's activity and insure the safety of longshoremen would . . . saddle the shipowner with precisely the sort of nondelegable duty that Congress sought to eliminate by amending section 905(b)." Hurst v. Triad Shipping Co., 554 F.2d 1237, 1249-1250, n. 35 (CA3 1977); Evans v. S.S. "Campeche," 639 F.2d 848, 856 (CA2 1981).16
22
As a general matter, the shipowner may rely on the stevedore to avoid exposing the longshoremen to unreasonable hazards. Section 41 of the Act, 33 U.S.C. § 941, requires the stevedore, the longshoremen's employer, to provide a "reasonably safe" place to work and to take such safeguards with respect to equipment and working conditions as the Secretary of Labor may determine to be necessary to avoid injury to longshoremen.17 The ship is not the common employer of the longshoremen18 and owes no such statutory duty to them. Furthermore, as our cases indicate, the stevedore normally warrants to discharge his duties in a workman-like manner; and although the 1972 Amendments relieved the stevedore of his duty to indemnify the shipowner for damages paid to longshoremen for injuries caused by the stevedore's breach of warranty, they did not otherwise disturb the contractual undertaking of the stevedore nor the rightful expectation of the vessel that the stevedore would perform his task properly without supervision by the ship.
23
The approach of the indemnity cases in this Court, beginning with Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956), was that the stevedore was in the best position to avoid accidents during cargo operations and that the shipowner could rely on the stevedore's warranty to perform competently. In Italia Societa v. Oregon Stevedoring Co., 376 U.S. 315, 84 S.Ct. 748, 11 L.Ed.2d 732 (1964), for example, the vessel was found liable for injuries to a longshoreman caused by an unseaworthy condition arising when the stevedore, without negligence, supplied defective equipment used in handling the cargo. We held the vessel entitled to recover over against the stevedore, saying:
24
"Oregon, a specialist in stevedoring, was hired to load and unload the petitioner's vessels and to supply the ordinary equipment necessary for these operations. The defective rope which created the condition of unseaworthiness on the vessel and rendered the shipowner liable to the stevedore's employee was supplied by Oregon, and the stevedoring operations in the course of which the longshoreman was injured were in the hands of the employees of Oregon. Not only did the agreement between the shipowner place control of the operations on the stevedore company, but Oregon was also charged under the contract with the supervision of these operations. Although none of these factors affect the shipowner's primary liability to the injured employee of Oregon, since its duty to supply a seaworthy vessel is strict and nondelegable, and extends to those who perform the unloading and loading portion of the ship's work, Seas Shipping Co. v. Sieracki, 328 U.S. 85 [66 S.Ct. 872, 90 L.Ed. 1099], cf. Pope & Talbot v. Hawn, 346 U.S. 406 [74 S.Ct. 202, 98 L.Ed. 143], they demonstrate that Oregon was in a far better position than the shipowner to avoid the accident. The shipowner defers to the qualification of the stevedoring contractor in the selection and use of equipment and relies on the competency of the stevedore company." Id., at 322-323, 84 S.Ct., at 752-753.19
25
The 1972 Amendments foreclosed indemnity of the shipowner by the stevedore in § 905(b) cases; but they also rejected the notion of a nondelegable duty on the shipowner to provide a safe place to work and did not undermine the justifiable expectations of the vessel that the stevedore would perform with reasonable competence and see to the safety of the cargo operations.
26
We are of the view that absent contract provision, positive law, or custom to the contrary—none of which has been cited to us in this case—the shipowner has no general duty by way of supervision or inspection to exercise reasonable care to discover dangerous conditions that develop within the confines of the cargo operations that are assigned to the stevedore. The necessary consequence is that the shipowner is not liable to the longshoremen for injuries caused by dangers unknown to the owner and about which he had no duty to inform himself. This conclusion is plainly consistent with the congressional intent to foreclose the faultless liability of the shipowner based on a theory of unseaworthiness or nondelegable duty. The shipowner, within limits, is entitled to rely on the stevedore, and owes no duty to the longshoremen to inspect or supervise the cargo operations. To the extent that the judgment of the Court of Appeals rested on a contrary view, we disagree.
IV
27
We arrive at the more difficult and recurring issue involved in this case: What are the shipowner's duties when he learns that an apparently dangerous condition exists or has developed in the cargo operation, which is known to the stevedore and which may cause injury to the longshoreman? Must the owner take some action? Scindia and the District Court would have it that the vessel is entitled to rely on the expertise and responsibility of the stevedore and is not liable for injuries caused by dangers known by or obvious to the stevedore, who, if he fails to take proper precautions, is necessarily the sole and proximate cause of the injury. There is arguable support for this position in our cases.
28
In Crumady v. The J. H. Fisser, 358 U.S. 423, 79 S.Ct. 445, 3 L.Ed. 413 (1959), a ship's winch had been set by ship's officers to shut off the current at twice the safe working load of the unloading gear. The gear parted when subjected to undue strain because of the negligence of the stevedore. The Court held the ship unseaworthy. Consistent with past cases, the Court declared that the longshoremen's protection against unseaworthiness "imposes a duty which the owner of the vessel cannot delegate," a duty which, as to appliances, "does not end with supplying them; he must keep them in order." The shipowner "is not relieved of these responsibilities by turning control of the loading or unloading of the ship over to a stevedoring company." Id., at 427, 79 S.Ct., at 447. The Court, nevertheless, permitted the ship to recover over from the stevedore "since the negligence of the stevedores . . . brought the unseaworthiness of the vessel into play . . . ." Id., at 429, 79 S.Ct., at 448.20
29
In Crumady, the Court declared that "those acting for the vessel owner" had adjusted the winch "in a way that made it unsafe and dangerous for the work at hand." Id., at 427, 79 S.Ct., at 447. It thus appeared that the vessel had at least been negligent, yet it was entitled to shift its entire liability to the stevedore because it was entitled to rely on the stevedore's undertaking to perform in a workmanlike manner. Arguably, Scindia should likewise be justified in expecting Seattle to perform its undertaking and should therefore have no duty or responsibility with respect to the ship's winch, which, if defective, was obviously so and which the stevedore continued to use.
30
The court below rejected this position, holding that if the vessel should realize that the condition presents an unreasonable risk of harm, it is liable if it "fails to exercise reasonable care under the circumstances" to protect the longshoremen. The court did not suggest how to recognize an "unreasonable risk" of harm from an obvious danger or suggest what reasonable care under the circumstances might be.
31
The Court of Appeals for the Second Circuit, while disagreeing with the duty-to-inspect thesis of the Court of Appeals in the present case, has also rejected this position, ruling that although the shipowner is normally entitled to rely on the stevedore to guard against hazards to its employees, "there may be circumstances in which it would not be reasonable for the shipowner to assume that the stevedore will correct the problem." Evans v. S.S. "Campeche," 639 F.2d, at 856.21 As that court sees it, mere knowledge of the danger would not be sufficient in itself to fasten such a duty on the shipowner, but if the shipowner should anticipate that the stevedore will not or cannot correct the danger and that the longshoremen cannot avoid it, then the shipowner's duty is triggered to take steps, reasonable in the circumstances, to eliminate or neutralize the hazard. We are presently unprepared to agree that the shipowner has precisely the duty described by the Court of Appeals for the Second Circuit, but for the reasons that follow we agree that there are circumstances in which the shipowner has a duty to act where the danger to longshoremen arises from the malfunctioning of the ship's gear being used in the cargo operations.
32
On the facts posited here, for two days prior to the accident, it had been apparent to those working with the winch that this equipment was malfunctioning. Even so, whether it could be safely used or whether it posed an unreasonable risk of harm to Santos or other longshoremen was a matter of judgment committed to the stevedore in the first instance. The malfunctioning being obvious and Seattle having continued to use it, Scindia submits that if it was aware of the condition or was charged with knowledge of it, it was nevertheless entitled to assume that Seattle, the specialist in loading and unloading, considered the equipment reasonably safe and was entitled to rely on that judgment.
33
Yet it is quite possible, it seems to us, that Seattle's judgment in this respect was so obviously improvident that Scindia, if it knew of the defect and that Seattle was continuing to use it, should have realized the winch presented an unreasonable risk of harm to the longshoremen,22 and that in such circumstances it had a duty to intervene and repair the ship's winch. The same would be true if the defect existed from the outset and Scindia must be deemed to have been aware of is condition.
34
As we have indicated, the legal duties placed on the stevedore and the vessel's justifiable expectations that those duties will be performed are relevant in determining whether the shipowner has breached its duty. The trial court, and where appropriate the jury, should thus be made aware of the scope of the stevedore's duty under the positive law. But an equally necessary inquiry is whether the pertinent statutes, regulations, or custom place or assume a continuing duty on the vessel to repair defective ship's gear being used by the stevedore in the cargo operation.23
35
The statutory duty of the stevedore under § 941 to provide a safe place to work has been implemented by the Safety and Health Regulations for Longshoring. 29 CFR § 1918.1 et seq. (1980). Subpart F of these regulations, § 1918.51 et seq., deals with the use of the ship's gear by the stevedore. Section 1918.51(b) provides that "[a]ny component of cargo handling gear . . . which is visibly unsafe shall not be used until made safe." In addition, § 1918.53, dealing with cargo winches, provides that "[a]ny defect or malfunction of winches shall be reported immediately to the officer in charge of the vessel," § 1918.53(a)(5); that in the case of electrical winches "[w]hen the electromagnetic or other service brake is unable to hold the load, the winch shall not be used," § 1918.53(c)(1); and that "[e]mployees shall not be permitted to tamper with or adjust electric control circuits," § 1918.53(c)(2).24 Even in the absence of other statutory or regulatory law placing on the shipowner the obligation to repair a defective winch,25 a possible inference from the provisions already described is that when a defective winch is discovered, it should not be repaired by the stevedore but should be reported to and repaired by the shipowner. If this is the case, the situation comes down to this: If Scindia was aware that the winch was malfunctioning to some degree, and if there was a jury issue as to whether it was so unsafe that the stevedore should have ceased using it, could the jury also have found that the winch was so clearly unsafe that Scindia should have intervened and stopped the loading operation until the winch was serviceable?
36
We raise these questions but do not answer them, since they are for the trial court in the first instance and since neither the trial nor appellate courts need deal with them unless there is sufficient evidence to submit to the jury either that the shipowner was aware of sufficient facts to conclude that the winch was not in proper order, or that the winch was defective when cargo operations began and that Scindia was chargeable with knowledge of its condition. The District Court concluded that there was no triable issue of fact as to whether the shipowner knew or should have known of the alleged condition of the winch. The Court of Appeals read the record quite differently, ruling that there was a disputed material fact, which the District Court should not itself have resolved, with respect to the shipowner's actual or constructive knowledge of the condition of the winch. To the extent that this conclusion was based on the Court of Appeals' erroneous view that the vessel should have known the facts because of its duty to inspect the stevedore's cargo handling operation, it was infirm. But as we understand the opinion below, the Court of Appeals held that there was a triable issue as to whether the shipowner had actual knowledge of the failure in the winch's braking mechanism or was chargeable with knowledge because the winch was defective from the outset. Based on our own examination of the record, we agree with the Court of Appeals in this respect and with its conclusion that the District Court erred in granting summary judgment. The case should be returned to the District Court and, if necessary, tried to a jury under appropriate instructions.26
37
Accordingly, we affirm the judgment of the Court of Appeals and remand the case to that court for further proceedings consistent with this opinion.
38
So ordered.
39
THE CHIEF JUSTICE took no part in the decision of this case.
40
Justice BRENNAN, with whom Justice MARSHALL and Justice BLACKMUN join, concurring.
41
My views are that under the 1972 Amendments: (1) a shipowner has a general duty to exercise reasonable care under the circumstances; (2) in exercising reasonable care, the shipowner must take reasonable steps to determine whether the ship's equipment is safe before turning that equipment over to the stevedore; (3) the shipowner has a duty to inspect the equipment turned over to the stevedore or to supervise the stevedore if a custom, contract provision, law or regulation creates either of those duties; and (4) if the shipowner has actual knowledge that equipment in the control of the stevedore is in an unsafe condition, and a reasonable belief that the stevedore will not remedy that condition, the shipowner has a duty either to halt the stevedoring operation, to make the stevedore eliminate the unsafe condition, or to eliminate the unsafe condition itself.
42
Since I read the Court's opinion to be consistent with these views, I join the Court's opinion.
43
Justice POWELL, with whom Justice REHNQUIST joins, concurring.
44
I join the Court's opinion because I agree with its basic thrust—placing the primary burden on the stevedore for avoiding injuries caused by obvious hazards. I write only to emphasize the distinction between this approach and the general "reasonableness" standard adopted by the Ninth Circuit in this case.
45
Under the Court's opinion, "the shipowner has no general duty by way of supervision or inspection to exercise reasonable care to discover dangerous conditions that develop within the confines of the cargo operations that are assigned to the stevedore." Ante, at 172. In addition, the opinion makes clear that the shipowner has only a limited duty with respect to obvious hazards of which it is aware. Although the shipowner cannot rely in all cases on the judgment and primary responsibility of the stevedore concerning what conditions allow safe work to continue, safety is a "matter of judgment committed to the stevedore in the first instance." Ante, at 175. Only where the judgment of the stevedore is "obviously improvident," ibid., and this poor judgment either is known to the shipowner or reasonably should be anticipated under the circumstances, does the shipowner have a duty to intervene.1 As the opinion points out, the customs and regulations allocating responsibility for particular repairs are highly relevant to this inquiry.
46
The difficulty with a more general reasonableness standard like that adopted by the court below is that it fails to deal with the problems of allocating responsibility between the stevedore and the shipowner. It may be that it is "reasonable" for a shipowner to rely on the stevedore to discover and avoid most obvious hazards. But when, in a suit by longshoreman, a jury is presented with the single question whether it was "reasonable" for the shipowner to fail to take action concerning a particular obvious hazard, the jury will be quite likely to find liability. If such an outcome were to become the norm, negligent stevedores would be receiving windfall recoveries in the form of reimbursement for the statutory benefit payments made to the injured longshoremen.2 This would decrease significantly the incentives toward safety of the party in the best position to prevent injuries, and undercut the primary responsibility of that party for ensuring safety.
1
Pub.L. 92-576, 86 Stat. 1251, amending 33 U.S.C. §§ 901-950.
2
Section 933, referred to in § 905(b), among other things provides that an injured longshoreman need not elect between compensation and suing a third party. It also specifies the relative rights of the longshoreman and his employer where the longshoreman accepts compensation and sues a third party or fails to do so within a specified time. Because its compensation payments to Santos gave it an interest in Santos' recovery, Seattle Stevedore Co. intervened and is a respondent here.
3
The District Court's opinion is reported at 1976 A.M.C. 2583 and is Appendix A to the petition for certiorari.
4
See n. 9, infra.
5
A pallet jack is a small, wheeled, cartlike vehicle with prongs on the front like a forklift with which the longshoremen in the hold would cart the pallet load to the wings of the hold where they would then remove the sacks and stow them by hand. Record 77.
6
Restatement (Second) of Torts § 343 provides:
"§ 343. Dangerous Conditions Known to or Discoverable by Possessor
"A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
"(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
"(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
"(c) fails to exercise reasonable care to protect them against the danger."
Restatement (Second) of Torts § 343A provides:
"§ 343A. Known or Obvious Dangers
"(1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.
"(2) In determining whether the possessor should anticipate harm from a known or obvious danger, the fact that the invitee is entitled to make use of public land, or of the facilities of a public utility, is a factor of importance indicating that the harm should be anticipated."
7
The District Court stated, 1976 A.M.C., at 2586, that "[p]laintiff does not controvert defendant's claim that no one from the ship's crew was ever informed of the winch's condition prior to the accident" and further stated that if the winch was defective, it was a "condition [about] which the Court finds the shipowner did not know nor should it reasonably have been expected to know, given the exclusive control of the gear by the stevedores during the relevant time period." Ibid. Scindia contended in any event that the winch was not defective but concedes that for present purposes the case should be judged on the assumption that it was.
8
Federal Rule of Civil Procedure 56(c) provides that judgment shall be entered in favor of the moving party "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."
9
The Court of Appeals acknowledged that the Courts of Appeals for the Second, Fourth, and Fifth Circuits had relied on these sections in § 905(b) suits. See, e. g., Canizzo v. Farrell Lines, Inc., 579 F.2d 682 (CA2 1978); Gay v. Ocean Transport & Trading, Ltd., 546 F.2d 1233 (CA5 1977); Anuszewski v. Dynamic Mariners Corp., Panama, 540 F.2d 757 (CA4 1976); Napoli v. Hellenic Lines, Ltd., 536 F.2d 505 (CA2 1976). The Court of Appeals for the Second Circuit has recently reaffirmed its position. Evans v. S.S. "Campeche," 639 F.2d 848 (1981). On the other hand, the First and Third Circuits, like the Ninth Circuit, have held that these sections should not apply in § 905(b) suits since they might bar a longshoreman from recovery because he was contributorily negligent or because he voluntarily encountered a known or obvious risk. See Sarauw v. Oceanic Navigation Corp., 622 F.2d 1168 (CA3 1980); Johnson v. A/S Ivarans Rederi, 613 F.2d 334 (CA1 1980); Griffith v. Wheeling Pittsburgh Steel Corp., 610 F.2d 116 (CA3 1979); Lawson v. United States, 605 F.2d 448 (CA9 1979); Bachtel v. Mammoth Bulk Carriers, Ltd., 605 F.2d 438 (CA9 1979); 598 F.2d 480 (CA9 1979) (case below).
10
The Court of Appeals referred to its standard as being a "reasonable care under the circumstances" approach. Id., at 486. It found support for this formulation in Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959). In that case, a visitor paying a social call on a member of the ship's crew was injured when he fell on a defective stairway. The jury found the shipowner negligent and returned a verdict, which was set aside on appeal because the visitor had been a licensee rather than an invitee. This Court reversed, preferring to adopt a single duty of "exercising reasonable care under the circumstances of each case," rather than to incorporate in the maritime law the complexities of the common law of invitee and licensee. Id., at 632, 79 S.Ct., at 410. The Kermarec standard was reaffirmed in Marine Terminals v. Burnside Shipping Co., 394 U.S. 404, 89 S.Ct. 1144, 22 L.Ed.2d 371 (1969), a case involving a suit by a stevedore against the shipowner. We have no quarrel with this standard. Inevitably, however, the rule will undergo refinement as it is applied to various categories of cases. Thus, in considering the reasonableness of Scindia's conduct under this standard, the Court of Appeals found it appropriate to inquire whether the shipowner had a continuing duty to inspect and held that it did. As will become evident, we have a different view: the shipowner's duty of reasonable care under the circumstances does not impose a continuing duty to inspect the cargo operations once the stevedore begins its work.
11
Alaska S.S. Co. v. Petterson, 347 U.S. 396, 74 S.Ct. 272, 98 L.Ed. 410 (1954); Weyerhaeuser S.S. Co. v. Nacirema Operating Co., 355 U.S. 563, 78 S.Ct. 438, 2 L.Ed.2d 491 (1958); Crumady v. The J. H. Fisser, 358 U.S. 423, 79 S.Ct. 445, 3 L.Ed.2d 413 (1959); Waterman S. S. Corp. v. Dugan & McNamara, Inc., 364 U.S. 421, 81 S.Ct. 200, 5 L.Ed.2d 169 (1960); Italia Societa v. Oregon Stevedoring Co., 376 U.S. 315, 84 S.Ct. 748, 11 L.Ed.2d 732 (1964).
In Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 91 S.Ct. 514, 27 L.Ed.2d 562 (1971), however, we ruled that a single act of operational negligence by the stevedore did not render the vessel unseaworthy or subject the vessel to liability.
12
See also the cases cited in n. 11, supra.
13
Section 905(b) itself negates the vessel's liability for unseaworthiness, and the Committee Reports state that the purpose of eliminating this remedy was to place the injured longshoreman "in the same position he would be if he were injured in non-maritime employment ashore . . . and not to endow him with any special maritime theory of liability or cause of
action under whatever judicial nomenclature it may be called, such as 'unseaworthiness', 'non-delegable duty', or the like." S.Rep.No.92-1125, p. 10 (1972) (hereafter Rep.). (H.R.Rep.No.92-1441 (1972), U.S.Code Cong. & Admin.News 1972, 4698, is in all relevant respects identical to the Senate Report.) The vessel was not to be liable on the theory of unseaworthiness for the acts or omissions of stevedores, or of the employees of stevedores, for the manner in which the stevedore performed its work, or for its defective gear or equipment. Rep., p. 10. Its liability was to be "based on its own negligence" and could be proved only if it was shown "to have acted or have failed to act in a negligent manner such as would render a land-based third party in non-maritime pursuits liable under similar circumstances." Id., at 11.
At the same time, the Committees observed that the statutory cause of action for negligence would "meet the objective of encouraging safety because the vessel would still be required to exercise the same care as a land-based person in providing a safe place to work." Id., at 10. Nothing was intended "to derogate from the vessel's responsibility to take appropriate corrective action where it knows or should have known about a dangerous condition" as long as the vessel was not "chargeable with the negligence of the stevedore or employees of the stevedore." Id., at 10, 11.
The Committees also anticipated that in § 905(b) cases, as in other admiralty cases, the rule of comparative negligence would apply and the defense of assumption of risk would be barred. Furthermore, the Reports emphasized that the amendments were not intended to relieve any person from his duties and obligations under the Occupational Safety and Health Act of 1970.
Otherwise, the definition of the vessel's negligence and its resulting liability were left to be "resolved through the application of accepted principles of tort law and the ordinary process of litigation—just as they are in cases involving alleged negligence by land-based third parties." Rep., p. 11. It was anticipated, however, that questions arising in § 905(b) cases "shall be determined as a matter of Federal law." Rep., p. 12.
14
Because the legislative history suggests that the shipowner's liability is to be judged by land-based standards, see n. 13, supra, it is urged that the District Court properly turned to and applied §§ 343 and 343A of the Restatement (Second) of Torts. But the legislative history does not refer to the Restatement and also states that land-based principles of assumption of risk and contributory negligence are not to be applied in § 905(b) cases. This strongly suggests, as Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959), indicated, that maritime negligence actions are not necessarily to be governed by principles applicable in nonmaritime contexts. Furthermore, since the lower courts are in disagreement not only as to the applicability of §§ 343 and 343A but also as to their import and meaning when applied in the maritime context, those sections, while not irrelevant, do not furnish sure guidance in cases such as this.
15
"Thus a vessel shall not be liable in damages for acts or omissions of stevedores or employees of stevedores subject to this Act. Crumedy vs. The J. H. Fisser, 358 U.S. 423 [79 S.Ct. 445, 3 L.Ed. 413]; Albanese vs. Matts [Maats], 382 U.S. 283 [86 S.Ct. 429, 15 L.Ed.2d 327], Skibinski vs. Waterman §§ Corp., [360] F.2d 539; for the manner or method in which stevedores or employees of stevedores subject to this Act perform their work, A. N. G. [A. & G.] Stevedores vs. Ellerman Lines, 369 U.S. 355 [82 S.Ct. 780, 7 L.Ed.2d 798], Blassingill vs. Waterman §§ Corp., 336 F.2d 367; for gear or equipment of stevedores or employees of stevedores subject to this Act whether used aboard ship, or ashore, Alaska §§ Co. vs. Peterson, 347 U.S. 396 [74 S.Ct. 601, 98 L.Ed. 798], Italia Societa vs. Oregon Stevedoring Co., 376 U.S. 315 [84 S.Ct. 748, 11 L.Ed.2d 732], or for other categories of unseaworthiness which have been judicially established. This listing of cases is not intended to reflect a judgment as to whether recovery on a particular actual setting could be predicated on the vessel's negligence." Rep., p. 10.
16
Much is made of the Committees' statement that nothing in the bill "is intended to derogate from the vessel's responsibility to take appropriate corrective action where it knows or should have known about a dangerous condition." Ibid. But the statement did not explain what the vessel's "responsibility" is and what "appropriate" action might be, or when it "should have known" of the condition. The Committees did offer an example:
"So, for example, where a longshoreman slips on an oil spill on a vessel's deck and is injured, the proposed amendments to Section 5 would still permit an action against the vessel for negligence. To recover, he must establish that: 1) the vessel put the foreign substance on the deck, or knew that it was there, and willfully or negligently failed to remove it; or 2) the foreign substance had been on the deck for such a period of time that it should have been discovered and removed by the vessel in the exercise of reasonable care by the vessel under the circumstances." Id., at 10-11.
However, when the failure to remove the oil spill would be "willful" or "negligent" or what the exercise of reasonable care under the circumstances would require was not explicated except to say that the "vessel will not be chargeable with the negligence of the stevedore or employees of the stevedore." Id., at 11.
17
Title 33 U.S.C. § 941 provides in relevant part as follows:
"(a) . . . Every employer shall furnish and maintain employment and places of employment which shall be reasonably safe for his employees in all employments covered by this chapter and shall install, furnish, maintain, and use such devices and safeguards with particular reference to equipment used by and working conditions established by such employers as the Secretary may determine by regulation or order to be reasonably necessary to protect the life, health, and safety of such employees, and to render safe such employment and places of employment, and to prevent injury to his employees."
18
The Committees rejected the proposal that the vessel and the stevedore be considered joint employers of longshoremen. Rep., p. 8.
19
See also the cases cited in n. 11, supra. Of course, in the situation presented in the Italia case, the faultless liability of the shipowner would no longer obtain under § 905(b).
20
Justice Harlan, joined by Justices Frankfurter and Whittaker, dissented, being of the view that the ship was not unseaworthy and that if it was, the ship was not entitled to indemnity if the stevedore merely brought into play the unseaworthy condition of the ship's own equipment. Crumady was reaffirmed in Waterman S.S. Co. v. Dugan & McNamara, Inc., 364 U.S., at 423, 81 S.Ct., at 201.
21
The panel was divided. Judge Meskill wrote the principal opinion joined for the most part by Judge Friendly, who also wrote a concurring opinion. District Judge Bonsal, sitting by designation, dissented. The majority could not accept the notion that the shipowner had a continuing duty to inspect the cargo operations since "to so require would 'saddle the shipowner with precisely the sort of nondelegable duty that Congress sought to eliminate by amending section 905(b).' Hurst v. Triad Shipping Co., supra, 554 F.2d, at 1249 n. 35." 639 F.2d, at 856. The majority also rejected the so-called "control test" which the court thought would, inconsistently with the statute, entirely relieve the shipowner from any liability for accidents occurring in the course of operations under the control of the stevedore. The majority's approach, which it considered consistent with § 343A of the Restatement and which it called the "reasonable anticipation standard," would place a duty of care on the vessel when it would be unreasonable to assume the stevedore will deal with an apparent hazard—for example, "where the dangerous condition would be too difficult for the stevedore alone to remedy, or where the custom in the industry places the burden of acting on the shipowner, or where the ship affirmatively joins in the decision to continue despite the hazard." 639 F.2d, at 856. The court should endeavor "to reach a realistic conclusion concerning the shipowner's reasonable anticipation." Id., at 856-857.
22
We agree with the Court of Appeals that the shipowner may not defend on the ground that Santos should have refused to continue working in face of an obviously dangerous winch which his employer, Seattle, was continuing to use. The District Court erred in ruling otherwise, since the defense of assumption of risk is unavailable in § 905(b) litigation. See also Napoli v. Hellenic Lines, Ltd., 536 F.2d, at 509.
23
It may also be that the contract between the stevedore and the shipowner will have provisions specifically bearing on the dispute. The contract between Scindia and Seattle is not part of the record in this case.
24
Petitioner acknowledged in its brief that only the shipowner could have repaired the defective winch, Brief for Petitioner 24, but argued that even if notified of the defect, it would merely have had the opportunity, but not the duty, to repair. Tr. of Oral Arg. 10.
25
The United States Coast Guard has issued regulations with respect to the gear and equipment of cargo ships. 46 CFR Ch. 1, Subchapter 1, Cargo and Miscellaneous Vessels (1980). For ships to which the regulations are applicable, the shipowner must obtain a certificate of inspection at stated intervals. There are detailed requirements for the testing of winches. There is provision for accepting the certificate of private testing organizations recognized by the Coast Guard, such as the International Cargo Gear Bureau, Inc., which has its own manual specifying necessary testing procedures. The regulations, however, do not appear to specify the respective duties of the vessel and the stevedore in situations such as we now have before us. Scindia asserts that the Coast Guard regulations place no continuing duty on the shipowner to inspect the ship's equipment during cargo operations. Tr. of Oral Arg. 14. Also, the M/S Jalaratna appears to be an Indian ship and may not be covered by the regulations, which do not apply to "[a]ny vessel of a foreign nation signatory to the International Convention for Safety of Life at Sea, 1960, and which has on board a current, valid safety equipment certificate." 46 CFR § 90.05-1 (1980).
We note with some interest that in affirming a jury verdict for a longshoreman in Irizarry v. Compania Maritime Navegacion Netumar, S. A., No. 79-7876 (CA2, May 22, 1980), cert. pending, No. 80-94, the Court of Appeals for the Second Circuit relied on the Joint Maritime Safety Code issued by the New York Shipping Association, Inc., the International Longshoremen's Association, and the Port of New York Joint Safety Committee. The Code was prepared pursuant to the terms of the labor agreement between the shipping association and the longshoremen's union and contains what is described as "the commonly agreed on practices for working together safely." The provision of the Code relied on by the Court of Appeals states that "[t]he owner, master and officers of the vessel shall supply and maintain in safe condition for use all ship's gear equipment, tools and work spaces which are to be used in stevedoring operations."
26
Of course, it has not been determined whether the winch was defective or if it was, when it became defective and whether the defect contributed to the accident. If the effective cause was a simple act of operational negligence by the crane operator or the hatch tender, the vessel would not be liable in any event. Cf. Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 91 S.Ct. 514, 27 L.Ed.2d 562 (1971). The District Court apparently thought this conclusion was necessitated by the fact that the stevedore was in operational control and was necessarily the sole cause of the accident.
1
In my view, the Restatement standard adopted by the Second, Fourth, and Fifth Circuits, see ante, at 162, n. 9, and discussed most recently in Evans v. S.S. "Campeche," 639 F.2d 848 (CA2 1981), is consistent with the plain intent of Congress to impose the primary responsibility on the stevedore. Although it is unnecessary in this case for the Court to adopt this standard fully, I do not understand our opinion to be inconsistent with it.
2
Under 33 U.S.C. § 905(b), the shipowner is liable in damages to the longshoreman if it was negligent, and it may not seek to recover any part of this liability from the stevedore. The longshoreman's recovery is not reduced to reflect the negligence of the stevedore. Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 99 S.Ct. 2753, 61 L.Ed.2d 521 (1979). Under 33 U.S.C. § 933, the stevedore—even if concurrently negligent—receives reimbursement for its statutory benefit payments to the longshoreman, up to the full amount of those payments. See also Bloomer v. Liberty Mutual Ins. Co., 445 U.S. 74, 100 S.Ct. 925, 63 L.Ed. 215 (1980) (stevedore's lien is not reduced by its proportional share of the costs of litigating the negligence suit). As a result of this automatic reimbursement, there is a danger that "concurrently negligent stevedores will be insulated from the obligation to pay statutory workmen's compensation benefits, and thus will have inadequate incentives to provide a safe working environment for their employees." Edmonds, supra, 443 U.S., at 274, 99 S.Ct., at 2764 (BLACKMUN, J., dissenting). In cases involving obvious and avoidable hazards, this danger will be realized unless the shipowner's liability is limited to the unusual case in which it should be anticipated that the stevedore will fail to act reasonably. Any more stringent, or less defined, rule of shipowner liability will skew the statutory scheme in a way Congress could not have intended. Cf. Canizzo v. Farrell Lines, Inc., 579 F.2d 682, 687-688 (CA2 1978) (Friendly, J., dissenting).
| 78
|
451 U.S. 287
101 S.Ct. 1775
68 L.Ed.2d 101
State of CALIFORNIA et al., Petitioners,v.SIERRA CLUB et al. KERN COUNTY WATER AGENCY et al., Petitioners, v. SIERRA CLUB et al.
Nos. 79-1252, 79-1502.
Argued Jan. 21, 1981.
Decided April 28, 1981.
Syllabus
Section 10 of the Rivers and Harbors Appropriation Act of 1899 (Act) prohibits "[t]he creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States." An environmental organization and two private citizens (hereafter respondents) brought an action in Federal District Court seeking to enjoin, as a violation of § 10, the construction and operation of water diversion facilities which are part of the California Water Project, a series of water storage and transportation facilities designed to transport water from northern to central and southern California. The District Court held, inter alia, that respondents could avail themselves of a "private cause of action" to enforce § 10, and the Court of Appeals agreed, concluding that the Act was designed for the especial benefit of private parties who may suffer "special injury" caused by unauthorized obstruction to a navigable waterway.
Held:
1. No private action can be implied on behalf of those allegedly injured by a claimed violation of § 10. Pp. 292-298.
(a) Section 10's language, which states no more than a general proscription of certain activities, does not indicate any intent by Congress to provide for private rights of action. Section 10 is the kind of general ban which carries with it no implication of an intent to confer rights on a particular class of persons. P. 294.
(b) Nor is there anything in the legislative history suggesting that § 10 was created for the especial benefit of a particular class. On the contrary, the history suggests the view that the Act was designed to benefit the public at large by empowering the Federal Government to exercise its authority over interstate commerce with respect to obstructions on navigable rivers caused by bridges and similar structures. Pp. 294-296.
2. The question on the merits, raised by petitioner State of California, as to whether the Act requires permits for the state water allocation projects involved in these cases, will not be reached, as the above ruling that there is no private cause of action disposes of the cases. This Court cannot consider the merits of a claim that Congress has not authorized respondents to raise. P. 298.
610 F.2d 581, (CA 9) reversed and remanded.
Roderick E. Walston, San Francisco, Cal., for petitioners.
Elinor H. Stillman, Washington, D. C., for the Federal respondents.
John B. Clark, San Francisco, for respondents Sierra Club, et al.
Justice WHITE delivered the opinion of the Court.
1
Under review here is a decision of the Court of Appeals for the Ninth Circuit holding that private parties may sue under the Rivers and Harbors Appropriation Act of 1899 to enforce § 10 of that Act. An environmental organization and two private citizens (hereafter respondents),1 seek to enjoin the construction and operation of water diversion facilities which are part of the California Water Project (CWP). They rely upon § 10 of the Act, which prohibits "[t]he creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States. . . ."2 Since the Act does not explicitly create a private enforcement mechanism, the initial question presented by these consolidated cases is whether such a private right of action can be implied on behalf of those allegedly injured by a claimed violation of § 10. Petitioner State of California also asks us to decide whether the Act requires permits for the state water allocation projects involved in these cases.
2
* The California Water Project consists of a series of water storage and transportation facilities designed primarily to transport water from the relatively moist climate of northern California to the more arid central and southern portions of the State. The water which will be used by the CWP is initially stored behind dams on the Sacramento River and, as needed, released into the Sacramento-San Joaquin Delta. The CWP then diverts a quantity of this water from the Delta and directs it into canals and aqueducts which will carry it south. The project has both federal and state components. The federal component, the Central Valley Project, is designed in part to provide a constant source of water for irrigation to the Central Valley of California. Water for this project is diverted from the Delta by the Tracy Pumping Plant into the 115-mile Delta-Mendota Canal which transports the water to the Mendota Pool in California's Central Valley. The State Water Project supplies water to both central and southern California by way of the California Aqueduct. Water for this project is drawn from the Delta by the Delta Pumping Plant and deposited in the northern terminus of the California Aqueduct, through which it flows to its destinations in central and southern California.
3
Under the present system the quality of water captured in the north and released into the Delta may be degraded by intruding salt waters from the Pacific Ocean. As a consequence the water which is diverted from the Delta to the Delta-Mendota Canal or the California Aqueduct is potentially of a lesser quality than is the water which is transported to the Delta from storage facilities in the north and from there deposited in the Delta. The State of California has proposed the construction of a 42-mile Peripheral Canal along the eastern edge of the Delta area, which would avoid any mixing of the water from the north with the saline water of the Delta. Instead of depositing water in the Delta, the canal would carry high quality water directly to the Tracy and Delta Pumping Plants.
4
Respondents commenced the present action in 1971 in the United States District Court for the Northern District of California. Sierra Club v. Morton, 400 F.Supp. 610 (1975). Named as defendants were the various federal and state officials who administered the agencies responsible for overseeing the operation, construction, and regulation of the CWP facilities in question.3 Petitioner water agencies, which had contracted with the State for water from the Delta and which had incurred extensive financial obligations in reliance thereon, were permitted to intervene.4 The respondents alleged that present and proposed diversions of water from the Delta degraded the quality of Delta water, and that such diversion violated § 10 of the Rivers and Harbors Appropriation Act of 1899. They sought to enjoin further operation or construction of water diversion facilities until the consent of the Army Corps of Engineers was obtained as required by the Act.
5
The District Court concluded that respondents could avail themselves of a "private cause of action" to enforce § 10 of the Act, and ruled on the merits that approval of the Corps of Engineers was required by § 10 for the Tracy and Delta Pumping Plants and the Peripheral Canal. Sierra Club v. Morton, supra. The Court of Appeals for the Ninth Circuit agreed that a private cause of action to enforce the Act existed. Sierra Club v. Andrus, 610 F.2d 581 (1979). It reversed the District Court as to the Tracy Pumping Plant, however, ruling that Congress has consented to its construction and operation.5 We granted petitions for certiorari filed by the water agencies and the State of California. 449 U.S. 818, 101 S.Ct. 68, 66 L.Ed.2d 2019 (1980).
II
6
Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), outlined a "preferred approach for determining whether a private right of action should be implied from a federal statute. . . ." Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 26, 100 S.Ct. 242, 250, 62 L.Ed.2d 146 (1979) (WHITE, J., dissenting); see Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979). This approach listed four factors thought to be relevant to the inquiry:
7
"First, is the plaintiff 'one of the class for whose especial benefit the statute was enacted,' . . .—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? . . . Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? . . . 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?" 422 U.S., at 78, 95 S.Ct., at 2087.
8
Combined, these four factors present the relevant inquiries to pursue in answering the recurring question of implied causes of action. Cases subsequent to Cort have explained that the ultimate issue is whether Congress intended to create a private right of action, see Universities Research Assn., Inc. v. Coutu, 450 U.S. 754, 771-772, 101 S.Ct. 1451, 1461-1462, 67 L.Ed.2d 662 (1981); Transamerica Mortgage Advisors, Inc. v. Lewis, supra, 444 U.S., at 23-24, 100 S.Ct., at 249; Touche Ross & Co. v. Redington, 442 U.S. 560, 568, 575-576, 99 S.Ct. 2479, 2485, 2489, 61 L.Ed.2d 82 (1979); but the four factors specified in Cort remain the "criteria through which this intent could be discerned." Davis v. Passman, 442 U.S. 228, 241, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979); Transamerica Mortgage Advisors, Inc. v. Lewis, supra, 444 U.S., at 27, 100 S.Ct., at 250 (WHITE, J., dissenting).
9
Under Cort, the initial consideration is whether the plaintiff is a member of a class for " 'whose especial benefit the statute was enacted.' " Cort v. Ash, supra, 422 U.S., at 78, 80-82, 95 S.Ct., at 2087, 2089; see Touche Ross & Co. v. Redington, supra, 442 U.S., at 569-570, 99 S.Ct., at 2485-2486; Cannon v. University of Chicago, supra, 441 U.S., at 689-694, 99 S.Ct., at 1953-1956. Without analyzing either the language or legislative history of the Act, the Court of Appeals here concluded that the Act was designed for the especial benefit of private parties who may suffer "special injury" caused by an unauthorized obstruction to a navigable waterway. It was apparently reasoned that since Congress enacted a statute that forbids such obstructions in navigable waters, any person who would be "especially harmed" by an unauthorized obstruction was an especial beneficiary of the Act. But such a definition of "especial" beneficiary makes this factor meaningless. Under this view, a victim of any crime would be deemed an especial beneficiary of the criminal statute's proscription. Cort did not adopt such a broad-gauge approach. Cort v. Ash, supra, 422 U.S., at 80-82, 95 S.Ct., at 2089. The question is not simply who would benefit from the Act, but whether Congress intended to confer federal rights upon those beneficiaries. See Cannon, supra, 441 U.S., at 690-693, n. 13, 99 S.Ct., at 1954-1956, n. 13.
10
In ascertaining this intent, the first consideration is the language of the Act. Here, the statute states no more than a general proscription of certain activities; it does not unmistakably focus on any particular class of beneficiaries whose welfare Congress intended to further. Such language does not indicate an intent to provide for private rights of action. "There would be far less reason to infer a private remedy in favor of individual persons if Congress, instead of drafting Title IX [of the Education Amendments of 1972] with an unmistakable focus on the benefited class, had written it simply as a ban on discriminatory conduct by recipients of federal funds or as a prohibition against the disbursement of public funds to educational institutions engaged in discriminatory practices." Cannon v. University of Chicago, supra, 441 U.S., at 690-693, 99 S.Ct., at 1954-1956; see also Touche Ross & Co. v. Redington, supra, 442 U.S., at 569, 99 S.Ct., at 2485; Cort v. Ash, supra, 422 U.S., at 80-82, 95 S.Ct., at 2089. Section 10 of the Rivers and Harbors Appropriation Act is the kind of general ban which carries with it no implication of an intent to confer rights on a particular class of persons.
11
Neither the Court of Appeals nor respondents have identified anything in the legislative history suggesting that § 10 was created for the especial benefit of a particular class. On the contrary, the legislative history supports the view that the Act was designed to benefit the public at large by empowering the Federal Government to exercise its authority over interstate commerce with respect to obstructions on navigable rivers caused by bridges and similar structures. In part, the Act was passed in response to this Court's decision in Willamette Iron Bridge Co. v. Hatch, 125 U.S. 1, 8 S.Ct. 811, 31 L.Ed. 629 (1888). There the Court held that there was no federal common law "which prohibits obstructions and nuisances in navigable rivers." Id., at 8, 8 S.Ct., at 814. Although Willamette involved private parties, the clear implication of the Court's opinion was that in the absence of specific legislation no party, including the Federal Government, would be empowered to take any action under federal law with respect to such obstructions. The Act was intended to enable the Secretary of War to take such action.6 See 21 Cong.Rec. 8603, 8605, and 8607 (1890); see also United States v. Pennsylvania Industrial Chemical Corp., 411 U.S. 655, 663-664, 93 S.Ct. 1804, 1811, 36 L.Ed.2d 567 (1973); United States v. Standard Oil Co., 384 U.S. 224, 227-229, 86 S.Ct. 1427, 1428-1429, 16 L.Ed.2d 492 (1966); United States v. Republic Steel Corp., 362 U.S. 482, 485-488, 499-500, 80 S.Ct. 884, 886-888, 894, 4 L.Ed.2d 903 (1960). Congress was not concerned with the rights of individuals.
12
It is not surprising, therefore, that there is no "indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one." Cort v. Ash, 422 U.S., at 78, 82 84, 95 S.Ct., at 2087, 2089-2090; Touche Ross & Co. v. Redington, 442 U.S., at 571, 99 S.Ct., at 2486; Cannon v. University of Chicago, 441 U.S., at 694-703, 99 S.Ct., at 1956-1961. The Court of Appeals recognized as much: "The legislative history of the Rivers and Harbors Act of 1899 does not reflect a congressional intent either to afford a private remedy or to deny one." 610 F.2d, at 588. This silence on the remedy question serves to confirm that in enacting the Act, Congress was concerned not with private rights but with the Federal Government's ability to respond to obstructions on navigable waterways.7
13
As recently emphasized, the focus of the inquiry is on whether Congress intended to create a remedy. Universities Research Assn., Inc. v. Coutu, 450 U.S., at 771-772, 101 S.Ct., at 1462; Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S., at 23-24, 100 S.Ct., at 249; Touche Ross & Co. v. Redington, supra, 442 U.S., at 575-576, 99 S.Ct., at 2489. The federal judiciary will not engraft a remedy on a statute, no matter how salutary, that Congress did not intend to provide. Here consideration of the first two Cort factors is dispositive. The language of the statute and its legislative history do not suggest that the Act was intended to create federal rights for the especial benefit of a class of persons but rather that it was intended to benefit the public at large through a general regulatory scheme to be administered by the then Secretary of War. Nor is there any evidence that Congress anticipated that there would be a private remedy. This being the case, it is unnecessary to inquire further to determine whether the purpose of the statute would be advanced by the judicial implication of a private action or whether such a remedy is within the federal domain of interest. These factors are only of relevance if the first two factors give indication of congressional intent to create the remedy. Touche Ross & Co. v. Redington, supra, at 574-576, 99 S.Ct., at 2488-2489. There being no such indication, the judgment of the Court of Appeals must be reversed.
III
14
Petitioner the State of California urges that we reach the merits of these cases—whether permits are required for the state water allocation projects—regardless of our disposition of the private cause-of-action issue. This we decline to do. Our ruling that there is no private cause of action permitting respondents to commence this action disposes of the cases: we cannot consider the merits of a claim which Congress has not authorized respondents to raise.
15
The judgment of the Court of Appeals is accordingly reversed, and the cases are remanded for proceedings consistent with this opinion.
16
It is so ordered.
17
Justice STEVENS, concurring.
18
In 1888 this Court reversed a decree enjoining the construction of a bridge over a navigable river. Willamette Iron Bridge Co. v. Hatch, 125 U.S. 1, 8 S.Ct. 811, 31 L.Ed.2d 629. The Court's opinion in that case did not question the right of the private parties to seek relief in a federal court; rather, the Court held that no federal rule of law prohibited the obstruction of the navigable waterway.1 Congress responded to the Willamette case in the Rivers and Harbors Act of 1890 by creating a federal prohibition of such obstructions absent a permit from the Secretary of War. 26 Stat. 426, 454. At the time the statute was enacted, I believe the lawyers in Congress simply assumed that private parties in a position comparable to that of the litigants in the Willamette case would have a remedy for any injury suffered by reason of a violation of the new federal statute.2 For at that time the implication of private causes of action was a well-known practice at common law and in American courts.3 Therefore, in my view, the Members of Congress merely assumed that the federal courts would follow the ancient maxim "ubi jus, ibi remedium" and imply a private right of action. See Texas & Pacific Ry. Co. v. Rigsby, 241 U.S. 33, 39-40, 36 S.Ct. 482, 484, 60 L.Ed. 874.4 Accordingly, if I were writing on a clean slate, I would hold that an implied remedy is available to respondents under this statute.
19
The slate, however, is not clean. Because the problem of ascertaining legislative intent that is not expressed in legislation is often so difficult, the Court has wisely developed rules to guide judges in deciding whether a federal remedy is implicitly a part of a federal statute. In Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26, all of my present colleagues subscribed to a unanimous formulation of those rules, and in Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560, a majority of the Court joined my attempt to explain the application of those rules in that case. The Cort v. Ash analysis is therefore a part of our law.5
20
In these cases, I believe the Court correctly concludes that application of the Cort v. Ash analysis indicates that no private cause of action is available. I think it is more important to adhere to the analytical approach the Court has adopted than to base my vote on my own opinion about what Congress probably assumed in 1890. Cf. Florida Dept. of Health & Rehabilitative Services v. Florida Nursing Home Assn., 450 U.S. 147, 151, 101 S.Ct. 1032, 1034, 67 L.Ed.2d 132 (STEVENS, J., concurring). I therefore join Justice WHITE's opinion for the Court.
21
Justice REHNQUIST, with whom THE CHIEF JUSTICE, Justice STEWART, and Justice POWELL join, concurring in the judgment.
22
I agree completely with the conclusion of the Court that in these cases "Congress was not concerned with the rights of individuals" and that "[i]t is not surprising, therefore, that there is no 'indication of legislative intent, explicit or implicit, either to create . . . a [private] remedy or to deny one.' " Ante, at 295.
23
I also agree with the Court's analysis, ante, at 297, where it says:
24
"As recently emphasized, the focus of the inquiry is on whether Congress intended to create a remedy. Universities Research Assn., Inc. v. Coutu, 450 U.S., at 771-772 [101 S.Ct., at 1462]; Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S., at 23-24 [100 S.Ct., at 249]; Touche Ross & Co. v. Redington, [442 U.S.], at 575-576 [99 S.Ct., at 2489]. The federal judiciary will not engraft a remedy on a statute, no matter how salutary, that Congress did not intend to provide."
25
My only difference, and the difference which leads me to write this separate concurrence in the judgment, is that I think the Court's opinion places somewhat more emphasis on Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), than is warranted in light of several more recent "implied right of action" decisions which limit it. These decisions make clear that the so-called Cort factors are merely guides in the central task of ascertaining legislative intent, see Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 15, 100 S.Ct. 242, 245, 62 L.Ed.2d 146 (1979); Touche Ross & Co. v. Redington, 442 U.S. 560, 575-576, 99 S.Ct. 2479, 2489, 61 L.Ed.2d 82 (1979); Cannon v. University of Chicago, 441 U.S. 677, 739-740, 99 S.Ct. 1946, 1979-1980, 60 L.Ed.2d 560 (1979) (POWELL, J., dissenting), that they are not of equal weight, Transamerica, supra, 444 U.S., at 15, 23-24, 100 S.Ct., at 249; Touche Ross, supra, 442 U.S., at 575-576, 99 S.Ct., at 2489 and that in deciding an implied-right-of-action case courts need not mechanically trudge through all four of the factors when the dispositive question of legislative intent has been resolved. Transamerica, supra, 444 U.S., at 24, 100 S.Ct., at 249; Touche Ross, supra, 442 U.S., at 575-576, 99 S.Ct., at 2489; Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 148-149, 100 S.Ct. 960, 967-968, 63 L.Ed.2d 267 (1980). Surely it cannot be seriously argued that a mechanical application of the Cort analysis lends "predictability" to implied-right-of-action jurisprudence: including today's decision, five of the last six statutory implied-right-of-action cases in which we have reviewed analysis by the Courts of Appeals after Cort have resulted in reversal of erroneous Court of Appeals decisions. See Universities Research Assn., Inc. v. Coutu, 450 U.S. 754, 101 S.Ct. 1451, 67 L.Ed.2d 662 (1981); Transamerica, supra; Touche Ross, supra; Cannon, supra. Cf. Northwest Airlines, Inc. v. Transport Workers, 451 U.S. 77, 101 S.Ct. 1571, 67 L.Ed.2d 750. While this may be predictability of a sort, it is not the sort which the Court in Cort v. Ash, supra, or in any other case seeking to afford guidance to statutory construction intended.
26
But in these cases, I am happy to agree with the Court that there is no implied right of action because "[t]he language of the statute and its legislative history do not suggest that the Act was intended to create federal rights for the especial benefit of a class of persons," ante, at 297-298, and because there is no "evidence that Congress anticipated that there would be a private remedy." Ante, at 298.
1
The Sierra Club is a nonprofit California corporation; Hank Schramm is a commercial fisherman active in the San Francisco Bay and Pacific Ocean; and William Dixon is a Sacramento-San Joaquin Delta landowner. See 400 F.Supp. 610, 619 (N.D.Cal.1975).
2
Section 10 of the Rivers and Harbors Appropriation Act of 1899 provides:
"The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited; and it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the United States, outside established harbor lines, or where no harbor lines have been established, except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army; and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, roadstead, haven, harbor, canal, lake, harbor or refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same." 30 Stat. 1151, 33 U.S.C. § 403.
3
The federal defendants were the Secretary of the Interior, the Commissioner of the Bureau of Reclamation, the Secretary of the Army, the Chief of Engineers of the Army Corps of Engineers, and the Division Engineer of the Corps' South Pacific Division. The state defendants were the Secretary for Resources and the Director of the Department of Water Resources. 400 F.Supp., at 620.
4
According to affidavits filed in 1974 in support of motions to intervene, Kern County Water Agency has contracted to purchase up to 1,153,000 acre-feet annually, which is resold primarily to agricultural users. The Metropolitan Water District of Southern California has contracted to purchase up to 2,011,500 acre-feet annually to serve the water needs of an area of some 4,900 square miles with 10 million inhabitants. The Tulare Lake Basin Water Storage District and the Santa Clara Valley Water District have contracted to purchase lesser amounts. See App. 99a-112a.
5
Judge Tang wrote separately to explain why the conclusion that the Tracy Pumping Plant had been authorized by Congress did not conflict with the Ninth Circuit's recent decision in Libby Rod & Gun Club v. Poteat, 594 F.2d 742 (1979). 610 F.2d, at 607.
6
In addition, § 12 of the Act, 33 U.S.C. § 406, provides criminal penalties for violations of the provisions of various sections of the Act, including the provisions of § 10; and, § 17 of the Act, 33 U.S.C. § 413, provides that "[t]he Department of Justice shall conduct the legal proceedings necessary to enforce the provisions of [§ 10]." The creation of one explicit mode of enforcement is not dispositive of congressional intent with respect to other complementary remedies. See Cort v. Ash, 422 U.S. 66, 82-83, n. 14, 95 S.Ct. 2080, 2089-2090, n. 14, 45 L.Ed.2d 26 (1975); Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 29, n. 6, 100 S.Ct. 242, 252, n. 6, 62 L.Ed.2d 146 (1979) (WHITE, J., dissenting). However, here, considering the clear focus of the legislative history on the need to enable the Government to respond to obstructions in navigable waterways, the creation of this enforcement mechanism and the absence of the remedy sought by respondents, certainly reinforces the view that Congress was not concerned with private rights or remedies in designing this legislation.
7
Respondents suggest that the legislative history of the Act must be read in light of the historical context during which the measure was being considered. See Cannon v. University of Chicago, 441 U.S. 677, 698-699, 99 S.Ct. 1946, 1958, 60 L.Ed.2d 560 (1979). That context, they argue, included a general awareness that the obstruction of any navigable stream could have been addressed through the common law of nuisance and that this private remedy had been recognized at one time as federal in nature. Furthermore, they argue that the contemporary legal climate recognized that the abrogation of this federal remedy in cases such as Willamette Iron Bridge Co. v. Hatch, 125 U.S. 1, 8 S.Ct. 811, 31 L.Ed. 629 (1888), did not undermine the accepted view that the enactment of any federal prohibition of obstructions on navigable streams would resurrect the federal private right of action. Congressional silence as to private remedies should be interpreted, therefore, as acquiescing in the accepted view.
For both of these positions respondents rely heavily upon Pennsylvania v. Wheeling & Belmont Bridge Co., 13 How. 518, 14 L.Ed. 249 (1852). There, the State of Pennsylvania sought equitable relief from the construction of a bridge across the Ohio River. The Court took the case under its original jurisdiction, a State being the plaintiff, and, having done so, held that it was empowered to consider all issues presented by the parties, state as well as federal. Respondents suggest that the Wheeling Court held that federal courts were regularly available to entertain actions for nuisance brought by private parties with respect to obstructions on navigable rivers. But nothing in the opinion supports that view. The discussion in that case of the common law of nuisance is based on the Court's position that it was entitled to consider state as well as federal issues in the cause before it. Indeed, that the opinion did not establish a general federal law of nuisance with respect to navigable waterways was a point reiterated in Willamette, supra, 125 U.S., at 15-17, 8 S.Ct., at 818-819. In short, although
there may have been a common-law nuisance cause of action for obstructions of navigable waterways, Wheeling Bridge did not federalize that law. Respondents have cited no decision by this Court that did.
Equally unavailing is respondents' assertion that Wheeling Bridge stands for the broad proposition that if Congress legislated in this area, any prohibition of obstructions would automatically support a private right of action. This position is extrapolated from discussions of the law of nuisance in both Wheeling Bridge, supra, at 604-607 and the subsequent Gilman v. Philadelphia, 3 Wall. 713, 722-724, 18 L.Ed. 96 (1866). In both cases the Court merely expressed agreement with the proposition that a court of equity could enjoin a public nuisance in a case brought by a private person who had sustained specific injury. Whether a congressional enactment prohibiting obstructions would automatically give rise to a private right of action was not an issue raised or discussed in either case.
The most that may be legitimately concluded as to legislative understanding of the law preceding the enactment of this statute is that Congress was aware that the Supreme Court had held that there was no federal law which empowered anyone to contest obstructions to navigable rivers. See 21 Cong.Rec. 8604-8607 (1890). We cannot assume from legislative silence on private rights of action, that Congress anticipated that a general regulatory prohibition of obstructions to navigable streams would provide an automatic basis for a private remedy in the nature of common-law nuisance. The Rivers and Harbors Appropriation Act of 1899 was no doubt in part a legislative response to the Willamette decision. But there is nothing to suggest that that response was intended to do anything more than empower the Federal Government to respond to obstructions in navigable rivers. The broad view supported by respondents is without support.
1
The Willamette Court explained the issue presented as follows:
"The gravamen of the bill was, the obstruction of the navigation of the Willamette River by the defendants, by the erection of the bridge which they were engaged in building. The defendants pleaded the authority of the state legislature for the erection of the bridge. The court held that the work was not done in conformity with the requirements of the state law; but whether it were or not, it lacked the assent of Congress, which assent the court held was necessary in view of that provision in the act of Congress admitting Oregon as a State, which has been referred to. The court held that this provision of the act was tantamount to a declaration that the navigation of the Willamette River should not be obstructed or interfered with; and that any such obstruction or interference, without the consent of Congress, whether by state sanction or not, was a violation of the act of Congress; and that the obstruction complained of was in violation of said act. And this is the principal and important question in this case, namely, whether the erection of a bridge over the Willamette River at Portland was a violation of said act or Congress. If it was not, if it could not be, if the act did not apply to obstructions of this kind, then the case did not arise under the constitution or laws of the United States, unless under some other law referred to in the bill." 125 U.S., at 7-8, 8 S.Ct., at 814.
2
The then-current edition of Cooley's treatise on the Law of Torts 790 (2d ed. 1888) described the common-law remedy for breach of a statutory duty in this way:
"[W]hen the duty imposed by statute is manifestly intended for the protection and benefit of individuals, the common law, when an individual is injured by a breach of the duty, will supply a remedy, if the statute gives none."
A few years earlier this Court quoted with approval an opinion by Judge Cooley in support of its holding that a railroad's breach of a statutory duty to fence its right-of-way gave an injured party an implied damages remedy. See Hayes v. Michigan Central R. Co., 111 U.S. 228, 240, 4 S.Ct. 369, 374, 28 L.Ed. 410.
3
See Anonymous, 6 Mod. 27, 87 Eng.Rep. 791 (1703) (per Holt, C. J.); 2 E. Coke, Institutes on the Laws of England 55 (6th ed. 1681); 3 W. Blackstone, Commentaries *23, *51, *109, *123; 1 Comyns' Digest 433-445 (1822); Couch v. Steel, 3 El. & Bl. 402, 118 Eng.Rep. 1193 (1854). In Comyns' Digest, at 442, the rule was broadly stated:
"So, in every case, where a statute enacts, or prohibits a thing for the benefit of a person, he shall have a remedy upon the same statute for the thing enacted for his advantage, or for the recompence of a wrong done to him contrary to the said law."
4
As Justice Frankfurter stated in dissent in Montana-Dakota Utilities Co. v. Northwestern Public Service Co., 341 U.S. 246, 261-262, 71 S.Ct. 692, 700, 95 L.Ed. 912:
"Courts, unlike administrative agencies, are organs with historic antecedents which bring with them well-defined powers. They do not require explicit statutory authorization for familiar remedies to enforce statutory obligations. Texas & N. O. R. Co. v. Brotherhood of Clerks, 281 U.S. 548, 50 S.Ct. 427, 74 L.Ed. 1034; Virginian R. Co. v. System Federation, 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789; Deckert v. Independence Shares Corp., 311 U.S. 282, 61 S.Ct. 229, 85 L.Ed. 189. A duty declared by Congress does not evaporate for want of a formulated sanction. When Congress has 'left the matter at large for judicial determination,' our function is to decide what remedies are appropriate in the light of the statutory language and purpose and of the traditional modes by which courts compel performance of legal obligations. See Board of Comm'rs v. United States, 308 U.S. 343, 351, 60 S.Ct. 285, 288, 84 L.Ed. 313. If civil liability is appropriate to effectuate the purposes of a statute, courts are not denied this traditional remedy because it is not specifically authorized. Texas & Pac. R. Co. v. Rigsby, 241 U.S. 33, 36 S.Ct. 482, 60 L.Ed. 874; Steele v. Louisville & N. R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173; Tunstall v. Brotherhood of Locomotive Firemen & Enginemen, 323 U.S. 210, 65 S.Ct. 235, 89 L.Ed. 187; cf. De Lima v. Bidwell, 182 U.S. 1, 21 S.Ct. 743, 45 L.Ed. 1041."
5
In a separate concurrence in this case, four Members of the Court have undertaken to explain the legal effect of certain "implied right of action" opinions decided more recently than Cort v. Ash. As THE CHIEF JUSTICE, Justice STEWART, Justice REHNQUIST, and I noted in our separate opinion in University of California Regents v. Bakke, 438 U.S. 265, 408, n. 1, 98 S.Ct. 2733, 2808, n. 1, 57 L.Ed.2d 750, "it is hardly necessary to state that only a majority can speak for the Court" or give an authoritative explanation of the meaning of its judgments.
| 89
|
451 U.S. 304
101 S.Ct. 1784
68 L.Ed.2d 114
CITY OF MILWAUKEE et al., Petitioners,v.States of ILLINOIS AND MICHIGAN.
No. 79-408.
Argued Dec. 2, 1980.
Decided April 28, 1981.
Syllabus
In original proceedings brought by respondent State of Illinois, alleging that petitioners—the city of Milwaukee, its Sewerage Commission, and Milwaukee County's Metropolitan Sewerage Commission—and other Wisconsin cities were polluting Lake Michigan because of overflows of untreated sewage from their sewer systems and discharges of inadequately treated sewage from their treatment plants, this Court recognized the existence of a federal "common law" which could give rise to a claim for abatement of a nuisance caused by interstate water pollution, but declined to exercise original jurisdiction because of the availability of a lower court action. Illinois v. Milwaukee, 406 U.S. 91, 92 S.Ct. 1385, 31 L.Ed.2d 712. Accordingly, Illinois filed suit (and respondent State of Michigan intervened) in Federal District Court seeking abatement, under federal common law, of the public nuisance petitioners were allegedly creating by their discharges. Five months later, Congress passed the Federal Water Pollution Control Act (Act) Amendments of 1972, which established a new system of regulation making it illegal to discharge pollutants into the Nation's waters except pursuant to a permit that incorporated as conditions regulations of the Environmental Protection Agency (EPA) establishing specific effluent limitations. Permits are issued either by the EPA or a qualifying state agency, and petitioners operated their sewer systems under permits issued by the Wisconsin Department of Natural Resources (DNR). While the federal-court action was pending, DNR brought an action in a Wisconsin state court to compel compliance with the permits' requirements, and the state court entered a judgment requiring discharges from the treatment plans to meet effluent limitations in the permits and establishing a timetable for additional construction to control sewage overflows. Thereafter, the District Court found that the existence of a federal common-law nuisance had been proved and entered a judgment specifying effluent limitations for treated sewage and a construction timetable to eliminate overflows that went considerably beyond the terms of petitioners' permits and the state court's enforcement order. The Court of Appeals, ruling that the 1972 Amendments of the Act had not preempted the federal common law of nuisance, upheld the District Court's order as to elimination of overflows, but reversed insofar as the District Court's effluent limitations on treated sewage were more stringent than those in the petitioners' permits and applicable EPA regulations.
Held:
1. Federal common law in an area of national concern is resorted to in the absence of an applicable Act of Congress and because the Court is compelled to consider federal questions which cannot be answered from federal statutes alone. As recognized in Illinois v. Milwaukee, supra, at 107, 92 S.Ct., at 1394, when Congress addresses a question previously governed by a decision rested on federal common law the need for such an unusual exercise of lawmaking by federal courts disappears. Unlike the determination of whether federal law pre-empts state law, which requires evidence of a clear and manifest congressional purpose to preempt state law, the determination of whether federal statutory or federal common law governs starts with the assumption that it is for Congress, not federal courts, to articulate appropriate standards to be applied as a matter of federal law. Pp. 312-317.
2. No federal common-law remedy was available to respondents in this case. Pp. 317-332.
(a) At least so far as concerns respondents' claims, Congress, which viewed the 1972 Amendments of the Act as a "total restructuring" and "complete rewriting" of the existing water pollution legislation considered in Illinois v. Milwaukee, has not left the formulation of appropriate federal standards to the courts through application of often vague and indeterminate nuisance concepts and maxims of equity jurisprudence, but rather has occupied the field through the establishment of a comprehensive regulatory program supervised by an expert administrative agency. Pp. 317-319.
(b) As contemplated by Congress, the problem of effluent limitations for discharges from petitioners' treatment plants has been thoroughly addressed through the administrative scheme established by Congress, and thus there is no basis for a federal court, by reference to federal common law, to impose more stringent limitations. Similarly, the overflows of untreated sewage from petitioners' sewer system have been addressed by the regulatory regime established by the Act, through DNR's imposing conditions suited to further the Act's goals and bringing an enforcement action specifically addressed to the overflow problem. Nor does the absence of overflow effluent limitations in the permits and the state-court enforcement order render federal common law available, since the relevant question is not what concentration of various pollutants will be permitted, but what degree of control will be required in preventing overflows and ensuring that the sewage undergoes treatment. Decision is to be made by the appropriate agency on a case-by-case basis, through the permit procedure, as was done here. Pp. 319-324.
(c) When Illinois v. Milwaukee was decided, Illinois did not have any forum in which to protect its interests unless federal common law were created. However, in the 1972 Amendments, Congress provided ample opportunity for a State affected by decisions of a neighboring State's permit-granting agency to seek redress. Respondents did not avail themselves of the statutory procedures. Pp. 325-326.
(d) Section 510 of the Act, which provides that nothing in the Act shall preclude States from adopting and enforcing limitations on the discharge of pollutants more stringent than those adopted under the Act, does not indicate congressional intent to preserve the federal common-law remedy recognized in Illinois v. Milwaukee. Nothing in § 510 suggests that the States may call upon federal courts to employ federal common law to establish more stringent standards applicable to out-of-state discharges. Nor does a subdivision in the citizen-suit provision of the Act—§ 505(e), which provides that nothing "in this section" shall limit any other remedies which might exist—indicate congressional intent to preserve the federal common-law remedy. It does not mean that the Act as a whole does not supplant formerly available federal common-law actions but means only that the particular section authorizing citizen suits does not do so. Pp. 327-329.
(e) The legislative history of the 1972 Amendments with regard to certain discussions as to provisions relating to the effect of the amendments on pending lawsuits is not relevant. The discussions focused on suits brought under federal statutes, not federal common law; related to suits brought by or against the Federal Government; and did not suggest any intent concerning the continued validity of federal common law. Pp. 329-332.
7th Cir., 599 F.2d 151, vacated and remanded.
Elwin J. Zarwell, Milwaukee, Wis., for petitioners.
Joseph V. Karaganis, Chicago, Ill., for respondents.
Andrew J. Levander, Washington, D. C., for the U. S., as amicus curiae, pro hac vice, by special leave of Court.
Justice REHNQUIST delivered the opinion of the Court.
1
When this litigation was first before us we recognized the existence of a federal "common law" which could give rise to a claim for abatement of a nuisance caused by interstate water pollution. Illinois v. Milwaukee, 406 U.S. 91, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972). Subsequent to our decision, Congress enacted the Federal Water Pollution Control Act Amendments of 1972. We granted certiorari to consider the effect of this legislation on the previously recognized cause of action. 445 U.S. 926, 100 S.Ct. 1310, 63 L.Ed.2d 758.
2
* Petitioners, the city of Milwaukee, the Sewerage Commission of the city of Milwaukee, and the Metropolitan Sewerage Commission of the County of Milwaukee, are municipal corporations organized under the laws of Wisconsin. Together they construct, operate, and maintain sewer facilities serving Milwaukee County, an area of some 420 square miles with a population of over one million people.1 The facilities consist of a series of sewer systems and two sewage treatment plants located on the shores of Lake Michigan 25 and 39 miles from the Illinois border, respectively. The sewer systems are of both the "separated" and "combined" variety. A separated sewer system carries only sewage for treatment; a combined sewer system gathers both sewage and storm water runoff and transports them in the same conduits for treatment. On occasion, particularly after a spell of wet weather, overflows occur in the system which result in the discharge of sewage directly into Lake Michigan or tributaries leading into Lake Michigan.2 The overflows occur at discrete discharge points throughout the system.
3
Respondent Illinois complains that these discharges, as well as the inadequate treatment of sewage at the two treatment plants, constitute a threat to the health of its citizens. Pathogens, disease-causing viruses and bacteria, are allegedly discharged into the lake with the overflows and inadequately treated sewage and then transported by lake currents to Illinois waters. Illinois also alleges that nutrients in the sewage accelerate the eutrophication, or aging, of the lake.3 Respondent Michigan intervened on this issue only.
4
Illinois' claim was first brought to this Court when Illinois sought leave to file a complaint under our original jurisdiction. Illinois v. Milwaukee, supra. We declined to exercise original jurisdiction because the dispute was not between two States, and Illinois had available an action in federal district court. The Court reasoned that federal law applied to the dispute, one between a sovereign State and political subdivisions of another State concerning pollution of interstate waters, but that the various laws which Congress had enacted "touching interstate waters" were "not necessarily the only federal remedies available." Id., at 101, 103, 92 S.Ct., at 1391, 1392. Illinois could appeal to federal common law to abate a public nuisance in interstate or navigable waters. The Court recognized, however, that:
5
"It may happen that new federal laws and new federal regulations may in time pre-empt the field of federal common law of nuisance. But until that time comes to pass, federal courts will be empowered to appraise the equities of the suits alleging creation of a public nuisance by water pollution." Id., at 107, 92 S.Ct., at 1394.
6
On May 19, 1972, Illinois filed a complaint in the United States District Court for the Northern District of Illinois, seeking abatement, under federal common law, of the public nuisance petitioners were allegedly creating by their discharges.4
7
Five months later Congress, recognizing that "the Federal water pollution control program . . . has been inadequate in every vital aspect," S.Rep.No.92-414, p. 7 (1971), U.S.Code Cong. & Admin.News 1972, p. 3668, 2 Legislative History of the Water Pollution Control Act Amendments of 1972 (Committee Print compiled for the Senate Committee on Public Works by the Library of Congress), Ser. No. 93-1, p. 1452 (1973) (hereinafter Leg.Hist.), passed the Federal Water Pollution Control Act Amendments of 1972, Pub.L. 92-500, 86 Stat. 816. The Amendments established a new system of regulation under which it is illegal for anyone to discharge pollutants into the Nation's waters except pursuant to a permit. §§ 301, 402 of the Act, 33 U.S.C. §§ 1311, 1342 (1976 ed. Supp.III). To the extent that the Environmental Protection Agency, charged with administering the Act, has promulgated regulations establishing specific effluent limitations, those limitations are incorporated as conditions of the permit. See generally EPA v. State Water Resources Control Board, 426 U.S. 200, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976). Permits are issued either by the EPA or a qualifying state agency. Petitioners operated their sewer systems and discharged effluent under permits issued by the Wisconsin Department of Natural Resources (DNR), which had duly qualified under § 402(b) of the Act, 33 U.S.C. § 1342(b) (1976 ed. and Supp.III), as a permit-granting agency under the superintendence of the EPA. See EPA v. State Water Resources Control Board, supra, at 208, 96 S.Ct., at 2026. Petitioners did not fully comply with the requirements of the permits and, as contemplated by the Act, § 402(b)(7), 33 U.S.C. § 1342(b)(7), see Wis.Stat.Ann. § 147.29 (West 1974), the state agency brought an enforcement action in state court. On May 25, 1977, the state court entered a judgment requiring discharges from the treatment plants to meet the effluent limitations set forth in the permits and establishing a detailed timetable for the completion of planning and additional construction to control sewage overflows.
8
Trial on Illinois' claim commenced on January 11, 1977. On July 29 the District Court rendered a decision finding that respondents had proved the existence of a nuisance under federal common law, both in the discharge of inadequately treated sewage from petitioners' plants and in the discharge of untreated sewage from sewer overflows. The court ordered petitioners to eliminate all overflows and to achieve specified effluent limitations on treated sewage. App. to Pet. for Cert. F-25—F-26. A judgment order entered on November 15 specified a construction timetable for the completion of detention facilities to eliminate overflows. Separated sewer overflows are to be completely eliminated by 1986; combined sewer overflows by 1989. The detention facilities to be constructed must be large enough to permit full treatment of water from any storm up to the largest storm on record for the Milwaukee area. Id., at D-1. Both the aspects of the decision concerning overflows and concerning effluent limitations, with the exception of the effluent limitation for phosphorus, went considerably beyond the terms of petitioners' previously issued permits and the enforcement order of the state court.
9
On appeal, the Court of Appeals for the Seventh Circuit affirmed in part and reversed in part. 599 F.2d 151. The court ruled that the 1972 Amendments had not pre-empted the federal common law of nuisance, but that "[i]n applying the federal common law of nuisance in a water pollution case, a court should not ignore the Act but should look to its policies and principles for guidance." Id., at 164. The court reversed the District Court insofar as the effluent limitations it imposed on treated sewage were more stringent than those in the permits and applicable EPA regulations. The order to eliminate all overflows, however, and the construction schedule designed to achieve this goal, were upheld.5
II
10
Federal courts, unlike state courts, are not general common-law courts and do not possess a general power to develop and apply their own rules of decision. Erie R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938); United States v. Hudson & Goodwin, 7 Cranch 32, 3 L.Ed. 259 (1812). The enactment of a federal rule in an area of national concern, and the decision whether to displace state law in doing so, is generally made not by the federal judiciary, purposefully insulated from democratic pressures, but by the people through their elected representatives in Congress. Wallis v. Pan American Petroleum Corp., 384 U.S. 63, 68, 86 S.Ct. 1301, 1304, 16 L.Ed.2d 369 (1966).6 Erie recognized as much in ruling that a federal court could not generally apply a federal rule of decision, despite the existence of jurisdiction, in the absence of an applicable Act of Congress.
11
When Congress has not spoken to a particular issue, however, and when there exists a "significant conflict between some federal policy or interest and the use of state law," Wallis, supra, at 68, 86 S.Ct., at 1304,7 the Court has found it necessary, in a "few and restricted" instances, Wheeldin v. Wheeler, 373 U.S. 647, 651, 83 S.Ct. 1441, 1445, 10 L.Ed.2d 605 (1963), to develop federal common law. See, e. g., Clearfield Trust Co. v. United States, 318 U.S. 363, 367, 63 S.Ct. 573, 575, 87 L.Ed. 838 (1943). Nothing in this process suggests that courts are better suited to develop national policy in areas governed by federal common law than they are in other areas, or that the usual and important concerns of an appropriate division of functions between the Congress and the federal judiciary are inapplicable. See TVA v. Hill, 437 U.S. 153, 194, 98 S.Ct. 2279, 2301, 57 L.Ed.2d 117 (1978); Diamond v. Chakrabarty, 447 U.S. 303, 317, 100 S.Ct. 2204, 2212, 65 L.Ed.2d 144 (1980); United States v. Gilman, 347 U.S. 507, 511-513, 74 S.Ct. 695, 697-698, 98 L.Ed. 898 (1954). We have always recognized that federal common law is "subject to the paramount authority of Congress." New Jersey v. New York, 283 U.S. 336, 348, 51 S.Ct. 478, 481, 75 L.Ed. 1104 (1931). It is resorted to "[i]n absence of an applicable Act of Congress," Clearfield Trust, supra, at 367, 63 S.Ct., at 575, and because the Court is compelled to consider federal questions "which cannot be answered from federal statutes alone," D'Oench, Duhme & Co. v. FDIC, 315 U.S. 447, 469, 62 S.Ct. 676, 684, 86 L.Ed. 956 (1942) (Jackson, J., concurring). See also Board of Commissioners v. United States, 308 U.S. 343, 349, 60 S.Ct. 285, 287, 84 L.Ed. 313 (1939); United States v. Little Lake Misere Land Co., 412 U.S. 580, 594, 93 S.Ct. 2389, 2397, 37 L.Ed.2d 187 (1973); Miree v. DeKalb County, 433 U.S. 25, 35, 97 S.Ct. 2490, 2497, 53 L.Ed.2d 557 (1977) (Burger, C. J., concurring in judgment). Federal common law is a "necessary expedient," Committee for Consideration of Jones Falls Sewage System v. Train, 539 F.2d 1006, 1008 (CA4 1976) (en banc), and when Congress addresses a question previously governed by a decision rested on federal common law the need for such an unusual exercise of lawmaking by federal courts disappears. This was pointedly recognized in Illinois v. Milwaukee itself, 406 U.S., at 107, 92 S.Ct., at 1394 ("new federal laws and new federal regulations may in time pre-empt the field of federal common law of nuisance"), and in the lower court decision extensively relied upon in that case, Texas v. Pankey, 441 F.2d 236, 241 (CA10 1971) (federal common law applies "[u]ntil the field has been made the subject of comprehensive legislation or authorized administrative standards") (quoted in Illinois v. Milwaukee, supra, at 107, n. 9, 92 S.Ct., at 1395, n. 9).
12
In Arizona v. California, 373 U.S. 546, 83 S.Ct. 1468, 10 L.Ed.2d 542 (1963), for example, the Court declined to apply the federal common-law doctrine of equitable apportionment it had developed in dealing with interstate water disputes because Congress, in the view of a majority, had addressed the question:
13
"It is true that the Court has used the doctrine of equitable apportionment to decide river controversies between States. But in those cases Congress had not made any statutory apportionment. In this case, we have decided that Congress has provided its own method for allocating among the Lower Basin States the mainstream water to which they are entitled under the Compact. Where Congress has so exercised its constitutional power over waters, courts have no power to substitute their own notions of an 'equitable apportionment' for the apportionment chosen by Congress." Id., at 565-566, 83 S.Ct., at 1480-81.
14
In Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 98 S.Ct. 2010, 56 L.Ed.2d 581 (1978), the Court refused to provide damages for "loss of society" under the general maritime law when Congress had not provided such damages in the Death on the High Seas Act:
15
"We realize that, because Congress has never enacted a comprehensive maritime code, admiralty courts have often been called upon to supplement maritime statutes. The Death on the High Seas Act, however, announces Congress' considered judgment on such issues as the beneficiaries, the limitations period, contributory negligence, survival, and damages. . . . The Act does not address every issue of wrongful-death law, . . . but when it does speak directly to a question, the courts are not free to 'supplement' Congress' answer so thoroughly that the Act becomes meaningless." Id., at 625, 98 S.Ct., at 2015.
16
Thus the question was whether the legislative scheme "spoke directly to a question"—in that case the question of damages—not whether Congress had affirmatively proscribed the use of federal common law. Our "commitment to the separation of powers is too fundamental" to continue to rely on federal common law "by judicially decreeing what accords with 'common sense and the public weal' " when Congress has addressed the problem. TVA v. Hill, supra, at 195, 98 S.Ct., at 2302.8
17
Contrary to the suggestions of respondents, the appropriate analysis in determining if federal statutory law governs a question previously the subject of federal common law is not the same as that employed in deciding if federal law pre-empts state law. In considering the latter question " 'we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.' " Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947)). While we have not hesitated to find pre-emption of state law, whether express or implied, when Congress has so indicated, see Ray v. Atlantic Richfield Co., 435 U.S. 151, 157, 98 S.Ct. 988, 994, 55 L.Ed.2d 179 (1978), or when enforcement of state regulations would impair "federal superintendence of the field," Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248 (1963), our analysis has included "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." San Diego Building Trades Council v. Garmon, 359 U.S. 236, 243, 79 S.Ct. 773, 778, 3 L.Ed.2d 775 (1959). Such concerns are not implicated in the same fashion when the question is whether federal statutory or federal common law governs, and accordingly the same sort of evidence of a clear and manifest purpose is not required. Indeed, as noted, in cases such as the present "we start with the assumption" that it is for Congress, not federal courts, to articulate the appropriate standards to be applied as a matter of federal law.9
III
18
We conclude that, at least so far as concerns the claims of respondents, Congress has not left the formulation of appropriate federal standards to the courts through application of often vague and indeterminate nuisance concepts and maxims of equity jurisprudence, but rather has occupied the field through the establishment of a comprehensive regulatory program supervised by an expert administrative agency. The 1972 Amendments to the Federal Water Pollution Control Act were not merely another law "touching interstate waters" of the sort surveyed in Illinois v. Milwaukee, 406 U.S., at 101-103, 92 S.Ct., at 1391-1392, and found inadequate to supplant federal common law. Rather, the Amendments were viewed by Congress as a "total restructuring" and "complete rewriting" of the existing water pollution legislation considered in that case. 1 Leg.Hist. 350-351 (remarks of Chairman Blatnik of the House Committee which drafted the House version of the Amendments); id., at 359-360 (remarks of Rep. Jones). See S.Rep.No.92-414, p. 95 (1971), 2 Leg.Hist. 1511; id., at 1271 (remarks of Chairman Randolph of the Senate Committee which drafted the Senate version of the Amendments); see also EPA v. State Water Resources Control Board, 426 U.S., at 202-203, 96 S.Ct., at 2023-24.10 Congress' intent in enacting the Amendments was clearly to establish an all-encompassing program of water pollution regulation. Every point source discharge11 is prohibited unless covered by a permit, which directly subjects the discharger to the administrative apparatus established by Congress to achieve its goals. The "major purpose" of the Amendments was "to establish a comprehensive long-range policy for the elimination of water pollution." S.Rep.No.92-414, at 95, 2 Leg.Hist. 1511 (emphasis supplied). No Congressman's remarks on the legislation were complete without reference to the "comprehensive" nature of the Amendments. A House sponsor described the bill as "the most comprehensive and far-reaching water pollution bill we have ever drafted," 1 Leg.Hist. 369 (Rep. Mizell), and Senator Randolph, Chairman of the responsible Committee in the Senate, stated: "It is perhaps the most comprehensive legislation ever developed in its field. It is perhaps the most comprehensive legislation that the Congress of the United States has ever developed in this particular field of the environment." 2 id., at 1269.12 This Court was obviously correct when it described the 1972 Amendments as establishing "a comprehensive program for controlling and abating water pollution." Train v. City of New York, 420 U.S. 35, 37, 95 S.Ct. 839, 841, 43 L.Ed.2d 1 (1975).13 The establishment of such a self-consciously comprehensive program by Congress, which certainly did not exist when Illinois v. Milwaukee was decided, strongly suggests that there is no room for courts to attempt to improve on that program with federal common law. See Texas v. Pankey, 441 F.2d, at 241.14
19
Turning to the particular claims involved in this case, the action of Congress in supplanting the federal common law is perhaps clearest when the question of effluent limitations for discharges from the two treatment plants is considered. The duly issued permits under which the city Commission discharges treated sewage from the Jones Island and South Shore treatment plants incorporate, as required by the Act, see § 402(b)(1), 33 U.S.C. § 1342(b)(1) (1976 ed. and Supp. , the specific effluent limitations established by EPA regulations pursuant to § 301 of the Act, 33 U.S.C. § 1311 (1976 ed. and Supp.III). App. 371-394, 395-424; see 40 CFR § 133.102 (1980). There is thus no question that the problem of effluent limitations has been thoroughly addressed through the administrative scheme established by Congress, as contemplated by Congress. This being so there is no basis for a federal court to impose more stringent limitations than those imposed under the regulatory regime by reference to federal common law, as the District Court did in this case. The Court of Appeals, we believe, also erred in stating:
20
"Neither the minimum effluent limitations prescribed by EPA pursuant to the provisions of the Act nor the effluent limitations imposed by the Wisconsin agency under the National Pollutant Discharge Elimination System limit a federal court's authority to require compliance with more stringent limitations under the federal common law." 599 F.2d, at 173.
21
Federal courts lack authority to impose more stringent effluent limitations under federal common law than those imposed by the agency charged by Congress with administering this comprehensive scheme.
22
The overflows do not present a different case. They are point source discharges and, under the Act, are prohibited unless subject to a duly issued permit. As with the discharge of treated sewage, the overflows, through the permit procedure of the Act, are referred to expert administrative agencies for control. All three of the permits issued to petitioners explicitly address the problem of overflows. The Jones Island and South Shore permits, in addition to covering discharges from the treatment plants, also cover overflows from various lines leading to the plants. As issued on December 24, 1974, these permits require the city Commission "to initiate a program leading to the elimination or control of all discharge overflow and/or bypass points in the [Jones Island or South Shore, respectively] Collector System . . . to assure attainment of all applicable Water Quality Standards." App. 378-379, 416. The specific discharge points are identified. The Commission was required to submit a detailed plan to DNR designed to achieve these objectives, including alternative engineering solutions and cost estimates, file a report on an attached form for all overflows that do occur, install monitoring devices on selected overflow discharge points, and file more detailed quarterly reports on the overflows from those points. The Commission was also required to complete "facilities planning" for the combined sewer area. "The facilities planning elements include a feasibility study, cost-effectiveness analysis and environmental assessment for elimination or control of the discharges from the combined sewers." Quarterly progress reports on this planning are required. Id., at 379. A permit issued to the city on December 18, 1974, covers discharges "from sanitary sewer crossovers, combined sewer crossovers and combined sewer overflows." Id., at 425. Again the discharge points are specifically identified. As to separated sewers, the city "is required to initiate a program leading to the elimination of the sanitary sewer crossovers (gravity) and the electrically operated relief pumps. . . ." Id., at 438. A detailed plan to achieve this objective must be submitted, again with alternative engineering solutions and cost estimates, any overflows must be reported to DNR on a specified form, and monitoring devices are required to be installed on selected points to provide more detailed quarterly reports. As to the combined sewers, the city "is required to initiate a program leading to the attainment of control of overflows from the city's combined sewer system. . . ." Id., at 443. The city is required to cooperate with and assist the city Commission in facilities planning for combined sewers, see supra, this page, submit quarterly progress reports to DNR, file reports on all discharges, and install monitoring devices on selected discharge points to provide more detailed quarterly reports "until the discharges are eliminated or controlled." App. 444.15
23
The enforcement action brought by the DNR in state court resulted in a judgment requiring "[e]limination of any bypassing or overflowing which occurs within the sewerage systems under dry weather by not later than July 1, 1982." Id., at 465. Wet weather overflows from separated sewers were to be subjected to a coordinated effort by the Commissions resulting in correction of the problem by July 1, 1986, pursuant to a plan submitted to the DNR. Id., at 469-471. As to the combined sewer overflows, the Commissions were required to accomplish an abatement project, with design work completed by July 1, 1981, and construction by July 1, 1993. Annual progress reports were required to be submitted to the DNR. Id., at 471-472.
24
It is quite clear from the foregoing that the state agency duly authorized by the EPA to issue discharge permits under the Act has addressed the problem of overflows from petitioners' sewer system. The agency imposed the conditions it considered best suited to further the goals of the Act, and provided for detailed progress reports so that it could continually monitor the situation. Enforcement action considered appropriate by the state agency was brought, as contemplated by the Act, again specifically addressed to the overflow problem. There is no "interstice" here to be filled by federal common law: overflows are covered by the Act and have been addressed by the regulatory regime established by the Act. Although a federal court may disagree with the regulatory approach taken by the agency with responsibility for issuing permits under the Act, such disagreement alone is no basis for the creation of federal common law.16
25
Respondents strenuously argue that federal common law continues to be available, stressing that neither in the permits nor the enforcement order are there any effluent limitations on overflows. This argument, we think, is something of a red herring. The difference in treatment between overflows and treated effluent by the agencies is due to differences in the nature of the problems, not the extent to which the problems have been addressed.17 The relevant question with overflow discharges is not, as with discharges of treated sewage, what concentration of various pollutants will be permitted. Rather the question is what degree of control will be required in preventing overflows and ensuring that the sewage undergoes treatment. This question is answered by construction plans designed to accommodate a certain amount of sewage that would otherwise be discharged on overflow occasions. The EPA has not promulgated regulations mandating specific control guidelines because of a recognition that the problem is "site specific." See, e. g., EPA Program Requirements Memorandum PRM No. 75-34 (Dec. 16, 1975):
26
"The costs and benefits of control of various portions of pollution due to combined sewer overflows and by-passes vary greatly with the characteristics of the sewer and treatment system, the duration, intensity, frequency, and aerial extent of precipitation, the type and extent of development in the service area, and the characteristics, uses and water quality standards of the receiving waters. Decisions on grants for control of combined sewer overflows, therefore, must be made on a case-by-case basis after detailed planning at the local level."
27
See also EPA, Report to Congress on Control of Combined Sewer Overflow in the United States 7-1, 7-13 (MCD-50, 1978). Decision is made on a case-by-case basis, through the permit procedure, as was done here. Demanding specific regulations of general applicability before concluding that Congress has addressed the problem to the exclusion of federal common law asks the wrong question. The question is whether the field has been occupied, not whether it has been occupied in a particular manner.18
28
The invocation of federal common law by the District Court and the Court of Appeals in the face of congressional legislation supplanting it is peculiarly inappropriate in areas as complex as water pollution control. As the District Court noted:
29
"It is well known to all of us that the arcane subject matter of some of the expert testimony in this case was sometimes over the heads of all of us to one height or another. I would certainly be less than candid if I did not acknowledge that my grasp of some of the testimony was less complete than I would like it to be. . . ." App. to Pet. for Cert. F-4.
30
Not only are the technical problems difficult—doubtless the reason Congress vested authority to administer the Act in administrative agencies possessing the necessary expertise—but the general area is particularly unsuited to the approach inevitable under a regime of federal common law. Congress criticized past approaches to water pollution control as being "sporadic" and "ad hoc," S.Rep.No.92-414, p. 95 (1971), 2 Leg.Hist. 1511, apt characterizations of any judicial approach applying federal common law, see Wilburn Boat Co. v. Fireman's Fund Ins. Co., 348 U.S. 310, 319, 75 S.Ct. 368, 373, 99 L.Ed. 337 (1955).
31
It is also significant that Congress addressed in the 1972 Amendments one of the major concerns underlying the recognition of federal common law in Illinois v. Milwaukee. We were concerned in that case that Illinois did not have any forum in which to protect its interests unless federal common law were created. See 406 U.S., at 104, 107, 92 S.Ct., at 1393, 1394. In the 1972 Amendments Congress provided ample opportunity for a State affected by decisions of a neighboring State's permit-granting agency to seek redress. Under § 402(b)(3), 33 U.S.C. § 1342(b)(3), a state permit-granting agency must ensure that any State whose waters may be affected by the issuance of a permit receives notice of the permit application and the opportunity to participate in a public hearing. Wisconsin law accordingly guarantees such notice and hearing, see Wis.Stat.Ann. §§ 147.11, 147.13 (West Supp. 1980-1981). Respondents received notice of each of the permits involved here, and public hearings were held, but they did not participate in them in any way. Section 402(b)(5), 33 U.S.C. § 1342(b)(5), provides that state permit-granting agencies must ensure that affected States have an opportunity to submit written recommendations concerning the permit applications to the issuing State and the EPA, and both the affected State and the EPA must receive notice and a statement of reasons if any part of the recommendations of the affected State are not accepted. Again respondents did not avail themselves of this statutory opportunity. Under § 402(d)(2)(A), 33 U.S.C. § 1342(d)(2)(A) (1976 ed., Supp.III), the EPA may veto any permit issued by a State when waters of another State may be affected. Respondents did not request such action. Under § 402(d)(4) of the Act, 33 U.S.C. § 1342(d)(4) (1976 ed., Supp.III), added in 1977, the EPA itself may issue permits if a stalemate between an issuing and objecting State develops. The basic grievance of respondents is that the permits issued to petitioners pursuant to the Act do not impose stringent enough controls on petitioners' discharges. The statutory scheme established by Congress provides a forum for the pursuit of such claims before expert agencies by means of the permit-granting process. It would be quite inconsistent with this scheme if federal courts were in effect to "write their own ticket" under the guise of federal common law after permits have already been issued and permittees have been planning and operating in reliance on them.
32
Respondents argue that congressional intent to preserve the federal common-law remedy recognized in Illinois v. Milwaukee is evident in §§ 510 and 505(e) of the statute, 33 U.S.C. §§ 1370, 1365(e).19 Section 510 provides that nothing in the Act shall preclude States from adopting and enforcing limitations on the discharge of pollutants more stringent than those adopted under the Act.20 It is one thing, however, to say that States may adopt more stringent limitations through state administrative processes, or even that States may establish such limitations through state nuisance law, and apply them to in-state discharges. It is quite another to say that the States may call upon federal courts to employ federal common law to establish more stringent standards applicable to out-of-state dischargers. Any standards established under federal common law are federal standards, and so the authority of States to impose more stringent standards under § 510 would not seem relevant. Section 510 clearly contemplates state authority to establish more stringent pollution limitations; nothing in it, however, suggests that this was to be done by federal-court actions premised on federal common law.
Subsection 505(e) provides:
33
"Nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any effluent standard or limitation or to seek any other relief (including relief against the Administrator or a State agency)" (emphasis supplied).
34
Respondents argue that this evinces an intent to preserve the federal common law of nuisance. We, however, are inclined to view the quoted provision as meaning what it says: that nothing in § 505, the citizen-suit provision, should be read as limiting any other remedies which might exist.
35
Subsection 505(e) is virtually identical to subsections in the citizen-suit provisions of several environmental statutes.21 The subsection is common language accompanying citizen-suit provisions and we think that it means only that the provision of such suit does not revoke other remedies. It most assuredly cannot be read to mean that the Act as a whole does not supplant formerly available federal common-law actions but only that the particular section authorizing citizen suits does not do so. No one, however, maintains that the citizen-suit provision pre-empts federal common law.
36
We are thus not persuaded that § 505(e) aids respondents in this case, even indulging the unlikely assumption that the reference to "common law" in § 505(e) includes the limited federal common law as opposed to the more routine state common law. See Committee for Consideration of Jones Falls Sewage System v. Train, 539 F.2d, at 1009, n. 9.22
37
The dissent considers "particularly revealing," post, at 343, a colloquy involving Senators Griffin, Muskie, and Hart, concerning the pendency of an action by the EPA against Reserve Mining Co. Senator Griffin expressed concern that "one provision in the conference agreement might adversely affect a number of pending lawsuits brought under the Refuse Act of 1899," including the Reserve Mining litigation. 1 Leg.Hist. 190. The provision which concerned Senator Griffin, enacted as § 402(k), 86 Stat. 883, 33 U.S.C. § 1342(k), provides, in pertinent part:
38
"Until December 31, 1974, in any case where a permit for
39
discharge has been applied for pursuant to this section, but final administrative disposition of such application has not been made, such discharge shall not be a violation of (1) section 301, 306, or 402 of this Act, or (2) section 13 of the Act of March 3, 1899, unless the Administrator or other plaintiff proves that final administrative disposition of such application has not been made because of the failure of the applicant to furnish information reasonably required or requested in order to process the application."
40
Senator Griffin was concerned about the relation between this provision and § 4(a) of the bill, which provided that "[n]o suit, action or other proceeding lawfully commenced by or against the Administrator or any other officer or employee of the United States in his official capacity or in relation to the discharge of his official duties under the Federal Water Pollution Control Act as in effect immediately prior to the date of enactment of the Act shall abate by reason of the taking effect of the amendment made by section 2 of this Act." Senator Griffin stated that "when these provisions are read together, it is not altogether clear what effect is intended with respect to pending Federal court suits against pollutors violating the Refuse Act of 1899."
41
Senator Muskie responded to Senator Griffin's concerns by quoting § 4(a) and stating that "[w]ithout any question it was the intent of the conferees that this provision include enforcement actions brought under the Refuse Act, the Federal Water Pollution Control Act, and any other acts of Congress." 1 Leg.Hist. 193. Later Senator Hart stated: "It is my understanding, . . . after the explanation of the Senator from Maine, that the suit now pending against the Reserve Mining Co., under the Refuse Act of 1899 will in no way be affected nor will any of the other counts under the existing Federal Water Pollution Control Act or other law." Id., at 211.23 When Senator Muskie's and Hart's remarks are viewed in this context it is clear that they do not bear on the issue now before the Court. In the first place, although there was a federal common-law claim in the Reserve Mining litigation, Senator Griffin focused on the Refuse Act of 1899—not federal common law. Senator Muskie, with his reference to "other acts of Congress," rather clearly was not discussing federal common law. Most importantly, however, Senator Muskie based his response to Senator Griffin—that the Reserve Mining suit would not be affected—on a specific section of the bill, § 4(a), which is not applicable to suits other than those brought by or against the Federal Government and pending when the Amendments were enacted. Senator Hart based his response on the explanation given by Senator Muskie. Even if we assumed that the legislators were focusing on the federal common-law aspects of the Reserve Mining litigation (and we do not think they were), Senators Muskie and Hart informed Senator Griffin that the Reserve Mining suit was not affected because of §4(a), and not at all because the Act did not displace the federal common law of nuisance. Senator Griffin's question focused on § 4(a); understandably, so did the assurances he received. Nothing about the colloquy suggests any intent concerning the continued validity of federal common law. The issue simply did not come up because Senator Griffin's concerns were fully answered by a particular section not applicable in the case before us.24
42
We therefore conclude that no federal common-law remedy was available to respondents in this case. The judgment of the Court of Appeals is therefore vacated, and the case is remanded for proceedings consistent with this opinion.
43
It is so ordered.
44
Justice BLACKMUN, with whom Justice MARSHALL and Justice STEVENS join, dissenting.
45
Nine years ago, in Illinois v. Milwaukee, 406 U.S. 91, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972), this Court unanimously determined that Illinois could bring a federal common-law action against the city of Milwaukee, three other Wisconsin cities, and two sewerage commissions. At that time, Illinois alleged that the discharge of raw and untreated sewage by these Wisconsin entities into Lake Michigan created a public nuisance for the citizens of Illinois. The Court remitted the parties to an appropriate federal district court, "whose powers are adequate to resolve the issues." Id., at 108, 92 S.Ct., at 1395.
46
Illinois promptly initiated the present litigation,1 and pursued it through more than three years of pretrial discovery, a 6-month trial that entailed hundreds of exhibits and scores of witnesses, extensive factual findings by the District Court, App. F. to Pet. for Cert., and an exhaustive review of the evidence by the Court of Appeals. 599 F.2d 151, 167-177 (CA7 1979). Today, the Court decides that this 9-year judicial exercise has been just a meaningless charade, cf. Hughes Tool Co. v. Trans World Airlines, Inc., 409 U.S. 363, 389, 390, 93 S.Ct. 647, 661, 662, 34 L.Ed.2d 577 (1973) (dissenting opinion), inasmuch as, it says, the federal common-law remedy approved in Illinois v. Milwaukee was implicitly extinguished by Congress just six months after the 1972 decision. Because I believe that Congress intended no such extinction, and surely did not contemplate the result reached by the Court today, I respectfully dissent.
47
* The Court's analysis of federal common-law displacement rests, I am convinced, on a faulty assumption. In contrasting congressional displacement of the common law with federal pre-emption of state law,2 the Court assumes that as soon as Congress "addresses a question previously governed" by federal common law, "the need for such an unusual exercise of lawmaking by federal courts disappears." Ante, at 314. This "automatic displacement" approach is inadequate in two respects. It fails to reflect the unique role federal common law plays in resolving disputes between one State and the citizens or government of another. In addition, it ignores this Court's frequent recognition that federal common law may complement congressional action in the fulfillment of federal policies.
48
It is well settled that a body of federal common law has survived the decision in Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Erie made clear that federal courts, as courts of limited jurisdiction, lack general power to formulate and impose their own rules of decision. Id., at 78, 58 S.Ct., at 822. The Court, however, did not there upset, nor has it since disturbed, a deeply rooted, more specialized federal common law that has arisen to effectuate federal interests embodied either in the Constitution or an Act of Congress.3 Chief among the federal interests served by this common law are the resolution of interstate disputes and the implementation of national statutory or regulatory policies.3
49
Both before and after Erie, the Court has fashioned federal law where the interstate nature of a controversy renders inappropriate the law of either State. See, e. g., Nebraska v. Wyoming, 325 U.S. 589, 65 S.Ct. 1332, 89 L.Ed. 1815 (1945); Hinderlider v. La Plata Co., 304 U.S. 92, 110, 58 S.Ct. 803, 810, 82 L.Ed. 1202 (1938); Kansas v. Colorado, 206 U.S. 46, 95, 97-98, 27 S.Ct. 655, 666, 667-68, 51 L.Ed. 956 (1907) (apportioning waters of interstate stream). See also Cissna v. Tennessee, 246 U.S. 289, 296, 38 S.Ct. 306, 309, 62 L.Ed. 720 (1918); Howard v. Ingersoll, 13 How. 381, 14 L.Ed. 189 (1852) (resolving interstate boundary conflict). When such disputes arise, it is clear under our federal system that laws of one State cannot impose upon the sovereign rights and interests of another. The Constitution, by Art. III, § 2, explicitly extends the judicial power of the United States to controversies between a State and another State or its citizens, and this Court, in equitably resolving such disputes, has developed a body of "what may not improperly be called interstate common law." Kansas v. Colorado, 206 U.S., at 98, 27 S.Ct., at 667.
50
Long before the 1972 decision in Illinois v. Milwaukee, federal common law enunciated by this Court assured each State the right to be free from unreasonable interference with its natural environment and resources when the interference stems from another State or its citizens. Georgia v. Tennessee Copper Co., 206 U.S. 230, 237-239, 27 S.Ct. 618, 619-20, 51 L.Ed. 1038 (1907); Missouri v. Illinois, 200 U.S. 496, 520, 526, 26 S.Ct. 268, 269, 272, 50 L.Ed. 572 (1906). See New Jersey v. City of New York, 283 U.S. 473, 51 S.Ct. 519, 75 L.Ed. 1176 (1931); New York v. New Jersey, 256 U.S. 296, 41 S.Ct. 492, 65 L.Ed. 937 (1921). The right to such federal protection is a consequence of each State's entry into the Union and its commitment to the Constitution. In the words of Justice Holmes, speaking for the Court:
51
"When the States by their union made the forcible abatement of outside nuisances impossible to each, they did not thereby agree to submit to whatever might be done. They did not renounce the possibility of making reasonable demands on the ground of their still remaining quasi -sovereign interests; and the alternative to force is a suit in this court." Georgia v. Tennessee Copper Co., 206 U.S., at 237, 27 S.Ct., at 619.
52
This Court also has applied federal common law where federally created substantive rights and obligations are at stake. Thus, the Court has been called upon to pronounce common law that will fill the interstices of a pervasively federal framework, or avoid subjecting relevant federal interests to the inconsistencies in the laws of several States. Textile Workers v. Lincoln Mills, 353 U.S. 448, 456-457, 77 S.Ct. 912, 917-18, 1 L.Ed.2d 972 (1957); United States v. Standard Oil Co., 332 U.S. 301, 305, 67 S.Ct. 1604, 1606, 91 L.Ed. 2067 (1947); Clearfield Trust Co. v. United States, 318 U.S. 363, 366-367, 63 S.Ct. 573, 574-75, 87 L.Ed. 838 (1943); D'Oench, Duhme & Co. v. Federal Deposit Ins. Corp., 315 U.S. 447, 62 S.Ct. 676, 86 L.Ed. 956 (1942). If the federal interest is sufficiently strong, federal common law may be drawn upon in settling disputes even though the statute or Constitution alone provides no precise answer to the question posed. See, e. g., Textile Workers v. Lincoln Mills, 353 U.S., at 458, 77 S.Ct., at 918; Clearfield Trust Co. v. United States, 318 U.S., at 368-370, 63 S.Ct., at 575-76. See generally United States v. Little Lake Misere Land Co., 412 U.S. 580, 593, 93 S.Ct. 2389, 2397, 37 L.Ed.2d 187 (1973) ("the inevitable incompleteness presented by all legislation means that interstitial federal law-making is a basic responsibility of the federal courts").
53
Each of these sources of federal common law was recognized in Illinois v. Milwaukee. The Court there concluded that the common law of interstate nuisance supplied the requisite federal-question jurisdiction to bring an action in District Court. In so deciding, the Court reasoned that it was appropriate for federal courts to fashion federal common law "where there is an overriding federal interest in the need for a uniform rule of decision or where the controversy touches basic interests of federalism." 406 U.S., at 105, n. 6, 92 S.Ct., at 1393, n. 6. The Court relied heavily upon interstate air pollution and water allocation cases where the complaining party was a State invoking the Court's original jurisdiction. Id., at 104-106, 92 S.Ct., at 1393-1394. In addition, it recounted the history of federal interstate water quality legislation and suggested that the abiding federal interest in the purity of interstate waters justified application of federal common law. Id., at 101-103, 92 S.Ct., at 1391-1392. Significantly, the Court found no barrier to federal common law despite the number of federal statutes and regulations that already provided remedies to abate pollution in interstate waters. Id., at 103, 92 S.Ct., at 1392.
54
Thus, quite contrary to the statements and intimations of the Court today, ante, at 323, 325, 327, n. 19, Illinois v. Milwaukee did not create the federal common law of nuisance. Well before this Court and Congress acted in 1972, there was ample recognition of and foundation for a federal common law of nuisance applicable to Illinois' situation.4 Congress cannot be presumed to have been unaware of the relevant common-law history, any more than it can be deemed to have been oblivious to the decision in Illinois v. Milwaukee, announced six months prior to the passage of the Federal Water Pollution Control Act Amendments of 1972 (Act or Amendments), 86 Stat. 816. The central question is whether, given its presumed awareness, Congress, in passing these Amendments, intended to prevent recourse to the federal common law of nuisance.
55
The answer to this question, it seems to me, requires a more thorough exploration of congressional intent than is offered by the Court. Congress had "spoken to" the particular problem of interstate water pollution as far back as 1888,5 and in 1948 did so in a broad and systematic fashion with the enactment of the Water Pollution Control Act (also known as the Clean Water Act).6 In Illinois v. Milwaukee, the Court properly regarded such expressions of congressional intent as not an obstacle but an incentive to application of the federal common law. 406 U.S., at 102-103, 92 S.Ct., at 1392-93. The fact that Congress in 1972 once again addressed the complicated and difficult problem of purifying our Nation's waters should not be taken as presumptive evidence, let alone conclusive proof, that Congress meant to foreclose pre-existing approaches to controlling interstate water pollution.7 Where the possible extinction of federal common law is at issue, a reviewing court is obligated to look not only to the magnitude of the legislative action but also with some care to the evidence of specific congressional intent.8
II
56
In my view, the language and structure of the Clean Water Act leaves no doubt that Congress intended to preserve the federal common law of nuisance. Section 505(e) of the Act reads:
57
"Nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any effluent standard or limitation or to seek any other relief (including relief against the Administrator or a State agency)." 33 U.S.C. § 1365(e) (emphasis added).
58
The Act specifically defines "person" to include States, and thus embraces respondents Illinois and Michigan. § 502(5), 33 U.S.C. § 1362(5). It preserves their right to bring an action against the governmental entities who are charged with enforcing the statute. Most important, as succinctly stated by the Court of Appeals in this case: "There is nothing in the phrase 'any statute or common law' that suggests that this provision is limited to state common law." 599 F.2d, at 163. To the best of my knowledge, every federal court that has considered the issue has concluded that, in enacting § 505(e), Congress meant to preserve federal as well as state common law.9
59
Other sections of the Clean Water Act also support the conclusion that Congress in 1972 had no intention of extinguishing the federal common law of nuisance. Although the Act established a detailed and comprehensive regulatory system aimed at eliminating the discharge of pollutants into all navigable waters, it did not purport to impose a unitary enforcement structure for abating water pollution. In particular, Congress expressly provided that the effluent limitations promulgated under the Act do not preclude any State from establishing more stringent limitations. § 510, 33 U.S.C. § 1370. It also made clear that federal officers or agencies are not foreclosed from adopting or enforcing stricter pollution controls and standards than those required by the Act. § 511(a), 33 U.S.C. § 1371(a).
60
Thus, under the statutory scheme, any permit issued by the EPA or a qualifying state agency does not insulate a discharger from liability under other federal or state law.10 To the contrary, the permit granted pursuant to § 402(k), 33 U.S.C. § 1342(k), confers assurances with respect to certain specified sections of the Act, but the requirements under other provisions as well as separate legal obligations remain unaffected. See EPA v. State Water Resources Control Board, 426 U.S. 200, 205, 96 S.Ct. 2022, 2025, 48 L.Ed.2d 578 (1976). Congress plainly anticipated that dischargers might be required to meet standards more stringent than the minimum effluent levels approved by the EPA. Those more stringent standards would necessarily be established by other statutes or by common law. Because the Act contemplates a shared authority between the Federal Government and the individual States, see, e. g., § 101(b), 33 U.S.C. § 1251(b) (1976 ed., Supp.III), it is entirely understandable that Congress thought it neither imperative nor desirable to insist upon an exclusive approach to the improvement of water quality.11
61
The Court offers three responses to this view of congressional intent. With regard to the language of § 505(e), it attributes critical significance to the words "this section," and concludes that Congress meant only to assure that the citizen-suit provision did not extinguish formerly available federal common-law actions. Ante, at 328-330. The Court thus reads § 505(e) as though Congress had said that " 'this section' does not take away any pre-existing remedies, but the remainder of the statute does." This is an extremely strained reading of the statutory language,12 and one that is at odds with the manifest intent of Congress to permit more stringent remedies under both federal and state law. See §§ 510, 511, 33 U.S.C. §§ 1370, 1371. If § 505(e) is to be construed as the Court suggests, then it authorizes the abrogation of all pre-existing rights, both statutory and common law, in the area of water pollution control. The Court's construction therefore, would render suspect, if not meaningless, the Act's other provisions. Rather than interpreting § 505(e) as a license to supplant all legal remedies outside the Act itself, I would construe the reference to "this section" as simply preventing pre-existing rights of action from being subjected to the procedural and jurisdictional limitations imposed by § 505 on persons who would sue under the Act.
62
The Court also relies on certain language contained in the legislative history of the 1972 Amendments. Ante, at 317-319. Based on the remarks of several of the Act's proponents that this was the most comprehensive water pollution bill prepared to date, the Court finds a strong congressional suggestion that there is no room for improvement through the federal common law. But there is nothing talismanic about such generalized references. The fact that legislators may characterize their efforts as more "comprehensive" than prior legislation hardly prevents them from authorizing the continued existence of supplemental legal and equitable solutions to the broad and serious problem addressed.13 Moreover, the Court ignores express statements of legislative intent that contradict its position. The Senate Report accompanying the 1972 legislation explicitly describes the congressional intent informing § 505(e):
63
"It should be noted, however, that the section would specifically preserve any rights or remedies under any other law. Thus, if damages could be shown, other remedies would remain available. Compliance with requirements under this Act would not be a defense to a common law action for pollution damages." S.Rep.No.92-414, p. 81 (1971), reprinted in 2 Legislative History of the Water Pollution Control Act Amendments of 1972 (Committee Print compiled for the Senate Committee on Public Works by the Library of Congress), Ser. No. 93-1, p. 1499 (1973) (Leg.Hist.).14
64
This deliberate preservation of all remedies previously available at common law makes no distinction between the common law of individual States and federal common law. Indeed, the legislative debates indicate that Congress was specifically aware of the presence of federal common law, and intended that it would survive passage of the 1972 Amendments. In one particularly revealing colloquy on the Senate floor, Senator Griffin noted the pendency of a suit challenging the dumping of iron ore pollutants into Lake Superior. 1 Leg.Hist. 191. See Reserve Mining Co. v. EPA, 514 F.2d 492 (CA8 1975) (en banc). The Senator inquired whether the suit, which was based in part on the federal common law of nuisance,15 would be affected by passage of the 1972 Amendments. Senators Muskie16 and Hart each responded that the new legislation would not affect or hinder "the suit now pending against the Reserve Mining Co., under the Refuse Act of 1899 . . .[,] the existing Federal Water Pollution Control Act or other law." 1 Leg.Hist. 211 (Sen. Hart) (emphasis added).17
65
Finally, the Court attaches significance to the fact that the 1972 Amendments provided a more rigorous administrative mechanism for addressing interstate controversies. Ante, at 325-326. The Court evidently regards the provision of a new administrative abatement process as a type of jurisdictional requirement, for it criticizes Illinois' failure to invoke the mechanism before seeking any form of judicial relief. Ante, at 326. Even if this were the case, the new notice and hearing procedure became available only two years after Illinois commenced this action. There is no suggestion that Illinois failed to pursue administrative abatement under the then -applicable federal statute. Indeed, it is undisputed that Illinois made prolonged and diligent efforts to secure administrative relief.18 Nonetheless, the Court in effect concludes that it is not enough to exhaust administrative remedies that existed at the time a common-law action was initiated; a complainant must also be prepared to pursue new and wholly unforeseen administrative avenues even as it seeks a final judgment in federal court. I am aware of no case that adopts so harsh an approach to the pursuit of administrative remedies, and I see no basis for imposing such a requirement in this context.
66
Moreover, contrary to what the Court implies, Congress never intended that failure to participate in the § 402 administrative process would serve as a jurisdictional bar. Nothing in the language of § 402 suggests that a neighboring State's participation in the permit-granting process is anything other than voluntary and optional.19 Indeed, the Conference Committee considering the 1977 amendments to the Act was presented with a proposal that would have made such participation a jurisdiction prerequisite.20 This proposal was not adopted by the Conference Committee, and among its opponents was the Department of Justice. In a letter sent to all conferees, the Department made clear its understanding that, absent such an amendment, the federal common law would continue to be relied upon in the national effort to control water pollution.21
67
The Justice Department's position on the survival of federal common law is consistent with the stance taken by the EPA both in this litigation and throughout the period since the 1972 Amendments were enacted. The EPA in fact has relied upon the federal common law of nuisance in addition to the remedies available under the statute in seeking to protect water quality.22 As the agency charged with enforcing and implementing the Act, EPA's interpretation of the scope and limits of that statute is entitled to considerable deference. See Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965). Where, as here, the agency has publicly and consistently acted upon its interpretation, congressional silence is not without significance, particularly since this area has been a subject of frequent and intense legislative attention. And where, as here, the agency's continued reliance on federal common law is firmly grounded in the language and structure of the statute, I fail to see how the Court can so lightly disregard its interpretation.
III
68
Assuming that Congress did preserve a federal common law of nuisance, and that respondents properly stated federal common-law claims for relief, there remains the question whether the particular common law applied here was reasonable. Because of its ruling, the Court does not explicitly address this question. Nonetheless, in its detailed review of respondents' claims, the Court in effect concludes that the federal common law applied by the District Court and the Court of Appeals was defective. In particular, the Court asserts that federal courts may not exceed the statutory minimum approach sanctioned by Congress, see ante, at 323, and may not use federal power to impose a State's more stringent pollution limitation standards upon out-of-state polluters. See ante, at 327-328. In contrast, I believe the courts below acted correctly in both respects.
69
As the Court of Appeals properly recognized, 599 F.2d, at 164, the determination by Congress to preserve rights of action at federal common law did not grant federal courts the freedom to disregard the statutory and regulatory structure approved by Congress. We noted in Illinois v. Milwaukee that "the various federal environmental protection statutes will not necessarily mark the outer bounds of the federal common law, [but] they may provide useful guidelines in fashioning such rules of decisions." 406 U.S., at 103, n. 5, 92 S.Ct., at 1392, n. 5. These guidelines, however, bear primarily on the problems of proof faced by the parties; they do not determine the exclusive source of the law to be applied.
70
In this instance, problems of proof arise under a familiar form of common-law action. A public nuisance involves unreasonable interference with a right common to the general public.23 Drawing on the Court's decision inGeorgia v. Ten Ye¢s349¢s Copper Co., 206 U.S., at 238-239, 27 S.Ct., at 619-620, the Court of Appeals concluded that nuisance is established at federal common law only if "the defendant is carrying on an activity that is causing an injury or significant threat of injury to some cognizable interest of the complainant." 599 F.2d, at 165. Whether a particular interference qualifies as unreasonable, whether the injury is sufficiently substantial to warrant injunctive relief, and what form that relief should take are questions to be decided on the basis of particular facts and circumstances.24 The judgments at times are difficult, but they do not require courts to perform functions beyond their traditional capacities or experience.25
71
When choosing the precise legal principles to apply, common-law courts draw upon relevant standards of conduct available in their communities. Where federal common law is concerned, "th[is] choice-of-law task is a federal task for federal courts." United States v. Little Lake Misere Land Co., 412 U.S., at 592, 93 S.Ct., at 2396. At the same time, while federal law controls a particular question or problem, state law may furnish an appropriate measure of the content of this federal law. See, e. g., Board of Comm'rs v. United States, 308 U.S. 343, 349-352, 60 S.Ct. 285, 287-89, 84 L.Ed. 313 (1939). See also Textile Workers v. Lincoln Mills, 353 U.S., at 457, 77 S.Ct., at 918; Clearfield Trust Co. v. United States, 318 U.S., at 367, 63 S.Ct., at 575. What the Court today characterizes as the inappropriate application of more stringent standards from Illinois state law in fact reflects a federal common-law court's proper exercise of choice-of-law discretion.26
72
The Act sets forth certain effluent limitations. As did the Court of Appeals,27 a court applying federal common law in a given instance may well decline to impose effluent limitations more stringent than those required by Congress, because the complainant has failed to show that stricter standards will abate the nuisance or appreciably diminish the threat of injury. But it is a far different proposition to pronounce, as does the Court today, that federal courts "lack authority to impose more stringent effluent limitations under federal common law than those imposed" under the statutory scheme. Ante, at 320 (emphasis added). The authority of the federal courts in this area was firmly established by the decision in Illinois v. Milwaukee. In delineating the legitimate scope of the federal common law, the Court there expressly noted the relevance of state standards, adding that "a State with high water-quality standards may well ask that its strict standards be honored and that it not be compelled to lower itself to the more degrading standards of a neighbor." (Emphasis added.) 406 U.S., at 107, 92 S.Ct., at 1394. The Act attributes comparable respect to the strict effluent limitation levels imposed by individual States. § 510, 33 U.S.C. § 1370. Since both the Court and Congress fully expected that neighboring States might differ in their approaches to the regulation of the discharge of pollutants into their navigable waters, it is odd, to say the least, that federal courts should now be deprived of the common-law power to effect a reconciliation of these differences.
73
The problem of controlling overflows is particularly amenable to application of this common-law authority. As the courts below found, see 599 F.2d, at 167-168, the sewer systems operated by petitioners include some 239 bypass or overflow points from which raw sewage is discharged directly into Lake Michigan or into rivers that flow into the lake. In a single month in 1976, discharge from 11 of the 239 discrete overflow points amounted to some 646 million gallons of untreated sewage. Ibid. The trial court determined that these untreated fecal wastes, containing billions of pathogenic bacteria and viruses, are periodically transported by prevailing currents into the Illinois waters of Lake Michigan. The court further found that the presence of these pathogens in Illinois waters poses a significant risk of injury to Illinois residents, threatening to contaminate drinking water supplies and infect swimmers.28
74
Pursuant to the Act, publicly owned treatment works then in existence must apply "secondary treatment as defined by the Administrator" as of July 1, 1977. §§ 301(b)(1)(B), 304(d)(1), 33 U.S.C. §§ 1311(b)(1)(B), 1314(d)(1).29 No provision of the Act explicitly addresses the discharge of raw sewage into public waters from overflow points. Indeed, Congress in 1977 expressed concern that combined sewer overflows were a significant source of untreated sewage polluting the Nation's waters, and it commissioned a study of the problem with a view toward possible further legislation.30 While the Administrator has issued regulations that define secondary treatment in terms of certain minimum levels of effluent quality, he also has acknowledged that combined sewer overflows raise special concerns that must be resolved on a case-by-case basis.31 This record demonstrates that both Congress and the Administrator recognized the inadequacy of the statutory scheme. It surely does not show that these responsible parties intended no role for the federal common law.
75
The lower courts in this case carefully evaluated the regulatory systems developed by each State to deal with the overflow problem. It was determined that the standards promulgated under the Illinois regulatory scheme were more stringent than those developed by the Wisconsin agency or imposed on petitioners under the Wisconsin state-court judgment. See 599 F.2d, at 171-173. The District Court's order imposed standards that reflected the more rigorous approach adopted in Illinois to restore and protect Illinois waters.32 The Court of Appeals noted that Wisconsin had allowed petitioners more time in which to eliminate or "correct" the overflow problem, but that petitioners conceded the feasibility of complying with the District Court's deadlines. Id., at 172, 177. In my view, the Court of Appeals acted responsibly and in a manner wholly consistent with the common-law jurisdiction envisioned by the Court in Illinois v. Milwaukee.
IV
76
There is one final disturbing aspect to the Court's decision. By eliminating the federal common law of nuisance in this area, the Court in effect is encouraging recourse to state law whatever the federal statutory scheme is perceived to offer inadequate protection against pollution from outside the State, either in its enforcement standards or in the remedies afforded. This recourse is now inevitable under a statutory scheme that accords a significant role to state as well as federal law. But in the present context it is also unfortunate, since it undermines the Court's prior conclusion that it is federal rather than state law that should govern the regulation of inter state water pollution. Illinois v. Milwaukee, 406 U.S., at 102, 92 S.Ct., at 1392. Instead of promoting a more uniform federal approach to the problem of alleviating interstate pollution, I fear that today's decision will lead States to turn to their own courts for statutory or common-law assistance in filling the interstices of the federal statute. Rather than encourage such a prospect, I would adhere to the principles clearly enunciated in Illinois v. Milwaukee, and affirm the judgment of the Court of Appeals.
1
It is the statutory responsibility of the city Commission to "project, plan, construct, maintain and establish a sewerage system for the collection, transmission, and disposal of all sewage and drainage of the city." Wis.Stat.Ann. § 62.61(1) (West Supp.1980-1981). The city Commission is specifically given the authority to "plan, construct, and establish all local, district, lateral, intercepting, outfall or other sewers, and all conduits, drains and pumping or other plants, and all buildings, structures, works, apparatus, or agencies, and to lay all mains and pipes, and to create or use all such instrumentalities and means . . . as it deems expedient or necessary for carrying the sewerage system . . . into full effect." § 62.61(1)(d). The county Commission is responsible for the construction of sewers within the metropolitan area but outside city limits. § 59.96(6)(a). The city operates some sewers within the city, although the powers of the city Commission include the use and alteration, in its discretion, of "any or all existing public sewers or drains, including storm-water sewers and drains, in the city." § 62.61(1)(e). Any construction by the city of local or sanitary sewers is subject to the prior written approval of the city Commission. § 62.67.
2
Combined sewers are obviously more susceptible to overflows after storms because the storm water is transported in the same conduits as the sewage. Since groundwater and water from storm sewers occasionally enter separated sewers, overflows in those systems are also more likely during wet weather. When the system is about to exceed its inherent capacity at given points, overflow devices, either mechanical or gravity, are activated, resulting in the discharge of the effluent. See 599 F.2d 151, 167-168.
3
Eutrophication is the natural process by which the nutrient concentration in a body of water gradually increases. The process is allegedly accelerated when nutrients in sewage, particularly phosphorus, are discharged into the water. See id., at 169, n. 39.
4
The complaint also sought relief, in counts II and III, under Illinois statutory and common law. See App. 29-32. The District Court stated that "the case should be decided under the principles of the federal common law of nuisance," App. to Pet. for Cert. F-2, but went on to find liability on all three counts of the complaint, id., at F-24. The Court of Appeals ruled that "it is federal common law and not state statutory or common law that controls in this case, Illinois v. Milwaukee, supra, 406 U.S., at 107, & n. 9, 92 S.Ct., at 1394, & n. 9, and therefore we do not address the state law claims." 599 F.2d, at 177, n. 53. Although respondent Illinois argues this point in its brief, the issue before us is simply whether federal legislation has supplanted federal common law. The question whether state law is also available is the subject of Illinois' petition for certiorari, No. 79-571.
5
The Court of Appeals also rejected petitioners' contentions that there was no in personam jurisdiction under the Illinois long-arm statute, that any exercise of in personam jurisdiction failed to meet the minimum-contacts test of International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), and that venue was improper. 599 F.2d, at 155-157. We agree that, given the existence of a federal common-law claim at the commencement of the suit, prior to the enactment of the 1972 Amendments, personal jurisdiction was properly exercised and venue was also proper.
6
See Hart, The Relations Between State and Federal Law, 54 Colum.L.Rev. 489, 497 (1954) ("[f]ederal intervention has been thought of as requiring special justification, and the decision that such justification has been shown, being essentially discretionary, has belonged in most cases to Congress") (footnote omitted).
7
In this regard we note the inconsistency in Illinois' argument and the decision of the District Court that both federal and state nuisance law apply to this case. If state law can be applied, there is no need for federal common law; if federal common law exists, it is because state law cannot be used.
8
The dissent errs in labeling our approach "automatic displacement," post, at 334. As evident infra, at 317-323, the question whether a previously available federal common-law action has been displaced by federal statutory law involves an assessment of the scope of the legislation and whether the scheme established by Congress addresses the problem formerly governed by federal common law. Our "detailed review of respondents' claims," post, at 348, is such an assessment and not, as the dissent suggests, a consideration of whether the particular common law applied below was reasonable.
The dissent's reference to "the unique role federal common law plays in resolving disputes between one State and the citizens or government of another," post, at 334, does not advance its argument. Whether interstate in nature or not, if a dispute implicates "Commerce . . . among the several States" Congress is authorized to enact the substantive federal law governing the dispute. Although the Court has formulated "interstate common law," Kansas v. Colorado, 206 U.S. 46, 98, 27 S.Ct. 655, 667, 51 L.Ed. 956 (1907), it has done so not because the usual separation-of-powers principles do not apply, but rather because interstate disputes frequently call for the application of a federal rule when Congress has not spoken. When Congress has spoken its decision controls, even in the context of interstate disputes. See Arizona v. California, 373 U.S. 546, 83 S.Ct. 1468, 10 L.Ed.2d 542 (1963).
9
Since the States are represented in Congress but not in the federal courts, the very concerns about displacing state law which counsel against finding pre-emption of state law in the absence of clear intent actually suggest a willingness to find congressional displacement of federal common law. Simply because the opinion in Illinois v. Milwaukee used the term "pre-emption," usually employed in determining if federal law displaces state law, is no reason to assume the analysis used to decide the usual federal-state questions is appropriate here.
10
The dissent considers the Water Pollution Control Act of 1948 "broad and systematic," post, at 338, and emphasizes that the Court in Illinois v. Milwaukee did not view then-existing federal statutes as a barrier to the recognition of federal common law, post, at 337. The suggestion is that the present legislation similarly should be no barrier. This ignores Congress' view that the previous legislation was "inadequate in every vital aspect," 2 Leg.Hist. 1425, and Congress' clear intent, witnessed by the statements and citations in the text, to do something quite different with the 1972 Amendments.
11
"Point source" is defined in § 502(14) of the Act, 33 U.S.C. § 1362(14) (1976 ed., Supp.III), as "any discernible, confined and discrete conveyance . . . from which pollutants are or may be discharged." There is no question that all of the discharges involved in this case are point source discharges.
12
The most casual perusal of the legislative history demonstrates that these views on the comprehensive nature of the legislation were practically universal. See, e. g., 1 Leg.Hist. 343 (Rep. Young); id., at 350 (Rep. Blatnik); id., at 374 (Rep. Clausen); id., at 380 (Rep. Roberts); id., at 425 (Rep. Roe); id., at 450 (Rep. Reuss); id., at 467 (Rep. Dingell); id., at 481 (Rep. Caffery); 2 id., at 1302 (Sen. Cooper); id., at 1408 (Sen. Hart).
13
The Court of Appeals itself recognized that Congress in the 1972 Amendments "established a comprehensive and detailed system for the regulation and eventual elimination of pollutant discharges into the nation's waters." 599 F.2d, at 162.
14
This conclusion is not undermined by Congress' decision to permit States to establish more stringent standards, see § 510, 33 U.S.C. § 1370. While Congress recognized a role for the States, the comprehensive nature of its action suggests that it was the exclusive source of federal law. Cases recognizing that the comprehensive character of a federal program is an insufficient basis to find pre-emption of state law are not in point, since we are considering which branch of the Federal Government is the source of federal law, not whether that law pre-empts state law, see supra, at 316-317. Since federal courts create federal common law only as a necessary expedient when problems requiring federal answers are not addressed by federal statutory law, see supra, at 312-315, the comprehensive character of a federal statute is quite relevant to the present question, while it would not be were the question whether state law, which of course does not depend upon the absence of an applicable Act of Congress, still applied.
15
The regulatory approach of the DNR to overflows reflected in these permit conditions was not plucked out of thin air but rather followed the approach in EPA regulations, issued pursuant to the Act, governing the availability of federal funds for treatment works construction, including construction of facilities to control sewer overflows. The regulations provide, as do the permits, for detailed evaluation of feasibility, engineering alternatives, and costs prior to the commencement of a particular construction project. See 40 CFR §§ 35.903, 35.917 (1980). The "facilities planning" referred to in the permits for control of combined sewer overflows is a term of art defined in exhaustive detail in the EPA regulations, see §§ 35.917-35.917-9. Such facilities planning constitutes the first step in qualifying for federal financial assistance for construction projects. It was the statutorily articulated intent of Congress to make funds available, subject to certain conditions, for projects to control overflows, see §§ 201(g)(1), 212(2)(A), (B), 33 U.S.C. §§ 1281(g)(1), 1292(2)(A), (B) (1976 ed. and Supp.III); see also S.Rep.No.92-414, pp. 40-41 (1971), 2 Leg.Hist. 1458-1459; 1 id., at 165 (Sen. Muskie); 2 id., at 1379 (Sen. Magnuson). We are not impressed with arguments that more in the way of immediate solutions should have been required of the dischargers when such requirements may have had the effect, under EPA regulations requiring exhaustive planning and examination of alternatives, of foreclosing recourse to funds Congress intended to be available.
16
In light of this conclusion we need not consider petitioners' argument that, assuming the availability of a cause of action, the lower courts erred in concluding that respondents' evidence sufficed to establish the existence of a nuisance.
17
See EPA, Benefit Analysis for Combined Sewer Overflow Control 4 (1979) ("regulations governing combined sewer overflows require permits for each outfall . . . they differ from the . . . permits for treatment plants, which specify effluent limitations based on technology or water quality standards. NPDES permits for combined sewer overflows contain no effluent limitations, though they do usually require monitoring and data collection").
18
The point is perhaps made most clear if one asks what inadequacy in the treatment by Congress the courts below rectified through creation of federal common law. In imposing stricter effluent limitations the District Court was not "filling a gap" in the regulatory scheme, it was simply providing a different regulatory scheme. The same is true with overflows. The District Court simply ordered planning and construction designed to achieve more stringent control of overflows than the planning and construction undertaken pursuant to the permits. The same point is evident in examining respondents' arguments. The basic complaint is that the permits issued to petitioners under the Act do not control overflows or treated discharges in a sufficiently stringent manner, not that permits under the Act cannot deal with these subjects or that the instant permits do not do so. At most respondents argue not that the Act is inadequate, as was the legislation considered in Illinois v. Milwaukee, but that these particular permits issued under it are. This does not suffice to create an "interstice" to be filled by federal common law.
19
It must be noted that the legislative activity resulting in the 1972 Amendments largely occurred prior to this Court's decision in Illinois v. Milwaukee. Drafting, filing of Committee Reports, and debate in both houses took place prior to the decision. Only conference activity occurred after. It is therefore difficult to argue that particular provisions were designed to preserve a federal common-law remedy not yet recognized by this Court.
The dissent cites several cases for the proposition that the federal common-law nuisance remedy existed "[l]ong before" Illinois v. Milwaukee. Post, at 335. During the legislative activity resulting in the 1972 Amendments, however, this Court's decision in Ohio v. Wyandotte Chemicals Corp., 401 U.S. 493, 91 S.Ct. 1005, 28 L.Ed.2d 256 (1971), indicated that state common law would control a claim such as Illinois'. Wyandotte, like the present suit, was brought by a State to abate a pollution nuisance created by out-of-state defendants. The Court ruled that "an action such as this, if otherwise cognizable in federal district court, would have to be adjudicated under state law. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)." Id., at 498-499, n. 3, 91 S.Ct., at 1009-10, n. 3. The Court in Illinois v. Milwaukee found it necessary to overrule this statement, see 406 U.S., at 102, n. 3, 92 S.Ct., at 1392, n. 3.
20
In full, § 510, as set forth in 33 U.S.C. § 1370, provides:
"Except as expressly provided in this chapter, nothing in this chapter shall (1) preclude or deny the right of any State or political subdivision thereof or interstate agency to adopt or enforce (A) any standard or limitation respecting discharges of pollutants, or (B) any requirement respecting control or abatement of pollution; except that if any effluent limitation, or other limitation, effluent standard, prohibition, pretreatment standard, or standard of performance is in effect under this chapter, such State or political subdivision or interstate agency may not adopt or enforce any effluent limitation, or other limitation, effluent standard, prohibition, pretreatment standard, or standard of performance which is less stringent than the effluent limitation, or other limitation, effluent standard, prohibition, pretreatment standard, or standard of performance under this chapter; or (2) be construed as impairing or in any manner affecting any right or jurisdiction of the States with respect to the waters (including boundary waters) of such States."
21
See, e. g., § 304(e) of the Clean Air Act, 42 U.S.C. § 7604(e) (1976 ed., Supp.III); § 16(e) of the Deepwater Port Act of 1974, 33 U.S.C. § 1515(e); § 105(g)(5) of the Marine Protection, Research, and Sanctuaries Act of 1972, 33 U.S.C. § 1415(g)(5); § 12(e) of the Noise Control Act of 1972, 42 U.S.C. § 4911(e); § 7002(f) of the Solid Waste Disposal Act, 42 U.S.C. § 6972(f); § 1449(e) of the Safe Drinking Water Act, 42 U.S.C. § 300j-8(e) (1976 ed., Supp.III); § 520(e) of the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. § 1270(e) (1976 ed., Supp.III); and § 20(c)(3) of the Toxic Substances Control Act, 15 U.S.C. § 2619(c)(3).
22
The dissent's criticism of our reading of § 505(e), post, at 341-342, is misplaced.
There is nothing unusual about Congress enacting a particular provision, and taking care that this enactment by itself not disturb other remedies, without considering whether the rest of the Act does so or what other remedies may be available. The fact that the language of § 505(e) is repeated in haec verba in the citizen-suit provisions of a vast array of environmental legislation, see n. 21, supra, indicates that it does not reflect any considered judgment about what other remedies were previously available or continue to be available under any particular statute. The dissent refers to our reading as "extremely strained," but the dissent, in relying on § 505(e) as evidence of Congress' intent to preserve the federal common-law nuisance remedy, must read "nothing in this section" to mean "nothing in this Act." We prefer to read the statute as written. Congress knows how to say "nothing in this Act" when it means to see, e. g., Pub.L. 96-510, § 114(a), 94 Stat. 2795.
23
The dissent states that "Senators Muskie and Hart each responded" as Senator Hart is quoted in the text. Post, at 344. This is not strictly accurate. Senator Muskie never responded as Senator Hart did, but rather as quoted in the text above, with the clear reference to § 4(a). He did not, like Senator Hart, use the phrase "other law" but rather, and of particular significance in the present context, the phrase "any other acts of Congress." This inaccuracy in the dissent appears to be of no little importance, since the dissent attaches great weight to the views of Senator Muskie, see post, at 344, n. 16.
24
In the similar colloquy in the House, also relied upon by the dissent, Representative Wright responded to a question from Representative Dingell in precisely the same manner as Senator Muskie responded to Senator Griffin, relying on § 4(a), and referring to "other acts of Congress." 1 Leg.Hist. 248. Representative Dingell never mentioned federal common law in his question.
The dissent also relies on the failure of Congress to enact, in 1977, an amendment "proposed" by Representative Aspin. Post, at 345-346. This reliance ignores not only the fact that "unsuccessful attempts at legislation are not the best of guides to legislative intent," Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381-382, n. 11, 89 S.Ct. 1794, 1802, n. 11, 23 L.Ed.2d 371 (1969), but also, even assuming the failure to enact the Aspin "proposal" is some indication of Congress' intent in 1977, the "oft-repeated warning" that "the views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one." Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 117-118, 100 S.Ct. 2051, 2060-61, 64 L.Ed.2d 766 (1980). These admonitions do not even come into play, however, since the Aspin proposal was never introduced in either House of Congress; it does not even appear in the Congressional Record. The fate of the Aspin "proposal" has under our precedents dealing with statutory interpretation nothing whatever to do with Congress' intent concerning federal common law when it enacted the 1972 Amendments.
1
This Court's decision was issued April 24, 1972. The complaint was filed in the United States District Court for the Northern District of Illinois on May 19, 1972.
2
I have no quarrel with the Court's distinction between the issues of federalism at stake in assessing congressional pre-emption of state law and the separation-of-powers concerns that are implicated here. But there is more to this distinction than the Court suggests. In deciding whether federal law pre-empts state law, the Court must be sensitive to the potential frustration of national purposes if the States are permitted to control conduct that is the subject of federal regulation. San Diego Building Trades Council v. Garmon, 359 U.S. 236, 244, 79 S.Ct. 773, 777, 3 L.Ed.2d 775 (1959). See Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248 (1963). For this reason, in pre-emption analysis the role of federal law is often determined on an "all or nothing" basis. On the other hand, where federal interests alone are at stake, participation by the federal courts is often desirable, and indeed necessary, if federal policies developed by Congress are to be fully effectuated. See, e. g., Miree v. DeKalb County, 433 U.S. 25, 35, 97 S.Ct. 2490, 2496, 53 L.Ed.2d 557 (1977) (opinion concurring in judgment); United States v. Little Lake Misere Land Co., 412 U.S. 580, 592-593, 93 S.Ct. 2389, 2396-97, 37 L.Ed.2d 187 (1973). The whole concept of interstitial federal lawmaking suggests a cooperative interaction between courts and Congress that is less attainable where federal-state questions are involved.
3
See generally Hill, The Law-Making Power of the Federal Courts: Constitutional Preemption, 67 Colum.L.Rev. 1024, 1026-1042 (1967); Friendly, In Praise of Erie—and of the New Federal Common Law, 39 N.Y.U.L.Rev. 383, 405-422 (1964). See also Leybold, Federal Common Law: Judicially Established Effluent Standards as a Remedy in Federal Nuisance Actions, 7 B.C.Env.Aff.L.Rev. 293 (1978).
4
This Court had not previously indicated that the federal common law of nuisance provided a basis for federal-question jurisdiction under 28 U.S.C. § 1331. But see Texas v. Pankey, 441 F.2d 236 (CA10 1971). As recently as 1971, however, the Court had confirmed the existence of its original jurisdiction to consider a nuisance action brought by one State to vindicate its own sovereign interests or the interests of its citizens as a whole. See Ohio v. Wyandotte Chemicals Corp., 401 U.S. 493, 496, 91 S.Ct. 1005, 1008, 28 L.Ed.2d 256 (citing cases discussed supra, at 335). The significance of Wyandotte was the Court's refusal for prudential reasons to exercise the original jurisdiction that concededly obtained. 401 U.S., at 499-505, 91 S.Ct., at 1010-1013. The additional observation that "[s ]ofar as it appears from the present record, an action such as this, if otherwise cognizable in federal district court, would have to be adjudicated under state law," id., at 498-499, n. 3, 91 S.Ct., at 1009, n. 3 (emphasis added), was explained by the Court one year later as "based on the preoccupation of that litigation with public nuisance under Ohio law." Illinois v. Milwaukee, 406 U.S., at 102, n. 3, 92 S.Ct., at 1392, n. 3.
5
See Act of June 29, 1888, 25 Stat. 209. See also Rivers and Harbors Appropriation Act of 1899, 30 Stat. 1121.
6
Ch. 758, 62 Stat. 1155.
7
The Court at this point, ante, at 314-315, would rely on Arizona v. California, 373 U.S. 546, 83 S.Ct. 1468, 10 L.Ed.2d 542 (1963), and Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 98 S.Ct. 2010, 56 L.Ed.2d 581 (1978). But those cases do not stand for the broad proposition announced today. In Arizona v. California, Congress had developed a formula for apportioning the limited waters of the Colorado River and directed the federal agency to implement the formula. In the face of this express congressional allocation, the Court declined to substitute its own notions of an equitable apportionment. 373 U.S., at 565, 83 S.Ct., at 1480. In Mobil Oil Corp. v. Higginbotham, the Court confronted a statute that had created a precise federal remedy where before there had been none. Since federal law, when the statute was passed, did not address wrongful death on the high seas, and the statute itself expressed no intent to preserve or create federal remedies, the Court acceded to the particularized judgment of Congress. 436 U.S., at 625, 98 S.Ct., at 2015. Unlike the statutes at issue in those two cases, the 1972 Act addressed a broad and complex subject to which state and federal law had previously spoken, and in doing so recognized and encouraged many different approaches to controlling water pollution. See discussion in Part II, infra.
8
Inevitably, a federal court must acknowledge the tension between its obligation to apply the federal common law in implementing an important federal interest, and its need to exercise judicial self-restraint and defer to the will of Congress. Congress, of course, may resolve this tension by making it known that flexible and creative judicial response on a case-by-case basis must yield to an interest in certainty under a comprehensive legislative scheme. At the same time, the fact that Congress can properly check the courts' exercise of federal common law does not mean that it has done so in a specific case. This Court is no more free to disregard expressions of legislative desire to preserve federal common law than it is to overlook congressional intent to curtail it. Indeed, the Court has admonished that statutes will not be construed in derogation of the common law unless such an intent is clear. Isbrandtsen Co. v. Johnson, 343 U.S. 779, 783, 72 S.Ct. 1011, 1014, 96 L.Ed. 1294 (1952) (citing cases). To say that Congress "has spoken," ante, at 316, n. 8, is only to begin the inquiry; the critical question is what Congress has said.
9
E. g., National Sea Clammers Assn. v. City of New York, 616 F.2d 1222, 1233 n. 31 (CA3 1980), cert. granted, 449 U.S. 917, 101 S.Ct. 314, 66 L.Ed.2d 145 (1980); California Tahoe Regional Planning Agency v. Jennings, 594 F.2d 181, 193 (CA9), cert. denied, 444 U.S. 864, 100 S.Ct. 133, 62 L.Ed.2d 86 (1979). See also Illinois v. Outboard Marine Corp., 619 F.2d 623, 626 (CA7 1980), cert. pending, No. 80-126; United States v. Atlantic-Richfield Co., 478 F.Supp. 1215, 1218-1220 (Mont. 1979); United States ex rel. Scott v. United States Steel Corp., 356 F.Supp. 556, 559 (ND Ill. 1973); United States v. Ira S. Bushey & Sons, Inc., 346 F.Supp. 145, 149 (Vt. 1972), aff'd, 487 F.2d 1393 (CA2 1973), cert. denied, 417 U.S. 976, 94 S.Ct. 3182, 41 L.Ed.2d 1146 (1974).
The Court relies on Committee for Consideration of Jones Falls Sewage System v. Train, 539 F.2d 1006, 1009, n. 9 (CA4 1976), in criticizing the "unlikely assumption" that § 505(e) preserved anything other than "the more routine state common law." Ante, at 329. Jones Falls offers no support for this criticism, since it concerned only intrastate pollution of navigable waters. Indeed, the court there assumed the continued applicability of federal common law where a State sought to vindicate its rights in an interstate controversy, 539 F.2d, at 1010, but concluded that because the controversy was entirely local, the state common law of nuisance preserved by § 505(e) furnished the relevant common-law remedy.
10
Cf. New Jersey v. City of New York, 283 U.S. 473, 477, 482-483, 51 S.Ct. 519, 520, 521-22, 75 L.Ed. 1176 (1931) (compliance with permit requirements of federal statute does not bar injunctive relief in federal nuisance action).
11
It is significant that elsewhere in the statute, Congress expressly manifested an intention to foreclose the applicability of other laws. See § 312(f)(1), 33 U.S.C. § 1322(f)(1). Congress thus demonstrated that it was capable of pre-empting a particular area when it chose to do so.
12
The Court points to no other judicial decision that has construed the language of § 505(e) in this fashion. See n. 9, supra.
13
There is nothing new about federal law in this area being characterized by its proponents as comprehensive. Similar claims were made in advancing the legislation in place when Illinois v. Milwaukee was decided. See, e. g., S.Rep.No.462, 80th Cong., 1st Sess., 1 (1947) ("The purpose of the bill (S. 418) is to provide a comprehensive program for preventing abating, and controlling water pollution . . . ."); 94 Cong.Rec. 8195 (1948) ("The bill provides that the Surgeon General shall encourage a comprehensive program for the control of stream pollution between the States and to secure their cooperation in combating this evil." (Rep. Auchincloss)). That a different Congress, 24 years later, deemed this legislation inadequate (see ante, at 318, n. 10), carries no more significance than the postmortems one may expect from the 104th Congress concerning the 1972 Act.
14
See also H.R.Rep.No.92-911, pp. 132, 134 (1972), reprinted in 1 Leg.Hist. 819, 821.
15
Id., at 191. See Reserve Mining Co. v. EPA, 514 F.2d, at 501.
16
The Court previously has observed that Senator Muskie was perhaps the Act's primary author, and has credited his views accordingly. See E. I. du Pont De Nemours & Co. v. Train, 430 U.S. 112, 129, 97 S.Ct. 965, 975, 51 L.Ed.2d 204 (1977); EPA v. National Crushed Stone Assn., 449 U.S. 64, 71, n. 10, 101 S.Ct. 295, 300, n. 10, 66 L.Ed.2d 268 (1980).
17
See 1 Leg.Hist. 191-194. See also id., at 248 (colloquy between Reps. Dingell and Wright); id., at 252 (Rep. Dingell). The Court, ante, at 329-332, elaborately attempts to minimize the fact, recognized by all participants in the Senate colloquy, that the Reserve Mining case involved a common-law nuisance count. In seeking assurances that the pendent litigation would not be "adversely affect[ed]," Senator Griffin stated explicitly that the lawsuit was based on two pre-existing federal statutes and the common law of public nuisance. 1 Leg.Hist. 190-191. Senator Muskie's final response to Senator Griffin indicated his understanding that the suit as a whole would not be affected by the Act. Id., at 194. Moreover, Senator Hart's reference to "other law" in the Reserve Mining case could have pertained only to the common-law counts he had not already mentioned.
This entire discussion of the Reserve Mining case was initiated due to Senator Griffin's concern over the possible retroactive effect of § 402(k) on litigation already commenced. Senators Muskie and Hart, as well as the EPA, took the position that there would be no disruption of the pending action, which had been commenced in February 1972, three months prior to this action. In his letter to Senator Griffin, the EPA General Counsel added a caveat that has obvious significance here:
"[I]t is reasonable to conclude that the courts will not interpret any legislation to deprive them of jurisdiction of pending litigation in the absence of clear and explicit language. There is no such clear and explicit language to this effect in the pending bill." 1 Leg.Hist. 193.
18
Brief for Respondent Illinois 8-9 (describing unsuccessful pursuit of administrative remedies); see 599 F.2d 151, 158 (CA7 1979) (describing administrative processes under statute before 1972).
19
As the Court observes, the scheme established by § 402 "provides a forum for the pursuit" of a neighboring State's claim that the controls to be imposed are not sufficiently stringent. Ante, at 326 (emphasis added). There is nothing inconsistent about making this forum available, and encouraging its use, while at the same time permitting the pursuit of other remedies. If there are problems with the efficiency of such an approach, Congress of course is free to modify the statutory scheme.
20
Following the District Court's ruling in this case, Congressman Aspin of Wisconsin proposed an amendment to § 402:
"Sec. (a) Section 402 of the Federal Water Pollution Control Act is amended by adding at the end thereof the following new subsection:
" '(1) In any case where a State whose waters may be affected by the issuance of a permit under this section fails to submit any recommendations to the permitting State as authorized in subsection (b)(5) of this section, the State failing to make such a submission (and its persons) shall not have standing to bring any action to abate (in whole or in part) as a nuisance under common law in any court of the United States any discharge which would have been the subject of such recommendations.'
"(b) The amendment made by subsection (a) of this section shall be applicable to any action brought to abate (in whole or in part) as a nuisance under common law in any court of the United states any discharge of pollutants, unless a final decision has been rendered prior to the effective date of this amendment." App. to Brief for Respondent Illinois 98a.
The proposal was made after both Houses had debated and passed the 1977 amendments to the Act but before the Conference Committee had met. In his testimony before a House Committee considering the pending bill, Congressman Aspin voiced concern over the recent District Court decision, and suggested that Congress "explicitly express its belief that federal common law has been pre-empted." Hearings before the House Committee on Public Works and Transportation on H.R. 3199, 95th Cong., 1st Sess., 328 (1977).
21
Letter to Senator Muskie from James Moorman, Assistant Attorney General, Land and Natural Resources Division, Oct. 18, 1977:
"The common law serves to give an injured party who may have been neglected by the statute or by an overburdened enforcing agency a form of redress. There is no good argument for removing this opportunity for remedy. The basic principle of the common law of public nuisance is that one is liable for damages caused to another where the benefit of one's action does not outweigh the harm. This is a sound principle. Where it can be shown that pollution has injured someone it should not be a sufficient defense to claim that the generalized standards of a statute have been complied with. Polluters should properly be held to a standard that holds them liable for unnecessarily injuring others and not simply for violating the statutory law. The number of cases under the common law will inevitably be small but where they are meritorious there is no basis for abolishing this cause of action." (Emphasis added.) App. to Brief for Respondent Illinois 101a-103a.
22
See, e. g., Illinois v. Outboard Marine Corp., 619 F.2d 623 (CA7 1980), cert. pending, No. 80-126; United States v. Hooker Chemicals & Plastic Corp., (WDNY No. 79-990, filed Dec. 20, 1979). Several courts have held that the United States can state a claim for relief under the federal common law of nuisance. See, e. g., United States v. Ira S. Bushey & Sons, Inc., 346 F.Supp. 145 (Vt.1972), aff'd, 487 F.2d 1393 (CA2 1973), cert. denied, 417 U.S. 976, 94 S.Ct. 3182, 41 L.Ed.2d 1146 (1974); United States v. Solvents Recovery Serv., 496 F.Supp. 1127 (Conn.1980).
23
Restatement (Second) of Torts § 821B (Tent.Draft No. 16, 1970). See generally W. Prosser, Law of Torts 583-591 (4th ed. 1971); W. Rodgers, Environmental Law 102-107 (1977).
24
See Restatement (Second) of Torts § 821B; Prosser, at 602-606; Note, Federal Common Law in Interstate Water Pollution Disputes, 1973 U.Ill.Law Forum 141, 154-158.
25
See, e. g., Reserve Mining Co. v. EPA, 514 F.2d 492, 506-540 (CA8 1975) (en banc); United States v. Armco Steel Corp., 333 F.Supp. 1073, 1079-1084 (SD Tex. 1971); Commonwealth v. Barnes & Tucker Co., 455 Pa. 392, 319 A.2d 871 (1974); Boomer v. Atlantic Cement Co., 26 N.Y.2d 219, 309 N.Y.S.2d 312, 257 N.E.2d 870 (1970); People ex rel. Stream Control Comm'n v. Port Huron, 305 Mich. 153, 9 N.W.2d 41 (1943); Board of Comm'rs v. Elm Grove Mining Co., 122 W.Va. 442, 9 S.E.2d 813 (1940); Fink v. Board of Trustees, 71 Ill.App.2d 276, 218 N.E.2d 240 (1966); Murphysboro v. Sanitary Water Board, 10 Ill.App.2d 111, 134 N.E.2d 522 (1956). Thus, there can be no merit to the Court's suggestion, ante, at 325, that the technical difficulty of the subject matter renders inappropriate any recourse to the common law. The complexity of a properly presented federal question is hardly a suitable basis for denying federal courts the power to adjudicate. Indeed, the expert agency charged with administering the Act has not hesitated to invoke this common-law jurisdiction where appropriate.
26
Moreover, that the District Court may have abused its discretion is no basis for concluding that state-law standards are irrelevant to the federal common law.
27
599 F.2d, at 167-168. See also unpublished order of the Court of Appeals, App. to Pet. for Cert. B-2 to B-4; unpublished findings of fact and conclusions of law of the District Court, id., at F-1 to F-30.
28
There is little to be gained by undertaking an extensive review of the record evidence on these points. The Court of Appeals did this and concluded that the findings at trial were not clearly erroneous. I see no reason to disturb the Court of Appeals' view of the evidence.
29
Congress in 1977 amended the Act to permit the Administrator to grant extensions of the 1977 deadline under certain conditions. See Pub.L. 95-217, §§ 44, 45, 91 Stat. 1584, 33 U.S.C. §§ 1311(h) and (i) (1976 ed., Supp. III).
30
Pub.L. 95-217, § 70, 91 Stat. 1608. See S.Rep.No.95-370, p. 81 (1977). The study was issued in October 1978. See EPA, Report to Congress on Control of Combined Sewer Overflow in the United States (MCD-50, 1978).
31
See 40 CFR §§ 133.102 and 133.103 (1980). In addition, sewers and pipes that do not lead to a treatment facility are not considered "publicly owned treatment works" for purposes of § 301, 33 U.S.C. § 1311. See 40 CFR § 122.3, p. 70 (1980). In the absence of technology-based treatment requirements for combined sewer overflows, the Administrator mandates an individualized analysis by each system that seeks federal assistance. See EPA, Benefit Analysis for Combined Sewer Overflow Control 3 (1979).
32
While the Wisconsin permit-granting agency and the Wisconsin state courts devised one approach to regulating combined sewer overflows in the Milwaukee system, this alone does not establish that the applicable legal standard under federal common law is the one adopted by Wisconsin. To hold otherwise would in effect nullify a neighboring State's more stringent pollution control standards even in circumstances where, as here, a significant risk of harm to the neighboring State's citizenry has been established; if a polluting State is not violating its own approved standards, a neighboring State with higher standards then has no recourse under the Act. It is in precisely this context that the Court recognized the significance of federal common law. Illinois v. Milwaukee, 406 U.S., at 107-108, 92 S.Ct., at 1394-95.
| 78
|
451 U.S. 390
101 S.Ct. 1830
68 L.Ed.2d 175
UNIVERSITY OF TEXAS et al., Petitioners,v.Walter CAMENISCH.
No. 80-317.
Argued March 31, 1981.
Decided April 29, 1981.
Syllabus
Respondent, a deaf graduate student at petitioner University, filed a complaint in Federal District Court, alleging that the University had violated § 504 of the Rehabilitation Act of 1973 by discriminatorily refusing to pay for a sign-language interpreter for respondent, and declaratory and injunctive relief was sought. Finding a possibility that respondent would be irreparably harmed in the absence of an injunction and that he was likely to prevail on the merits, the District Court, inter alia, granted a preliminary injunction on the condition that respondent post a security bond pending the outcome of the litigation. The Court of Appeals affirmed the grant of the injunction. In the meantime, the University had obeyed the injunction by paying for respondent's interpreter and respondent had been graduated, but the Court of Appeals rejected a suggestion that the case was moot, noting that the issue of who should bear the cost of the interpreter remained to be decided.
Held: The question whether a preliminary injunction should have been issued is moot because the terms of the injunction have been fully and irrevocably carried out, but, as the Court of Appeals correctly noted, the question whether the University must pay for the interpreter remains for trial on the merits. Pp. 393-398.
(a) To suggest that the decisions of the courts below, to the extent that they considered respondent's likelihood of success on the merits in granting a preliminary injunction, were tantamount to decisions on the underlying merits and thus that the preliminary-injunction issue is not truly moot, improperly equates "likelihood of success" with "success" and ignores the significant procedural differences between preliminary and permanent injunctions. P. 394.
(b) Where a federal district court has granted a preliminary injunction, the parties generally will have had the benefit neither of a full opportunity to present their cases nor of a final judicial decision based on the actual merits of the controversy. Thus, when the injunctive aspects of a case become moot on appeal of a preliminary injunction, any issue preserved by an injunction bond can generally not be resolved on appeal, but must be resolved in a trial on the merits. By contrast, where a federal district court has granted a permanent injunction, the parties will already have had their trial on the merits, and even if the case would otherwise be moot, a determination can be had on appeal of the correctness of the trial court's decision on the merits, since the case has been saved from mootness by the injunction bond. Pp. 395-398.
616 F.2d 127 (5th Cir.) vacated and remanded.
Lonny F. Zwiener, Austin, Tex., for petitioners.
Stephen J. Pollak, Washington, D. C., for respondent.
Peter Buscemi, Washington, D. C., for United States, as amicus curiae, by special leave of Court.
Justice STEWART delivered the opinion of the Court.
1
On March 1, 1978, Walter Camenisch, a deaf graduate student at the University of Texas, filed a complaint alleging that the University had violated § 504 of the Rehabilitation Act of 1973, 87 Stat. 394, as amended, 29 U.S.C. § 794 (1976 ed., Supp. III), which provides that "[n]o otherwise qualified handicapped individual in the United States . . . shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." The complaint alleged that the University received federal funds and that the University had discriminatorily refused to pay for a sign-language interpreter for Camenisch. The complaint asked the United States District Court for the Western District of Texas to grant declaratory relief and to "[p]reliminarily and permanently order defendants to appoint an interpreter for the plaintiff while he is a student in good standing at the defendant University."
2
The District Court applied the "Fifth Circuit standard for temporary relief to see if the injunction sought is appropriate." That standard, which was enunciated in Canal Authority of Florida v. Callaway, 489 F.2d 567 (1974), requires that a federal district court consider four factors when deciding whether to grant a preliminary injunction: whether the plaintiff will be irreparably harmed if the injunction does not issue; whether the defendant will be harmed if the injunction does issue; whether the public interest will be served by the injunction; and whether the plaintiff is likely to prevail on the merits. Finding a possibility that Camenisch would be irreparably harmed in the absence of an injunction, and finding a substantial likelihood that Camenisch would prevail on the merits, the District Court granted a preliminary injunction requiring that the University pay for Camenisch's interpreter, but the court did so on the condition that Camenisch "post a security bond in the amount of $3,000.00 pending the outcome of this litigation pursuant to Rule 65(c), F. R. C. P." The District Court also ordered that the action be stayed "pending a final administrative determination on the merits, and that as a condition of preliminary injunctive relief, Plaintiff be required to initiate a complaint with HEW requesting the relief sought herein."
3
The Court of Appeals for the Fifth Circuit likewise applied the Canal Authority test, and found that the balance of hardships weighed in favor of granting an injunction and that Camenisch's claim would be successful on the merits. The Court of Appeals therefore affirmed the grant of the preliminary injunction. 616 F.2d 127. The appellate court ruled, however, that Camenisch was not obligated to pursue any administrative remedy that the Department of Health, Education, and Welfare1 might provide, and it therefore vacated that part of the District Court's order staying the litigation pending administrative action.
4
By the time the Court of Appeals had acted, the University had obeyed the injunction by paying for Camenisch's interpreter, and Camenisch had been graduated. The Court of Appeals, however, rejected a suggestion that the case was therefore moot. The court said: "[A] justiciable issue remains: whose responsibility is it to pay for this interpreter?" Id., at 130-131. We granted certiorari, 449 U.S. 950, 101 S.Ct. 352, 66 L.Ed.2d 213, and Camenisch has now raised the mootness issue before this Court.
5
The Court of Appeals correctly held that the case as a whole is not moot, since, as that court noted, it remains to be decided who should ultimately bear the cost of the interpreter. However, the issue before the Court of Appeals was not who should pay for the interpreter, but rather whether the District Court had abused its discretion in issuing a preliminary injunction requiring the University to pay for him. Brown v. Chote, 411 U.S. 452, 457, 93 S.Ct. 1732, 1735, 36 L.Ed.2d 420; Alabama v. United States, 279 U.S. 229, 49 S.Ct. 266, 73 L.Ed. 675. The two issues are significantly different, since whether the preliminary injunction should have issued depended on the balance of factors listed in Canal Authority, while whether the University should ultimately bear the cost of the interpreter depends on a final resolution of the merits of Camenisch's case.
6
This, then, is simply another instance in which one issue in a case has become moot, but the case as a whole remains alive because other issues have not become moot. See, e. g., Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491. In Ammond v. McGahn, 532 F.2d 325 (C.A.3 1976), for instance, the issue of preliminary injunctive relief became moot, but an issue of damages remained. The court said: "Though the entire case is not moot, the question remains whether the issue of the appropriateness of injunctive relief is moot. If the parties lack a legally cognizable interest in the determination whether the preliminary injunction was properly granted, the sole question before us on this appeal, then we must vacate the district court's order and remand the case for consideration of the remaining issues." Id., at 328. Because the only issue presently before us—the correctness of the decision to grant a preliminary injunction—is moot, the judgment of the Court of Appeals must be vacated and the case must be remanded to the District Court for trial on the merits. See Brown v. Chote, supra.
7
Since Camenisch's likelihood of success on the merits was one of the factors the District Court and the Court of Appeals considered in granting Camenisch a preliminary injunction, it might be suggested that their decisions were tantamount to decisions on the underlying merits and thus that the preliminary-injunction issue is not truly moot. It may be that this was the reasoning of the Court of Appeals when it described its conclusion that the case was not moot as "simply another way of stating the traditional rule that issues raised by an expired injunction are not moot if one party was required to post an injunction bond." 616 F.2d, at 131. This reasoning fails, however, because it improperly equates "likelihood of success" with "success," and what is more important, because it ignores the significant procedural differences between preliminary and permanent injunctions.
8
] The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held. Given this limited purpose, and given the haste that is often necessary if those positions are to be preserved, a preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits. A party thus is not required to prove his case in full at a preliminary-injunction hearing. Progress Development Corp. v. Mitchell, 286 F.2d 222 (C.A.7 1961), and the findings of fact and conclusions of law made by a court granting a preliminary injunction are not binding at trial on the merits, Industrial Bank of Washington v. Tobriner, 132 U.S.App.D.C. 51, 54, 405 F.2d 1321, 1324 (1968); Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 742 (C.A.2 1953). In light of these considerations, it is generally inappropriate for a federal court at the preliminary-injunction stage to give a final judgment on the merits. E. g., Brown v. Chote, supra; Gellman v. Maryland, 538 F.2d 603 (C.A.4 1976); Santiago v. Corporacion de Renovacion Urbana y Vivienda de Puerto Rico, 453 F.2d 794 (C.A.1 1972).
9
Should an expedited decision on the merits be appropriate, Rule 65(a)(2) of the Federal Rules of Civil Procedure provides a means of securing one. That Rule permits a court to "order the trial of the action on the merits to be advanced and consolidated with the hearing of the application." Before such an order may issue, however, the courts have commonly required that "the parties should normally receive clear and unambiguous notice [of the court's intent to consolidate the trial and the hearing] either before the hearing commences or at a time which will still afford the parties a full opportunity to present their respective cases." Pughsley v. 3750 Lake Shore Drive Cooperative Bldg., 463 F.2d 1055, 1057 (C.A.7 1972); Nationwide Amusements, Inc. v. Nattin, 452 F.2d 651 (C.A.4 1971). This procedure was not followed here.
10
In short, where a federal district court has granted a preliminary injunction, the parties generally will have had the benefit neither of a full opportunity to present their cases nor of a final judicial decision based on the actual merits of the controversy. Thus when the injunctive aspects of a case become moot on appeal of a preliminary injunction, any issue preserved by an injunction bond can generally not be resolved on appeal, but must be resolved in a trial on the merits. Where, by contrast, a federal district court has granted a permanent injunction, the parties will already have had their trial on the merits, and, even if the case would otherwise be moot, a determination can be had on appeal of the correctness of the trial court's decision on the merits, since the case has been saved from mootness by the injunction bond.
11
The principle underlying this basic distinction, although sometimes honored in the breach,2 is reflected in the relevant precedents. For instance, in this Court's decision in Liner v. Jafco, Inc., 375 U.S. 301, 84 S.Ct. 391, 11 L.Ed.2d 347, a decision often cited for the proposition that an injunction bond prevents a case from becoming moot, the injunction was permanent, not preliminary. The District Court there had thus reached a final decision on the merits.
12
American Bible Society v. Blount, 446 F.2d 588 (C.A.3 1971), illuminates the distinction from a different angle. In that case, the plaintiffs had secured a preliminary injunction and had posted an injunction bond. When the issue of injunctive relief became moot, the Court of Appeals held that the case as a whole was not moot, since the defendant would "in all likelihood institute suit against the sureties at some future time and, in any such action, the court [would] be faced with deciding the same issues that are in contention here." Id., at 594. The appellate court ruled that liability on the injunction bond could not arise until there was a final judgment in favor of the defendant: "This rule is consistent with the policy considerations behind the injunction bond. The requirement of security is rooted in the belief that a defendant deserves protection against a court order granted without the full deliberation a trial offers." Id., at 595, n. 12. The court therefore remanded the case to the trial court, where such "full deliberation" could take place.
13
In Klein v. Califano, 586 F.2d 250 (C.A.3 1978), the same United States Court of Appeals, sitting en banc, was confronted with a different situation involving a moot injunction which was survived by a possible claim for recoupment on a bond. The court "recognize[d] that part of the rationale of American Bible Society was the policy of the Rule 65 security bond to protect defendants from the consequences of temporary restraining orders granted without opportunity for full deliberation of the merits of a dispute." Id., at 256. Because the District Court in Klein had "had such an opportunity to assess the merits of the complaint and [had] granted summary judgment and a permanent injunction," ibid., the Court of Appeals reached the merits of the case.3
14
The present case is replete with circumstances indicating the necessity for a full trial on the merits in the nisi prius court, where a preliminary injunction has become moot and an injunction bond has been issued. The proceedings here bear the marks of the haste characteristic of a request for a preliminary injunction: the parties have relied on a short stipulation of facts, and even the legal theories on which the University has relied have seemed to change from one level of the proceeding to another. The District Court and the Court of Appeals both properly based their decisions not on the ultimate merits of Camenisch's case but rather on the balance of the Canal Authority factors. While it is true that some of the Court of Appeals' language suggests a conclusion that Camenisch would win on the merits, the court certainly did not hold that the standards for a summary judgment had been met.
15
In sum, the question whether a preliminary injunction should have been issued here is moot, because the terms of the injunction, as modified by the Court of Appeals, have been fully and irrevocably carried out. The question whether the University must pay for the interpreter remains for trial on the merits. Until such a trial has taken place, it would be inappropriate for this Court to intimate any view on the merits of the lawsuit.
16
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.
17
It is so ordered.
18
Chief Justice BURGER, concurring.
19
I join the Court's opinion, but I consider it important to emphasize several aspects of the case, especially as to the regulations.
20
It is undisputed that the University stood willing to permit respondent to have a sign-language interpreter present in the classroom at respondent's expense, and in fact had allowed that for some time prior to the filing of this lawsuit. It is also undisputed that the University's refusal to pay for an interpreter was based solely on the fact that respondent did not meet the University's established income criteria for financial assistance to graduate students.*
21
The Court's opinion, of course, is not to be read as intimating that respondent has any likelihood of success on the merits of his claim. The Court holds no more than that, since there has been no trial, respondent has a right to present evidence in support of his claim. The trial court must, among other things, decide whether the federal regulations at issue, which go beyond the carefully worded nondiscrimination provision of § 504, exceed the powers of the Secretary under § 504. The Secretary has no authority to rewrite the statutory scheme by means of regulations. Southeastern Community College v. Davis, 442 U.S. 397, 410, 99 S.Ct. 2361, 2369, 60 L.Ed.2d 980 (1979); see also Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, 17, 101 S.Ct. 1531, 1540, 67 L.Ed.2d 694 ("[I]f Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously").
1
The Department of Health, Education and Welfare has now become the Department of Health and Human Services.
2
See, e. g., Bright v. Nunn, 448 F.2d 245, 247, n.1 (C.A.6 1971); but see 11 C. Wright & A. Miller, Federal Practice and Procedure § 2950, pp. 492-493 (1973).
3
The Court of Appeals in the present case mistakenly believed that Kinnett Dairies v. Farrow, 580 F.2d 1260 (C.A.5 1978), stands for a contrary principle. In that case, the question of mootness arose because the defendant's solicitation of bids—which had been the subject of the District Court's preliminary injunction—had run its course. The Court of Appeals said: "[T]he history of this controversy reveals the reasonable expectation—indeed, the near certainty—that the act complained of will be repeated. This case is a paradigm of the situation 'capable of repetition yet evading review.' " Id., at 1266 (footnote omitted). The court determined that the plaintiff could not win on the merits, and that the issuance of a preliminary injunction had, therefore, been erroneous. But the court did not say what it would have done had it not concluded that the case was capable of repetition yet avoiding review.
*
Respondent and his wife, who have no children, had a combined gross income in excess of $23,000 per year while he was enrolled as a student. Stipulation of Facts, App. 31. At oral argument, respondent asserted that even a $100,000 annual income would not affect his right to an interpreter at public expense.
The University advised respondent that its policy was to pay for interpreter services when the services were not available from other agencies such as the Texas Rehabilitation Commission and the Texas Commission for the Deaf, provided that "such assistance will be based on a reasonable interpretation of financial need on an individual basis, using guidelines already in effect for Federal and other financial assistance." According to those guidelines, respondent had zero financial need. Id., at 33.
| 89
|
451 U.S. 355
101 S.Ct. 1811
68 L.Ed.2d 150
Germain H. BALL et al., Appellants,v.Roland W. JAMES et al.
No. 79-1740.
Argued Feb. 23, 1981.
Decided April 29, 1981.
Syllabus
The Salt River Project Agricultural Improvement and Power District (District), a governmental entity, stores and delivers untreated water to the owners of 236,000 acres of land in central Arizona, and, to subsidize its water operations, sells electricity to hundreds of thousands of people in an area including a large part of metropolitan Phoenix. Under state law, the system for electing the District's directors limits voting eligibility to landowners and apportions voting power according to the number of acres owned. A class of registered voters living within the District but owning either no land or less than an acre of land there, filed suit, claiming that the election scheme violated the Equal Protection Clause of the Fourteenth Amendment. They alleged that because the District has such governmental powers as the authority to condemn land and sell tax-exempt bonds, and because it sells electricity to virtually half the State's population and exercises significant influence on flood control and environmental management, its policies and actions substantially affect all District residents, regardless of property ownership. The District Court upheld the constitutionality of the voting scheme, but the Court of Appeals reversed. It held that the case was governed by the one-person, one-vote principle established in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506, rather than by the exception to that principle established in Salyer Land Co. v. Tulare Lake Basin Water Storage Dist., 410 U.S. 719, 93 S.Ct. 1224, 35 L.Ed.2d 659, which upheld a state law permitting only landowners to vote for directors of a water district because of its special limited purpose and the disproportionate effect of its activities on landowners as a group.
Held : The District's purpose is sufficiently specialized and narrow and its activities bear on landowners so disproportionately as to release it from the strict demands of the Reynolds principle. As in Salyer, supra, the voting scheme for the District is constitutional because it bears a reasonable relationship to its statutory objectives. Pp. 362-371.
(a) The distinctions between the more diverse and extensive services furnished by the District here and those furnished by the water district involved in Salyer, supra, do not amount to a constitutional difference. The District does not exercise the sort of governmental powers that invoke the strict demands of Reynolds. It cannot impose ad valorem property taxes or sales taxes or enact laws governing citizens' conduct. Nor does it administer normal government functions such as the maintenance of streets, the operation of schools, or sanitation, health, or welfare services. Pp. 365-366.
(b) The District's water functions, which constitute its primary and originating purpose, are relatively narrow. Although unlike in Salyer, as much as 40% of the water delivered by the District goes for nonagricultural, urban purposes, the constitutionally relevant fact is that all water is distributed according to land ownership and the District cannot control the use to which the water is put by the landowners. Pp. 367-368.
(c) Nor is the legality of the District's property-based voting scheme affected by the fact that as one of the largest suppliers of electric power in the State it meets most of its capital and operating costs by the selling of such power. The provision of electricity is not in itself the sort of general or important governmental function that would make the government provider subject to the Reynolds doctrine. And, in any event, the District's electric power functions are only incidental to, and thus cannot change the character of, its water functions. Pp. 368-370.
(d) And the District's functions bear a disproportionate relationship to the specific class of people whom the system makes eligible to vote. Voting landowners are the only residents of the District whose lands are subject to liens to secure District bonds, who are subject to the District's acreage-based taxing power, and who committed capital to the District. Pp. 370-371.
9th Cir., 613 F.2d 180, reversed and remanded.
Rex E. Lee, Washington, D. C., for appellants.
Bruce E. Meyerson, Phoenix, Ariz., for appellees.
Justice STEWART delivered the opinion of the Court.
1
This appeal concerns the constitutionality of the system for electing the directors of a large water reclamation district in Arizona, a system which, in essence, limits voting eligibility to landowners and apportions voting power according to the amount of land a voter owns. The case requires us to consider whether the peculiarly narrow function of this local governmental body and the special relationship of one class of citizens to that body releases it from the strict demands of the one-person, one-vote principle of the Equal Protection Clause of the Fourteenth Amendment.
2
* The public entity at issue here is the Salt River Project Agricultural Improvement and Power District, which stores and delivers untreated water to the owners of land comprising 236,000 acres in central Arizona.1 The District, formed as a governmental entity in 1937, subsidizes its water operations by selling electricity, and has become the supplier of electric power for hundreds of thousands of people in an area including a large part of metropolitan Phoenix. Nevertheless, the history of the District began in the efforts of Arizona farmers in the 19th century to irrigate the arid lands of the Salt River Valley, and, as the parties have stipulated, the primary purposes of the District have always been the storage, delivery, and conservation of water.
3
As early as 1867, farmers in the Salt River Valley attempted to irrigate their lands with water from the Salt River. In 1895, concerned with the erratic and unreliable flow of the river, they formed a "Farmers Protective Association," which helped persuade Congress to pass the Reclamation Act of 1902, 32 Stat. 388, 43 U.S.C. § 371 et seq. Under that Act, the United States gave interest-free loans to help landowners build reclamation projects. The Salt River Project, from which the District developed, was created in 1903 as a result of this legislation. In 1906, Congress authorized projects created under the Act to generate and sell hydroelectric power, 43 U.S.C. § 522, and the Salt River Project has supported its water operations by this means almost since its creation. The 1902 act provided that the water users who benefited from the reclamation project had to agree to repay to the United States the costs of constructing the project, and the Salt River Valley Water Users Association was organized as an Arizona corporation in 1903 to serve as the contracting agent for the landowners. The Association's Articles, drafted in cooperation with the Federal Reclamation Service, gave subscribing landowners the right to reclamation water and the power to vote in Association decisions in proportion to the number of acres the subscribers owned. The Articles also authorize acreage-proportionate stock assessments to raise income for the Association, the assessments becoming a lien on the subscribing owners' land until paid. For almost 15 years, the Federal Reclamation Service operated and maintained the project's irrigation system for the landowners; under a 1917 contract with the United States, however, the Association itself took on these tasks, proceeding to manage the project for the next 20 years.
4
The Association faced serious financial difficulties during the Depression as it built new dams and other works for the project, and it sought a means of borrowing money that would not overly encumber the subscribers' lands. The means seemed to be available in Arizona's Agricultural Improvement District Act of 1922, which authorized the creation of special public water districts within federal reclamation projects. Ariz.Rev.Code of 1928, § 3467 et seq. Such districts, as political subdivisions of the State, could issue bonds exempt from federal income tax. Nevertheless, many Association members opposed creating a special district for the project, in part because the state statute would have required that voting power in elections for directors of the district be distributed per capita among landowners, and not according to the acreage formula for stock assessments and water rights. In 1936, in response to a request from the Association, the state legislature amended the 1922 statute. Under the new statutory scheme, which is essentially the one at issue in this case, the legislature allowed the district to limit voting for its directors to voters, otherwise regularly qualified under state law, who own land within the district, and to apportion voting power among those landowners according to the number of acres owned. Ariz.Rev.Stat.Ann. §§ 45-909, 45-983 (Supp.1980-1981).2 The Salt River Project Agricultural Improvement and Power District was then formed in 1937, its boundaries essentially the same as the Association's. Under the 1937 agreement, the Association made the District its contracting agent, and transferred to the District all its property, and the Association in turn agreed to continue to operate and maintain the Salt River Project. Under the current agreement, the District itself manages the power and water storage work of the project, and the Association, as agent for the District, manages water delivery. As for financing, the statute now permits the special districts to raise money through an acreage-proportionate taxing power that mirrors the Association's stock assessment scheme, Ariz.Rev.Stat.Ann. §§ 45-1014, 45-1015 (1956), or through bonds secured by liens on the real property within the District, though the bonds can simultaneously be secured by District revenues, Ariz.Rev.Stat.Ann. § 45-936 (Supp.1980-1981).
II
5
This lawsuit was brought by a class of registered voters who live within the geographic boundaries of the District, and who own either no land or less than an acre of land within the District. The complaint alleged that the District enjoys such governmental powers as the power to condemn land, to sell tax-exempt bonds, and to levy taxes on real property. It also alleged that because the District sells electricity to virtually half the population of Arizona, and because, through its water operations, it can exercise significant influence on flood control and environmental management within its boundaries, the District's policies and actions have a substantial effect on all people who live within the District, regardless of property ownership. Seeking declaratory and injunctive relief, the appellees claimed that the acreage-based scheme for electing directors of the District violates the Equal Protection Clause of the Fourteenth Amendment.
6
On cross-motions for summary judgment and on stipulated facts, the District Court for the District of Arizona held the District voting scheme constitutional and dismissed the complaint. A divided panel of the Court of Appeals for the Ninth Circuit reversed. 613 F.2d 180. Noting this Court's repeated application of the one-person, one-vote principle established in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506, the Court of Appeals turned its attention to the case in which this Court marked a significant exception to that principle by upholding a state law permitting only landowners to vote in the election of directors of a water district: Salyer Land Co. v. Tulare Lake Basin Water Storage District, 410 U.S. 719, 93 S.Ct. 1224, 35 L.Ed.2d 659. The decision in Salyer resulted from this Court's examination of the nature of the services provided by the water district in that case, and its conclusion that "by reason of its special limited purpose and of the disproportionate effect of its activities on landowners as a group," the water district there was not subject to the strict one-person, one-vote demands of the Reynolds decision. 410 U.S., at 728, 93 S.Ct., at 1229. Accordingly, the Court of Appeals considered the constitutionality of the Salt River District's electoral system by comparing the purposes and effects of the activities of the Salt River District with those of the Tulare Lake Basin Water Storage District.
7
The Court of Appeals stressed that the water district in Salyer covered a sparsely populated area of wholly agricultural land. 613 F.2d, at 183. It also noted that the primary function of the Tulare Lake Basin Water Storage District has remained the storage and delivery of water for agriculture, and that the district did not provide such other general public services as utilities. Ibid. Finally, the Court of Appeals pointed out that the income for the district in Salyer came completely from assessments against the landowners. 613 F.2d, at 183. The Court of Appeals found the Salt River District, at least in its modern form, very different. It pointed out that the Salt River District is a major generator and supplier of hydroelectric power in the State, and that roughly 40% of the water it delivers goes to urban areas for nonagricultural uses. Id., at 183-184. The court therefore concluded that the Salt River District does not serve the sort of special, narrow purpose that proved decisive in Salyer. 613 F.2d, at 183-184. Moreover, though it recognized that the District has $290 million of general obligation bonds outstanding that are secured by a lien on lands owned by the voting members, the Court of Appeals found it significant that all the general obligation bonds have so far been serviced out of the District's electricity revenues, and that all capital improvements have been financed by revenue bonds, which have been issued in the amount of $600 million, and which are junior to the general obligation bonds. Id., at 184. The court thus concluded that the actual financial burden of running the District has not fallen primarily on the voting landowners, and therefore that the activities of this water district, unlike those of the district in Salyer, do not disproportionately affect landowners as such. 613 F.2d, at 184-185.3
8
The Court of Appeals was correct in conceiving the question in this case to be whether the purpose of the District is sufficiently specialized and narrow and whether its activities bear on landowners so disproportionately as to distinguish the District from those public entities whose more general governmental functions demand application of the Reynolds principle. We conclude, however, that, in its efforts to distinguish Salyer the Court of Appeals did not apply these criteria correctly to the facts of this case.
III
9
Reynolds v. Sims, supra, held that the Equal Protection Clause requires adherence to the principle of one-person, one-vote in elections of state legislators. Avery v. Midland County, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45, extended the Reynolds rule to the election of officials of a county government, holding that the elected officials exercised "general governmental powers over the entire geographic area served by the body." 390 U.S., at 485, 88 S.Ct., at 1120.4 The Court, however, reserved any decision on the application of Reynolds to "a special-purpose unit of government assigned the performance of functions affecting definable groups of constituents more than other constituents." 390 U.S., at 483-484, 88 S.Ct., at 1120.5 In Hadley v. Junior College District, 397 U.S. 50, 90 S.Ct. 791, 25 L.Ed.2d 45, the Court extended Reynolds to the election of trustees of a community college district because those trustees "exercised general governmental powers" and "perform[ed] important governmental functions" that had significant effect on all citizens residing within the district. 397 U.S., at 53-54, 90 S.Ct., at 794. But in that case the Court stated: "It is of course possible that there might be some case in which a State elects certain functionaries whose duties are so far removed from normal governmental activities and so disproportionately affect different groups that a popular election in compliance with Reynolds . . . might not be required . . . ." Id., at 56, 90 S.Ct., at 795.6
10
The Court found such a case in Salyer. The Tulare Lake Basin Water Storage District involved there encompassed 193,000 acres, 85% of which were farmed by one or another of four corporations. Salyer Land Co. v. Tulare Lake Basin Water Storage District, 410 U.S., at 723, 93 S.Ct., at 1227. Under California law, public water districts could acquire, store, conserve, and distribute water, and though the Tulare Lake Basin Water Storage District had never chosen to do so, could generate and sell any form of power it saw fit to support its water operations. Id., at 723-724, 93 S.Ct., at 1227. The costs of the project were assessed against each landowner according to the water benefits the landowner received. Id., at 724, 93 S.Ct., at 1227. At issue in the case was the constitutionality of the scheme for electing the directors of the district, under which only landowners could vote, and voting power was apportioned according to the assessed valuation of the voting landowner's property. The Court recognized that the Tulare Lake Basin Water Storage District did exercise "some typical governmental powers," including the power to hire and fire workers, contract for construction of projects, condemn private property, and issue general obligation bonds. Id., at 728, and n. 7, 93 S.Ct., at 1230, and n. 7. Nevertheless, the Court concluded that the district had "relatively limited authority," because "its primary purpose, indeed the reason for its existence, is to provide for the acquisition, storage, and distribution of water for farming in the Tulare Lake Basin." Id., at 728, 93 S.Ct., at 1229. (footnote omitted). The Court also noted that the financial burdens of the district could not but fall on the landowners, in proportion to the benefits they received from the district, and that the district's actions therefore disproportionately affected the voting landowners. Id., at 729, 93 S.Ct., at 1230.7 The Salyer Court thus held that the strictures of Reynolds did not apply to the Tulare District, and proceeded to inquire simply whether the statutory voting scheme based on land valuation at least bore some relevancy to the statute's objectives.8 The Court concluded that the California Legislature could have reasonably assumed that without voting power apportioned according to the value of their land, the landowners might not have been willing to subject their lands to the lien of the very assessments which made the creation of the district possible. 410 U.S., at 731, 93 S.Ct., at 1231.
11
As noted by the Court of Appeals, the services currently provided by the Salt River District are more diverse and affect far more people than those of the Tulare Lake Basin Water Storage District. Whereas the Tulare District included an area entirely devoted to agriculture and populated by only 77 persons, the Salt River District includes almost half the population of the State, including large parts of Phoenix and other cities. Moreover, the Salt River District, unlike the Tulare District, has exercised its statutory power to generate and sell electric power, and has become one of the largest suppliers of such power in the State. Further, whereas all the water delivered by the Tulare District went for agriculture, roughly 40% of the water delivered by the Salt River District goes to urban areas or is used for nonagricultural purposes in farming areas.9 Finally whereas all operating costs of the Tulare District were born by the voting landowners through assessments apportioned according to land value, most of the capital and operating costs of the Salt River District have been met through the revenues generated by the selling of electric power.10 Nevertheless, a careful examination of the Salt River District reveals that, under the principles of the Avery, Hadley, and Salyer cases, these distinctions do not amount to a constitutional difference.
12
First, the District simply does not exercise the sort of governmental powers that invoke the strict demands of Reynolds. The District cannot impose ad valorem property taxes or sales taxes. It cannot enact any laws governing the conduct of citizens, nor does it administer such normal functions of government as the maintenance of streets, the operation of schools, or sanitation, health, or welfare services.11 Second, though they were characterized broadly by the Court of Appeals, even the District's water functions, which constitute the primary and originating purpose of the District, are relatively narrow. The District and Association do not own, sell, or buy water, nor do they control the use of any water they have delivered. The District simply stores water behind its dams, conserves it from loss, and delivers it through project canals.12 It is true, as the Court of Appeals noted, that as much as 40% of the water delivered by the District goes for nonagricultural purposes. But the distinction between agricultural and urban land is of no special constitutional significance in this context. The constitutionally relevant fact is that all water delivered by the Salt River District, like the water delivered by the Tulare Lake Basin Water Storage District, is distributed according to land ownership,13 and the District does not and cannot control the use to which the landowners who are entitled to the water choose to put it. As repeatedly recognized by the Arizona courts, though the state legislature has allowed water districts to become nominal public entities in order to obtain inexpensive bond financing, the districts remain essentially business enterprises, created by and chiefly benefiting a specific group of landowners. Niedner v. Salt River Project Agricultural Improvement and Power Dist., 121 Ariz. 331, 590 P.2d 447; Uhlmann v. Wren, 97 Ariz. 366, 374, 401 P.2d 113, 124; Local 266, I.B.E.W. v. Salt River Project Agricultural Improvement and Power Dist., 78 Ariz. 30, 41-42, 275 P.2d 393, 402. As in Salyer, the nominal public character of such an entity cannot transform it into the type of governmental body for which the Fourteenth Amendment demands a one-person, one-vote system of election.14
13
Finally, neither the existence nor size of the District's power business affects the legality of its property-based voting scheme. As this Court has noted in a different context, the provision of electricity is not a traditional element of governmental sovereignty, Jackson v. Metropolitan Edison Co., 419 U.S. 345, 353, 95 S.Ct. 449, 454, 42 L.Ed.2d 477, and so is not in itself the sort of general or important governmental function that would make the government provider subject to the doctrine of the Reynolds case.15 In any event, since the electric power functions were stipulated to be incidental to the water functions which are the District's primary purpose, they cannot change the character of that enterprise.16 The Arizona Legislature permitted the District to generate and sell electricity to subsidize the water operations which were the beneficiaries intended by the statute.17 A key part of the Salyer decision was that the voting scheme for a public entity like a water district may constitutionally reflect the narrow primary purpose for which the district is created. In this case, the parties have stipulated that the primary legislative purpose of the District is to store, conserve, and deliver water for use by District landowners, that the sole legislative reason for making water projects public entities was to enable them to raise revenue through interest-free bonds, and that the development and sale of electric power was undertaken not for the primary purpose of providing electricity to the public, but "to support the primary irrigation functions by supplying power for reclamation uses and by providing revenues which could be applied to increase the amount and reduce the cost of water to Association subscribed lands."
14
The appellees claim, and the Court of Appeals agreed, that the sheer size of the power operations and the great number of people they affect serve to transform the District into an entity of general governmental power. But no matter how great the number of nonvoting residents buying electricity from the District, the relationship between them and the District's power operations is essentially that between consumers and a business enterprise from which they buy.18 Nothing in the Avery, Hadley, or Salyer cases suggests that the volume of business or the breadth of economic effect of a venture undertaken by a government entity as an incident of its narrow and primary governmental public function can, of its own weight, subject the entity to the one-person, one-vote requirements of the Reynolds case.
15
The functions of the Salt River District are therefore of the narrow, special sort which justifies a departure from the popular-election requirement of the Reynolds case. And as in Salyer, an aspect of that limited purpose is the disproportionate relationship the District's functions bear to the specific class of people whom the system makes eligible to vote. The voting landowners are the only residents of the District whose lands are subject to liens to secure District bonds. Only these landowners are subject to the acreage-based taxing power of the District, and voting landowners are the only residents who have ever committed capital to the District through stock assessments charged by the Association.19 The Salyer opinion did not say that the selected class of voters for a special public entity must be the only parties at all affected by the operations of the entity, or that their entire economic well-being must depend on that entity. Rather, the question was whether the effect of the entity's operations on them was disproportionately greater than the effect on those seeking the vote.20
16
As in the Salyer case, we conclude that the voting scheme for the District is constitutional because it bears a reasonable relationship to its statutory objectives. Here, according to the stipulation of the parties, the subscriptions of land which made the Association and then the District possible might well have never occurred had not the subscribing landowners been assured a special voice in the conduct of the District's business. Therefore, as in Salyer, the State could rationally limit the vote to landowners. Moreover, Arizona could rationally make the weight of their vote dependent upon the number of acres they own, since that number reasonably reflects the relative risks they incurred as landowners and the distribution of the benefits and the burdens of the District's water operations.21
17
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
18
It is so ordered.
19
Justice POWELL, concurring.
20
I concur fully in the Court's opinion, and write separately only to emphasize the importance to my decision of the Arizona Legislature's control over voting requirements for the Salt River District.
21
The Court previously has held that when a governmental entity exercises functions that are removed from the core duties of government and disproportionately affect a particular group of citizens, that group may exercise more immediate control over the management of the entity than their numbers would dictate. Salyer Land Co. v. Tulare Lake Basin Water Storage District, 410 U.S. 719, 93 S.Ct. 1224, 35 L.Ed.2d 659 (1973). See Hadley v. Junior College District, 397 U.S. 50, 56, 90 S.Ct. 791, 795, 25 L.Ed.2d 45 (1970); Avery v. Midland County, 390 U.S. 474, 483-484, 88 S.Ct. 1114, 1119-1120, 20 L.Ed.2d 45 (1968). This rule is consistent with the principle of "one person, one vote" applicable to the elections of bodies that exercise general governmental powers. Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). The Salt River District is a governmental entity only in the limited sense that the State has empowered it to deal with particular problems of resource and service management. The District does not exercise the crucial powers of sovereignty typical of a general purpose unit of government, such as a State, county, or municipality.1
22
Our cases have recognized the necessity of permitting experimentation with political structures to meet the often novel problems confronting local communities. E. g., Holt Civic Club v. Tuscaloosa, 439 U.S. 60, 71-72, 99 S.Ct. 383, 390-391, 58 L.Ed.2d 292 (1978). As this case illustrates, it may be difficult to decide when experimentation and political compromise have resulted in an impermissible delegation of those governmental powers that generally affect all of the people to a body with a selective electorate. But state legislatures, responsive to the interests of all the people, normally are better qualified to make this judgment than federal courts.2 Given the broad reforms effected by Reynolds v. Sims, we should expect that a legislature elected on the rule of one person, one vote will be vigilant to prevent undue concentration of power in the hands of undemocratic bodies. The absence of just such a political safeguard was a major justification for the Court's role in requiring legislative reapportionment. See Baker v. Carr, 369 U.S. 186, 258-259, 82 S.Ct. 691, 732, 7 L.Ed.2d 663 (1962) (Clark, J., concurring).
23
The Court's opinion convincingly demonstrates that the powers exercised by the Salt River District are not powers that always must be exercised by a popularly elected body. Ante, at 366-371. Both storage and delivery of water are functions that in other areas of the Nation are performed by private or administrative bodies. These tasks sometimes are performed by an elected government entity, because of the aridity of the Southwest, federal water policy, and the historical interest of Arizona landowners in irrigation, not because of their inherent character nor an insistent demand that the people as a whole decide how much water each will receive or how much each will pay for electricity.
24
Appellees argue that control of water is of prime importance in the Southwest and that many people purchase electricity from the District. These observations raise the question whether this Court should interfere with the constitution of the District, but do not answer it. The Arizona Legislature recently has demonstrated its control over the electoral processes of the District. It has reformed the District to increase the political voice of the small householder at the expense of the large landowner. Ante, at 359, n. 2. This reform no doubt reflects political and demographic changes in Arizona since the District was established.
25
The authority and will of the Arizona Legislature to control the electoral composition of the District are decisive for me in this case. The District is large enough and the resources it manages are basic enough that the people will act through their elected legislature when further changes in the governance of the District are warranted. We should allow the political process to operate. For this Court to dictate how the Board of the District must be elected would detract from the democratic process we profess to protect.
26
Justice WHITE, with whom Justice BRENNAN, Justice MARSHALL, and Justice BLACKMUN join, dissenting.
27
In concluding that the District's "one-acre, one-vote" scheme is constitutional, the Court misapplies the limited exception recognized in Salyer Land Co. v. Tulare Lake Basin Water Storage District, 410 U.S. 719, 93 S.Ct. 1224, 35 L.Ed.2d 659 (1973), on the strained logic that the provision of water and electricity to several hundred thousand citizens is a "peculiarly narrow function." Because the Court misreads our prior cases and its opinion is conceptually unsound, I dissent.
28
* The right to vote is of special importance because the franchise acts to preserve "other basic civil . . . rights." Reynolds v. Sims, 377 U.S. 533, 562, 84 S.Ct. 1362, 1381, 12 L.Ed.2d 506 (1964). It is presumed that "when all citizens are affected in important ways by a governmental decision," the Fourteenth Amendment "does not permit . . . the exclusion of otherwise qualified citizens from the franchise." Phoenix v. Kolodziejski, 399 U.S. 204, 209, 90 S.Ct. 1990, 1994, 26 L.Ed.2d 523 (1970). Any state statute granting the franchise to residents on a selective basis poses the "danger of denying some citizens any effective voice in the governmental affairs which substantially affect their lives." Kramer v. Union Free School District No. 15, 395 U.S. 621, 627, 89 S.Ct. 1886, 1889, 23 L.Ed.2d 583 (1969).1 See Avery v. Midland County, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968). As a result, any classification restricting the franchise, except those involving residence, age, or citizenship, is unconstitutional "unless the district or State can demonstrate that the classification serves a compelling state interest." Hill v. Stone, 421 U.S. 289, 297, 95 S.Ct. 1637, 1643, 44 L.Ed.2d 172 (1975). See Kramer, supra, at 626-627, 89 S.Ct., at 1889; Phoenix, supra, at 209, 90 S.Ct., at 1994 (giving power to property owners alone "can be justified only by some overriding interest of those owners that the State is entitled to recognize").
29
This fundamental principle has been applied in a variety of contexts to invalidate discriminatory election schemes limiting the franchise, in whole or in part, to property owners. In Kramer, the Court found invidious a system for local school district elections which limited eligibility to those who either (1) owned or leased taxable realty in the locality; or (2) were parents or custodians of children enrolled in the local public schools. In Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969), a case with particular relevance to the present action, the Court invalidated a state law which limited participation in a bond election for the support of a municipal utility system to property holders. The revenue bonds, secured by funds generated by the utility system itself, did not create any enforceable lien against any property in the city. Id., at 705, 89 S.Ct., at 1900. Noting that the impact fell on property and nonproperty owners alike since all persons "use the utilities and pay the rates," the Court rejected the voting classification scheme disenfranchising nonproperty owners. Nor may the vote be limited to property owners in bond issuance elections with respect to general obligation bonds secured by property tax revenues. Phoenix, supra, at 209-213, 90 S.Ct., at 1994-1996. See also Police Jury of Parish of Vermilion v. Hebert, 404 U.S. 807, 92 S.Ct. 52, 30 L.Ed.2d 39 (1971), summarily rev'g 258 La. 41, 245 So.2d 349 (cannot limit vote for road improvement bonds to property holders). The Court has thus rejected the view that simply because property is directly burdened because of some governmental action, that fact alone justifies limiting the franchise to property owners where nonowners are also substantially affected. Hill, supra, at 299, 95 S.Ct., at 1644.
30
To be sure, the Court approved limiting the vote to landowners in electing the board of directors of a Water Storage District in Salyer Land Co. v. Tulare Lake Basin Water Storage District.2 See Associated Enterprises, Inc. v. Toltec Watershed Improvement District, 410 U.S. 743, 93 S.Ct. 1237, 35 L.Ed.2d 675 (1973). But nothing in Salyer changed the relevant constitutional inquiry. Rather, the Court held the Reynolds-Avery-Kramer line of cases inapplicable to the water district because of its "special limited purpose and the disproportionate effect of its activities on landowners as a group. . . ." 410 U.S., at 728, 93 S.Ct., at 1229 (emphasis supplied). Although the water district there involved exercised certain governmental authorities, its purposes were quite narrow. The Water Storage District was also found to have only an insubstantial effect on nonvoters. Only 77 persons lived within its boundaries and most worked for one of the four corporations which owned 85% of the land within the District. On the other hand, the burdens of the District fell entirely on landowners since all of the costs associated with the District's projects were assessed against landowners in proportion to the benefits received. There was "no way that the economic burdens of district operations can fall on residents qua residents. . . ." Id., at 729, 93 S.Ct., at 1230.
31
An analysis of the two relevant factors required by Salyer demonstrates that the Salt River District possesses significant governmental authority and has a sufficiently wide effect on nonvoters to require application of the strict scrutiny mandated by Kramer.
II
32
The District involved here clearly exercises substantial governmental powers. The District is a municipal corporation organized under the laws of Arizona and is not, in any sense of the word, a private corporation. Pursuant to the Arizona Constitution, such districts are "political subdivisions of the State, and vested with all the rights, privileges and benefits, and entitled to the immunities and exemptions granted municipalities and political subdivisions under this Constitution or any law of the State or of the United States." Ariz.Const., Art. 13, § 7. Under the relevant statute controlling agricultural improvement districts, the District is "a public, political, taxing subdivision of the state, and a municipal corporation to the extent of the powers and privileges conferred by this chapter or granted generally to municipal corporations by the constitution and statutes of the state, including immunity of its property and bonds from taxation." Ariz.Rev.Stat.Ann. § 45-902 (1956).3 The District's bonds are tax exempt, and its property is not subject to state or local property taxation. This attribute clearly indicates the governmental nature of the District's function. The District also has the power of eminent domain, a matter of some import. The District has also been given the power to enter into a wide range of contractual arrangements to secure energy sources.4 Inherent in this authorization is the power to control the use and source of energy generated by the District, including the possible use of nuclear power. Obviously, this broad authorization over the field of energy transcends the limited functions of the agricultural water storage district involved in Salyer.
33
The District here also has authority to allocate water within its service area. It has veto power over all transfers of surface water from one place or type of use to another, and this power extends to any "watershed or drainage area which supplies or contributes water for the irrigation of lands within [the] district. . . ." Ariz.Rev.Stat.Ann. § 45-172.5 (Supp.1980-1981).
34
Like most "private" utilities, which are often "natural monopolies," see Otter Tail Power Co. v. United States, 410 U.S. 366, 93 S.Ct. 1022, 35 L.Ed.2d 359 (1973), private utilities in Arizona are subject to regulation by public authority. The Arizona Corporation Commission is empowered to prescribe "just and reasonable rates" as well as to regulate other aspects of the business operations of private utilities. See Ariz.Rev.Stat.Ann. § 40-321 (1974). The rate structure of the District now before us, however, is not subject to control by another state agency because the District is a municipal corporation and itself purports to perform the public function of protecting the public interest that the Corporation Commission would otherwise perform. See Ariz.Const., Art. 13, § 7, Art. 15, § 2. See also Rubenstein Construction Co. v. Salt River Project Agricultural Improvement & Power Dist., 76 Ariz. 402, 265 P.2d 455 (1953) (Salt River Project is not a public service corporation and therefore statute forbidding certain business practices did not apply). Its power to set its own rates and other conditions of service constitutes important attributes of sovereignty. When combined with a consideration of the District's wide-ranging operations which encompass water for agricultural and personal uses, and electrical generation for the needs of hundreds of thousands of customers, it is clear that the District exercises broad governmental power. With respect to energy management and the provision of water and electricity, the District's power is immense and its authority complete.
35
It is not relevant that the District does not do more—what is detailed above is substantially more than that involved in the Water Storage District in Salyer, and certainly enough to trigger application of the strict standard of the Fourteenth Amendment under our prior cases. Previous cases have expressly upheld application of the strict requirements of the Fourteenth Amendment in situations where somewhat limited functions were involved. Salyer itself suggested that it would be a different case if a water district like the one involved in that case generated and sold electricity. In concluding that the Tulare District did not exercise normal governmental authority, the Court specifically noted that the District provided "no other general public services such as schools, housing, transportation, utilities, roads, or anything else of the type ordinarily financed by a municipal body." 410 U.S., at 728-729, 93 S.Ct., at 1230 (emphasis supplied). In Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969), we held that a bond election which concerned only a city's provision of utilities involved a sufficiently broad governmental function. In Kramer, the Court noted that the "need for close judicial examination" did not change "because the district meetings and the school board do not have 'general' legislative powers. Our exacting examination is not necessitated by the subject of the election; rather, it is required because some resident citizens are permitted to participate and some are not." 395 U.S., at 629, 89 S.Ct., at 1890. In Hadley v. Junior College District, 397 U.S. 50, 90 S.Ct. 791, 25 L.Ed.2d 45 (1970), the Court applied Kramer despite the fact that the powers exercised by the trustees of a Junior College District were substantially less significant than those exercised in Avery v. Midland County, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968). It was sufficient that the trustees performed important governmental functions with sufficient impact throughout the District.
36
I therefore cannot agree that this line of cases is not applicable here. The authority and power of the District are sufficient to require application of the strict scrutiny required by our cases. This is not a single-purpose water irrigation district, but a large and vital municipal corporation exercising a broad range of initiatives across a spectrum of operations. Moreover, by the nature of the state law, it is presently exercising that authority without direct regulation by state authorities charged with supervising privately owned corporations involved in the same business. The functions and purposes of the Salt River District represent important governmental responsibilities that distinguish this case from Salyer.
III
37
In terms of the relative impact of the Salt River District's operations on the favored landowner voters and those who may not vote for the officers of this municipal corporation, the contrast with the Water District in Salyer is even more pronounced. A bird's-eye view of the District's operations will be helpful. Historically, the Salt River District was concerned only with storing water and delivering it for agricultural uses within the District. This was a crucial service, but it proved too expensive for a wholly private concern to maintain. It needed public help, which it received. It became a municipal corporation, a transformation which rendered its bonds and property tax exempt. It also needed a public subsidy, which was provided by authorizing it to engage in the generation and sale of electricity. It was also authorized to supply water for municipal and other nonagricultural uses.
38
The area within the District, once primarily rural, now encompasses eight municipalities and a major part of the city of Phoenix. Its original purpose, the supply of irrigation water, now provides only a tiny fraction of its gross income. For the fiscal year ending April 30, 1980, the District had a total operating income of approximately $450 million, 98% of which was derived from the generation of electricity and its sale to approximately 240,000 consumers. See Salt River Project, 1979-1980 Annual Report, p. 25. The District is now the second largest utility in Arizona. Furthermore, as of April 30, 1980, the District had outstanding long-term debt of slightly over $2 billion. Approximately $1.78 billion, or about 88%, of that debt are in the form of revenue bonds secured solely by the revenues from the District's electrical operations. All of the District's capital improvements since 1972 have been financed by revenue bonds, and the general obligation bonds, now representing a small fraction of the District's long-term debt, are being steadily retired from the District's general revenues. It must also be noted that at the present time, 40% of the water delivered by the District is used for nonagricultural purposes—25% for municipal purposes and 15% to schools, playgrounds, parks, and the like.
39
With these facts in mind, it is indeed curious that the Court would attempt to characterize the District's electrical operations as "incidental" to its water operations, or would consider the power operations to be irrelevant to the legality of the voting scheme.5 The facts are that in Salyer the burdens of the Water District fell entirely on the landowners who were served by the District. Here the landowners could not themselves afford to finance their own project and turned to a public agency to help them. That agency now subsidizes the storage and delivery of irrigation water for agricultural purposes by selling electricity to the public at prices that neither the voters nor any representative public agency has any right to control. Unlike the situation in Salyer, the financial burden of supplying irrigation water has been shifted from the landowners to the consumers of electricity.6 At the very least, the structure of the District's indebtedness together with the history of the District's operations compels a finding that the burdens placed upon the lands within the District are so minimal that they cannot possibly serve as a basis for limiting the franchise to property owners.
40
Like the Court of Appeals, I cannot help but conclude as follows:
41
"[T]he operation of the utility has taken on independent significance. In view of the magnitude of the electric utility operations and the large percentage of the water services which are used and paid for in a manner unrelated to land ownership, it would elevate form over substance to characterize the District as functioning solely for the benefit of the landowners." 613 F.2d, at 184.
42
In Cipriano, the only item at issue was an election concerning bonds to be used solely for the improvement of the municipally owned utility system. Of substantial importance to the resolution of this case, the Court said:
43
"Of course, the operation of the utility systems—gas, water, and electricity—affects virtually every resident of the city, nonproperty owners as well as property owners. All users pay utility bills, and the rates may be affected substantially by the amount of revenue bonds outstanding. Certainly property owners are not alone in feeling the impact of bad utility service or high rates, or in reaping the benefits of good service and low rates." 395 U.S., at 705, 89 S.Ct., at 1900.7
44
It is apparent in this case that landowning irrigators are getting a free ride at the expense of the users of electricity. It would also seem apparent that except for the subsidy, utility rates would be lower. Of course, subsidizing agricultural operations may well be in the public interest in Arizona, but it does not follow that the amount of the subsidy and the manner in which it is provided should be totally in the hands of a select few.8
45
To conclude that the effect of the District's operations in this case is substantially akin to that in Salyer ignores reality. As recognized in Salyer, there were "no towns, shops, hospitals, or other facilities designed to improve the quality of life within the district boundaries, and it does not have a fire department, police, buses, or trains." 410 U.S., at 729, 93 S.Ct., at 1230. In short, there was nothing in the Water Storage District for its operations to affect except the land itself. The relationship between the burdens of the District and the land within the District's boundaries was strong. Here, the District encompasses one of the major metropolitan areas in the country. The effects of the provision of water and electricity on the citizens of the city are as major as they are obvious. There is no strong relationship between the District's operation and the land qua land. The District's revenues and bonds are tied directly to the electrical operation. Any encumbrance on the land is at best speculative. Certainly, any direct impact on the land is no greater than in Phoenix v. Kolodziejski, 399 U.S. 204, 90 S.Ct. 1990, 26 L.Ed.2d 523 (1970), where we rejected the same argument presented today. Simply put, the District is an integral governmental actor providing important governmental services to residents of the District. To conclude otherwise is to ignore the urban reality of the District's operations.9
IV
46
Underlying the Court's conclusion in this case is the view that the provision of electricity and water is essentially a private enterprise and not sufficiently governmental—that the District "simply does not exercise the sort of governmental powers that invoke the strict demands" of the Fourteenth Amendment because it does not administer "such normal functions of government as the maintenance of streets, the operation of schools, or sanitation, health, or welfare services." Ante, at 366. This is a distinctly odd view of the reach of municipal services in this day and age. Supplying water for domestic and industrial uses is almost everywhere the responsibility of local government, and this function is intimately connected with sanitation and health. Nor is it any more accurate to consider the supplying of electricity as essentially a private function. The United States Government and its agencies generate and sell substantial amounts of power; and in view of the widespread existence of municipal utility systems, it is facetious to suggest that the operation of such utility systems should be considered as an incidental aspect of municipal government. Nor will it do, it seems to me, to return to the proprietary-governmental dichotomy in order to deliver into wholly private hands the control of a major municipal activity which acts to subsidize a limited number of landowners.10
47
In Indian Towing Co. v. United States, 350 U.S. 61, 67-68, 76 S.Ct. 122, 125-126, 100 L.Ed. 48 (1955), the Court remarked:
48
" 'Government is not partly public or partly private, depending upon the governmental pedigree of the type of a particular activity or the manner in which the Government conducts it.' Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380, 383-384, 68 S.Ct. 1, 2-3, 92 L.Ed. 10. On the other hand, it is hard to think of any governmental activity on the 'operational level,' our present concern, which is 'uniquely governmental,' in the sense that its kind has not at one time or another been, or could not conceivably be, privately performed."
49
In Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 98 S.Ct. 1123, 55 L.Ed.2d 364 (1978), Justice STEWART, after quoting the above passage from Indian Towing Co., described the distinction between "proprietary" and "governmental" activities as a "quagmire" involving a distinction " 'so finespun and capricious as to be almost incapable of being held in the mind for adequate formulation.' " Id., at 433, 98 S.Ct., at 1147 (dissenting opinion) (quoting Indian Towing Co., supra, at 68, 76 S.Ct., at 126). Justice STEWART went on to conclude that whether proprietary or not, the action of providing electrical utility services "is surely an act of government." 435 U.S., at 434, 98 S.Ct., at 1147.
50
In Salyer, the Court nowhere suggested that the provision of water for agricultural purposes was anything but governmental action for a public purpose. The Court expressly recognized that the Water District was a public entity. The question presented, in part, was whether its operations and authority were so narrow as not to require application of the Kramer rule. In Cipriano, the Court necessarily held that the provision of electrical, water, and gas utility services was a sufficiently important governmental service to require application of the Fourteenth Amendment's strict scrutiny safeguards. 395 U.S., at 705, 89 S.Ct., at 1900. If the provision of electrical and other utility services by a municipal corporation was so "proprietary" or "private" as not to require application of the stricter standards of the Fourteenth Amendment, Cipriano could not have been decided as it was. The Court's facile characterization of the electrical service provided by the municipal corporation in this case as essentially a private function is a misreading of our prior holdings.
V
51
The purpose and authority of the Salt River District are of extreme public importance. The District affects the daily lives of thousands of citizens who because of the present voting scheme and the powers vested in the District by the State are unable to participate in any meaningful way in the conduct of the District's operations.11 In my view, the Court of Appeals properly reasoned that the limited exception recognized in Salyer does not save this voting arrangement. I cannot agree with the Court's extension of Salyer to the facts of the case, and its unwise suggestion that the provision of electrical and water services are somehow too private to warrant the Fourteenth Amendment's safeguards. Accordingly, I dissent.
1
The review in this opinion of the history, organization, functions, and financing of the District is drawn from the stipulation of facts in the District Court.
2
In recent years, the method of electing the Board of Directors has departed somewhat from the strict one-acre, one-vote system originally used by the Association and the District. In 1969 the state legislature amended the Agricultural Improvement Act to permit owners of less than one acre to cast fractional votes in proportion to their acreage. Ariz.Rev.Stat.Ann. § 45-983 C (Supp.1980-1981). A second change had to do with the membership of the Board of Directors itself. Before 1976, there were 10 directors, each elected from a designated geographical part of the District. In 1976, after the District Court had dismissed the complaint in this case, the state legislature enlarged the Board to 14 members and provided that the 4 new members were to be elected at large, with each landowner in the District having one vote in the at-large election. Ariz.Rev.Stat.Ann. §§ 45-961 B, 45-963 (Supp.1980-1981). Each special water district also has a President and Vice President, elected at large on an acreage-weighted basis. § 45-963.
3
In holding that the one-person, one-vote principle of Reynolds applies to the Salt River District, the Court of Appeals stressed the scope of the District's power operations and the diversity of its water operations, and rejected the appellees' argument that the power operations are essentially business activities incidental to the District's narrow primary purpose of storing and delivering water: "[T]he scale of the District's operations simply does not permit the interpretation that the electric utility is a side venture that the District dabbles in to pick up a little extra money in order to benefit the landowners. The operation of the utility has taken on independent significance. . . . The electric utility operations of the District are so substantial in scope and are so closely interwoven with the water delivery functions of the District that it is not a special limited purpose district whose operations have a disproportionate effect on landowners as a class." 613 F.2d, at 184-185.
4
Among the duties of the County Commissioners Court in Avery were establishing courthouses and jails, appointing health officials, building roads and bridges, administering welfare, setting the county tax rate, adopting the county budget, and equalizing tax assessments. 390 U.S., at 476, 88 S.Ct., at 1115.
5
"[T]he Constitution does not require that a uniform straitjacket bind citizens in devising mechanisms of local government suitable for local needs and efficient in solving local problems." Id., at 485, 88 S.Ct., at 1120.
6
The Court held that the Junior College District in Hadley did not fall within this exception because "[e]ducation has traditionally been a vital governmental function, and these . . . are governmental officials in every relevant sense of that term." 397 U.S., at 56, 90 S.Ct., at 795.
7
On the same day it decided Salyer, the Court upheld a similar scheme in Wyoming, under which the voters in a referendum on the creation of a water district had to be landowners, and in which the decision to create the district required the votes of landowners representing a majority of the acreage of the lands within the proposed district. Associated Enterprises, Inc. v. Toltec Watershed Improvement Dist., 410 U.S. 743, 93 S.Ct. 1237, 35 L.Ed.2d 675 (per curiam ).
8
In Kramer v. Union Free School District No. 15, 395 U.S. 621, 627, 89 S.Ct. 1886, 1889, 23 L.Ed.2d 583, the Court stated that the exclusion of otherwise qualified voters from a particular election must be justified by some compelling state interest. But in considering whether the voting scheme for the Tulare Lake Basin Water Storage District bore some relevancy to the purpose for which the scheme was adopted, Salyer imposed no such requirement.
9
Approximately 15% of the water delivered by the District is used in farming areas for nonagricultural irrigation purposes such as schools, playgrounds, and parks. Another 25% is delivered to municipalities. Of the latter, some belongs to the municipalities themselves and landowners, and some belongs to landowning city residents who have chosen the cities as their receiving agents.
10
As the Court of Appeals noted, the District has $290 million of general obligation bonds outstanding that are secured by the statutory lien on District lands, but the bonds have been serviced entirely out of the District's power earnings, and since 1973 all borrowing for capital improvements has been secured by pledges of revenues. The District now has outstanding $600 million of these revenue bonds, which are junior to the general obligation bonds. The voting landowners have also committed some capital to the Salt River Project, through stock assessments charged by the Association, but the Association last exercised its assessment power in 1951.
11
In Salyer, we recognized that the powers to contract for and staff projects, to condemn property, and to issue bonds do not amount to such general governmental authority. 410 U.S., at 728, n. 8, 93 S.Ct., at 1230, n. 8. And as recognized by the dissenting opinion in the companion case to Salyer, the power to levy and collect special assessments also does not create such general governmental authority. Associated Enterprises, Inc. v. Toltec Watershed Improvement Dist., supra, at 749, 93 S.Ct., at 1240 (Douglas, J.).
In other cases, the Court has found invalid state laws tying voting eligibility to property ownership in elections to approve issuance of bonds to finance a city library, Hill v. Stone, 421 U.S. 289, 95 S.Ct. 1637, 44 L.Ed.2d 172, and a municipal utility, Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (per curiam ), and to issue general obligation bonds secured by a lien on real property, Phoenix v. Kolodziejski, 399 U.S. 204, 90 S.Ct. 1990, 26 L.Ed.2d 523. In those cases, however, the elections concerned the operations of traditional municipalities exercising the full range of normal governmental powers, and so the cases do not bear on the question of a special-purpose governmental entity like the Salt River District. See Salyer Land Co. v. Tulare Lake Basin Water Storage District, 410 U.S., at 727, 93 S.Ct., at 1229.
12
The appellees have alleged that the District's power over flood control affects all residents within District boundaries and therefore represents the sort of important governmental function that invokes the Reynolds one-person, one-vote doctrine. However, as we held in Salyer, where such a power over flood control is incidental to a District's primary water functions, it is not of decisive constitutional significance. 410 U.S., at 728, n. 8, 93 S.Ct., at 1230, n. 8. Indeed, in both the Salyer and Associated Enterprises, Inc., cases, control of erosion and flooding was one of the express statutory purposes of the water districts; the Salt River District has no such express statutory power, and so any influence it exerts over flood control is simply an effect of the exercise of its more limited statutory water functions.
13
The Court of Appeals slightly misconstrued the facts in stating that a significant portion of water delivered by the District "is used and paid for in a manner unrelated to agriculture or land ownership." 613 F.2d, at 184 (emphasis added). Though some landowning city residents have designated their cities as contracting agents to receive their water allotments, see n. 9, supra, the stipulated facts show that all entitlement to water in the District derives from land ownership, whether rights to surface water appurtenant to land or acreage-based entitlements to stored water.
14
Significantly, though the District's nominal status as a governmental body technically exempts it from state taxes, it makes ad valorem contributions to the state treasury according to the same formula by which the State's private utilities pay property taxes. Ariz.Rev.Stat.Ann. § 45-2201 et seq. (Supp.1980-1981).
15
The Tulare Lake Basin Water Storage District in Salyer had the statutory power to generate and sell electricity at any time and in any manner, 410 U.S., at 724, 93 S.Ct., at 1227, but that fact did not alter the Court's view that the district's purpose was too narrow to invoke the Reynolds principle.
16
The stipulated facts show that, measured as a percentage of gross-power revenues, the amount of District revenues used to support the water operations is roughly equal to the sum of the dividends paid to common stockholders in a comparable private electric utility.
17
As stated by the Arizona Supreme Court:
"Most municipal corporations are owned by the public and managed by public officials. . . . Such is not the case here. . . . The public does not own the District. The governmental entity such as a city or town does not manage or benefit from the profits of this District. Instead, the owners are private landholders. The profits from the sale of electricity are used to defray the expense in irrigating these private lands for personal profit. The public interest is merely that of consumers of its product, for which they pay. . . . The District does not function to 'serve the whole people' but rather the District operates for the benefit of these 'inhabitants of the district' who are private owners." Local 266, I. B. E. W. v. Salt River Agricultural Improvement and Power Dist., 78 Ariz. 30, 44, 275 P.2d 393, 402-403.
18
Indeed, this consumer-business relationship is somewhat obscured by the appellees' claim of standing. The stipulated facts show that the District delivers 15% of its electric power to customers outside the District boundaries, and that 15% of lands within the District receive electricity from a private utility, rather than the District. Thus, if the appellees' claim of a constitutional right to vote for directors of the District rests on their relationship to the power functions of the District, they represent the wrong class of putative voters.
19
The Court of Appeals found it significant that 98% of the District's revenues come from sales of electricity, and only 2% from charges assessed for water deliveries. 613 F.2d, at 184. This fact in no way affects the constitutionality of the voting scheme. When the consumers of electricity supply those power revenues, they are simply buying electricity; they are neither committing capital to the District nor committing any of their property as security for the credit of the District.
20
The appellees, of course, are qualified voters in Arizona and so remain equal participants in the election of the state legislators who created and have the power to change the District.
21
It in no way upsets the rationality of this scheme that the 40% of District acreage owned by corporations and municipalities is not voted at all. The lands owned by the corporations and cities are exclusively streets, alleys, canal rights of way, and the bed of the Salt River. Moreover, those lands are not subject to the District's acreage-based taxing power. Finally, it can hardly be said that the legislature acted irrationally in limiting voting eligibility to landowners who were otherwise qualified electors under state law.
1
The Court has held that school boards must be elected on a strictly majoritarian basis. Hadley v. Junior College District, 397 U.S. 50, 90 S.Ct. 791, 25 L.Ed.2d 45 (1970); Kramer v. Union Free School District No. 15, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969). These cases reflect the Court's judgment as to the unique importance of education among the functions of modern local government. See Brown v. Board of Education, 347 U.S. 483, 493, 74 S.Ct. 686, 691, 98 L.Ed. 873 (1954). Cf. Holt Civic Club v. Tuscaloosa, 439 U.S. 60, 99 S.Ct. 383, 55 L.Ed.2d 292 (1978) (nonresidents may be subject to "police jurisdiction" of neighboring city without being constitutionally entitled to vote in the city).
2
The Court deprecated the significance of control of voting requirements for a special-purpose election by a fairly elected legislature in Kramer, supra, at 628, 89 S.Ct., at 1890. See also Avery v. Midland County, 390 U.S. 474, 481, n. 6, 88 S.Ct. 1114, 1118, n. 6, 20 L.Ed.2d 45 (1968). The holding in Kramer is affected neither by Salyer nor by the decision of the Court today, see n. 1, supra, but it must be evident that some of the reasoning in that case has been questioned. See, e. g., ante, at 364-365, n. 8.
1
States, of course, have substantial latitude in structuring local government, and nonlegislative positions need not be elected at all. Kramer v. Union Free School District No. 15, 395 U.S., at 629, 89 S.Ct., at 1890. But once a State provides for elections, the Fourteenth Amendment requires that any discriminations be scrutinized under the principles enunciated in Kramer and its progeny.
2
The possibility of departing from the one-person, one-vote logic of Reynolds in the case of special-purpose districts was suggested in Avery v. Midland County, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968). But the Court left open the question whether a special-purpose unit of government assigned the performance of functions affecting definable groups of constituents more than other constituents "may be apportioned in ways which give greater influence to the citizens most affected by the organization's functions." Id., at 483-484, 88 S.Ct., at 1119-1120. Thus, even assuming that the landowners are more directly affected, Avery suggests that there may be situations where total exclusion is unconstitutional, but where the exact one-person, one-vote rule does not apply. The Court's decision today ignores the possibility of some alternative plan and instead sanctions an unjustifiable total exclusion.
3
Arizona state-court decisions have described such agricultural improvement districts as primarily business-oriented. See ante, at 368. See also Local 266, International Brotherhood of Electrical Workers v. Salt River Project Agricultural Improvement & Power Dist., 78 Ariz. 30, 275 P.2d 393 (1954); Mesa v. Salt River Project Agricultural Improvement & Power Dist., 92 Ariz. 91, 373 P.2d 722 (1962), appeal dism'd, 372 U.S. 704, 83 S.Ct. 1018, 10 L.Ed.2d 124 (1963). Of course, these state court descriptions do not control the question whether the municipal corporation possesses sufficient authority or function to require application of the voting procedures mandated by the Fourteenth Amendment. That inquiry is a constitutional question to be resolved by the courts.
4
Arizona Rev.Stat.Ann. § 45-935 B (Supp.1980-1981) provides:
"For the purpose of acquiring or assuring a supply of electric power and energy to serve the district's customers, the board, for the and in the name of the district may, without the boundaries of the state, acquire, develop, own, lease, purchase, construct, operate, equip, maintain, repair and replace, and contract for . . . any form of energy or energy resources including but not limited to coal, oil, gas, oil shale, uranium and other nuclear materials, hot water, steam, and other geothermal materials or minerals, solar energy, wind, water, and water power and compressed air . . .."
5
The parties did not stipulate that the electrical services were unimportant or legally insignificant. In the context of the historical development of the District's power and authority, it was stipulated that the electrical generating function was "incident" to the primary purpose of providing water to District members. Stipulated Statement of Facts, Nos. 12, 17. This historical view, however, in no way undercuts the present inquiry. Even acknowledging that water service remains the "primary" function of the District in some legal sense, the relevant question here is whether the other services are of such a nature to require application of the strict standards of the Fourteenth Amendment. The fact that the generation of electricity is an incident of the water function of the District is not the same as concluding that the provision of electricity is "incidental" in the sense that it is insignificant. Indeed the parties also stipulated that the "District provides a reliable supply of essential electric energy and water in substantial portions of the Salt River Valley; thus, the District operation is important to the development of the Salt River Valley." Id., No. 46.
6
The extent of the subsidy is substantial. The parties stipulated that:
"During the last ten years about 83% of the water system costs have been financed with power revenues. In 1974, revenues from water and irrigation activities were $2,613,184. The expenses, including depreciation, for irrigation and water operations exceeded revenues by about $14,000,000, and that deficit was met from power revenues. Water support has averaged approximately $10,000,000 annually since 1965. These amounts do not include expenditures for additions and improvements to the irrigation plant and for repayment of long-term debt, which must also be met from power revenues. Any decrease in support from power revenues would have to be met from increased water delivery charges." Id., No. 45.
7
The Salt River District authorities thought the issue in Cipriano to be so substantially akin to the issue with respect to its operations that it decided to file an amicus brief in that case. See Brief for the Salt River Project Agricultural Improvement and Power District as Amicus Curiae, O.T.1968, No. 705. The District argued that the bonds at issue in Cipriano went only to the city's conduct of its utility function and thus affected "only a particular segment of those general governmental powers," id., at 5, so that Kramer should not be applied. We necessarily rejected the District's arguments on the merits in Cipriano.
8
It may well be that if given a chance to participate, nonproperty owners will seek to lessen the subsidy. But this is no excuse for denying them the vote. A State is constitutionally prohibited from disenfranchising any "sector of the population because of the way they may vote. . . ." Carrington v. Rash, 380 U.S. 89, 94, 85 S.Ct. 775, 779, 13 L.Ed.2d 675 (1965).
9
Nothing in Cipriano turned on the fact that the city's utility activities were connected with its broader grants of police power and were not conducted by a separately elected board or commission. While the Court noted that any profits from the utility operations would go into the city's general fund, this fact did not contribute to the Court's decision to extend the franchise. Rather, the Court noted that property and nonproperty taxpayers may have different views concerning provision of city funds for utilities, and that it was this concern with the utility services which required application of Kramer.
It is also significant that the Court's decision today is inconsistent with the narrow, and correct, reading given Salyer in various other courts in circumstances akin to those in the present case. See, e. g., Choudhry v. Free, 17 Cal.3d 660, 131 Cal.Rptr. 654, 552 P.2d 438 (1976); Johnson v. Lewiston Orchards Irrigation Dist., 99 Idaho 501, 584 P.2d 646 (1978).
10
In this regard, the Court's citation of Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974), is totally misplaced. In that case, the Court held that actions of a privately owned utility do not constitute state action for purposes of the Fourteenth Amendment. The Court noted that the provision of utility services is "not traditionally the exclusive prerogative of the State." Id., at 353, 95 S.Ct., at 454. But this observation necessarily implies that the provision of utilities if actually provided by the State is a valid government activity. Thus, the question whether the Fourteenth Amendment may require certain safeguards if the State in fact does itself provide utility services is in no way reached by Jackson. See id., at 354, n. 9, 95 S.Ct., at 455, n. 9 (States may not segregate public schools so as to exclude any religious group while private religious schools may so exclude). Once a State provides such services, constitutional safeguards necessarily apply.
11
It is suggested by the Court in a footnote, see ante, at 371, n. 20, and by Justice POWELL in his concurring opinion that since the nonvoters living in the District may, of course, vote in the state legislature elections, their interests are sufficiently represented since the state legislature maintains ultimate control over the operation and authority of the District. This suggestion lacks merit and has been specifically rejected in past decisions of this Court. Avery v. Midland County, 390 U.S., at 481, 88 S.Ct., at 1118. See Kramer, 395 U.S., at 628, n. 10, 89 S.Ct., at 1890, n. 10. In most situations involving a state agency or even a city, the state legislature and ultimately the people could exercise control since any municipal corporation is a creature of the State. The Fourteenth Amendment requires a far more direct sense of democratic participation in elective schemes which is not satisfied by the indirect and imprecise voter control suggested by the Court and by Justice POWELL. Cf. Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 406, 98 S.Ct. 1123, 1133, 55 L.Ed.2d 364 (1978) (rejecting argument that Sherman Act should not apply to municipally owned utility because dissatisfied consumers had recourse in state legislature).
| 12
|
451 U.S. 401
101 S.Ct. 1836
68 L.Ed.2d 248
COMPLETE AUTO TRANSIT, INC., et al., Petitioners,v.Danny REIS et al.
No. 79-1777.
Argued Feb. 24, 1981.
Decided May 4, 1981.
Syllabus
Petitioner trucking companies are parties to a collective-bargaining agreement with the Teamsters Union that contains a no-strike clause. Respondent employees of petitioners commenced a wildcat strike because they believed the union was not properly representing them in negotiations to amend the collective-bargaining agreement. Thereafter, petitioners brought an action against respondents in Federal District Court under § 301(a) of the Labor Management Relations Act, which confers jurisdiction on federal district courts to decide suits alleging violations of collective-bargaining agreements. Petitioners sought, inter alia, damages against respondents in their individual capacities for all losses arising out of the wildcat strike. The District Court dismissed the damages claim, and the Court of Appeals affirmed, holding that Congress had not intended through § 301 to create a cause of action for damages against individual union members for breach of a no-strike agreement.
Held : Section 301(a) does not sanction damages actions by employers against individual employees for violating the no-strike provision of a collective-bargaining agreement, whether or not the union participated in or authorized the strike. The legislative history of § 301 clearly reveals Congress' intent to shield individual employees from liability for such damages, even though this results in leaving the employer unable to recover for his losses. While § 301(b), which provides that any money judgment against a union for violation of a collective-bargaining agreement shall be enforceable only against the union and not against any individual member, explicitly addresses only union-authorized violations, the "penumbra" of § 301(b), as informed by its legislative history, establishes that Congress meant to exclude individual strikers from damages liability, whether or not they were authorized by their union to strike. The history demonstrates that Congress deliberately chose to allow a damages remedy for breach of a no-strike provision only against unions, not individuals, and, as to unions, only when they participated in or authorized the illegal strike. Pp. 405-417. 6th Cir., 614 F.2d 1110, affirmed.
R. Ian Hunter, Bloomfield Hills, Mich., for petitioners.
Hiram S. Grossman, Flint, Mich., for respondents.
Justice BRENNAN delivered the opinion of the Court.
1
In Atkinson v. Sinclair Refining Co., 370 U.S. 238, 82 S.Ct. 1318, 8 L.Ed.2d 462 (1962), the Court held that § 301(a) of the Labor Management Relations Act, 1947, 61 Stat. 156, 29 U.S.C. § 185(a), does not authorize a damages action against individual union officers and members when their union is liable for violating a no-strike clause in a collective-bargaining agreement. We expressly reserved the question whether an employer might maintain a suit for damages against "individual defendants acting not in behalf of the union but in their personal and nonunion capacity" where their "unauthorized, individual action" violated the no-strike provision of the collective-bargaining agreement. 370 U.S., at 249, n. 7, 82 S.Ct., at 1325, n. 7. We granted certiorari to decide this important question of federal labor law. 449 U.S. 898, 101 S.Ct. 265, 66 L.Ed.2d 127 (1980).
2
* Petitioners are three companies engaged in the transportation by truck of motor vehicles. All three are parties to a collective-bargaining agreement with the Teamsters Union that covers operations at their respective facilities in Flint, Mich. Respondents are employees of petitioners and members of Teamsters Local Union No. 332. The collective-bargaining agreement contains a no-strike clause1 and subjects all disputes to a binding grievance and arbitration procedure.
3
On June 8, 1976, respondents commenced a wildcat strike, because they believed that "the union was not properly representing them in . . . negotiations for amendments to the collective bargaining agreement." 614 F.2d 1110, 1111 (C.A. 6 1980). Soon thereafter, petitioners brought this § 301(a) action in the United States District Court for the Eastern District of Michigan, seeking injunctive relief and "damages against the [employees], in their individual capacity, for all losses arising out of the unlawful work stoppage and for attorneys fees." App. 21. Petitioners alleged that the strike was neither authorized nor approved by the union and, therefore, sought no damages from the union. See 614 F.2d, at 1115; App. 18, 20-21. After a hearing, the District Court found that "the issue which had caused the work stoppage was not arbitrable" because it was "an internal dispute between factions in the Local," App. to Pet. for Cert. 15a-16a, and accordingly denied preliminary injunctive relief, citing Boys Markets, Inc. v. Retail Clerks, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970).2 Following additional hearings and settlement of the "internal dispute," the District Court concluded that "the work stoppage continued only because of a dispute between the Local and [petitioners] over amnesty for the strikers [and that] this issue was arbitrable." App. to Pet. for Cert. 16a. The court, therefore, issued a preliminary injunction, enjoining continuation of the strike. Respondents obeyed the order and returned to work on June 21, 1976.
4
Nine months later, respondents moved to dissolve the preliminary injunction and to dismiss the complaint for damages. Relying on this Court's intervening decision in Buffalo Forge Co. v. Steelworkers, 428 U.S. 397, 96 S.Ct. 3141, 49 L.Ed.2d 1022 (1976),3 the District Court dissolved the injunction on the ground that the work stoppage was not precipitated by an arbitrable issue. App. to Pet. for Cert. 18a. The court also dismissed petitioners' claim for damages, holding that "an employer may not sue his employees for monetary relief for breach of the collective bargaining agreement . . . whether or not the union may also be liable." Id., at 16a.
5
The United States Court of Appeals for the Sixth Circuit reversed the District Court's dissolution of the injunction, holding that an injunction may be granted even where the issue which precipitated the strike was nonarbitrable provided an arbitrable issue, other than the simple legality of the strike itself, caused the continuation of the strike with the purpose of "compel[ling] the employer to concede on the arbitrable issue." 614 F.2d, at 1114. Petitioners do not seek review of this part of the Court of Appeals' ruling.4
6
The Court of Appeals affirmed the District Court's dismissal of petitioners' claim for damages from the individual union members. Relying principally on the legislative history of § 301, the Court of Appeals concluded that Congress had not intended through § 301 to "create a cause of action for damages against individual union members for breach of a no-strike agreement." 614 F.2d, at 1116. We agree.
II
7
Since Textile Workers v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957), it has been settled that § 301(a)5 does more than confer jurisdiction on federal courts to decide lawsuits alleging violations of collective-bargaining agreements. Section 301(a) also "authorizes federal courts to fashion a body of federal law for the enforcement of these collective bargaining agreements." Textile Workers v. Lincoln Mills, 353 U.S., at 451, 77 S.Ct., at 915. Lincoln Mills defined the mode of analysis for fashioning this body of federal law as follows:
8
"The Labor Management Relations Act expressly furnishes some substantive law. It points out what the parties may or may not do in certain situations. Other problems will lie in the penumbra of express statutory mandates. Some will lack express statutory sanction but will be solved by looking at the policy of the legislation and fashioning a remedy that will effectuate that policy. The range of judicial inventiveness will be determined by the nature of the problem." Id., at 457, 77 S.Ct., at 918.
9
Of course, "Lincoln Mills did not envision any freewheeling inquiry into what the federal courts might find to be the most desirable rule, irrespective of congressional pronouncements." Howard Johnson Co. v. Hotel & Restaurant Employees, 417 U.S. 249, 255, 94 S.Ct. 2236, 2240, 41 L.Ed.2d 46 (1974). Rather, it is clear that in fashioning federal law under § 301(a) substantial deference should be paid to revealed congressional intention. See Atkinson v. Sinclair Refining Co., supra, 370 U.S., at 248-249, 82 S.Ct., at 1324-1325.
10
In Atkinson, the Court relied on the intent of Congress in passing § 301(b) to hold that individual union members may not be sued for damages where the union has breached the no-strike provision of its collective-bargaining agreement. Section 301(b) states in pertinent part that "[a]ny money judgment against a labor organization . . . shall be enforceable only against the organization as an entity and against its assets, and shall not be enforceable against any individual member or his assets." Thus, in Atkinson, we noted that "in discharging the duty Congress imposed on us to formulate the federal law to govern § 301(a) suits, we are strongly guided by and do not give a niggardly reading to § 301(b)." Ibid. Accordingly, we consulted and relied on the legislative history of § 301(b) which made it "clear that th[e] third clause [of § 301(b) ] was a deeply felt congressional reaction against the Danbury Hatters case . . . and an expression of legislative determination that the aftermath . . . of that decision was not to be permitted to recur." Id., at 248, 82 S.Ct., at 1324.6 Similarly, in deciding the question presented in this case, we "discharg[e] the duty Congress imposed on us to formulate the federal law to govern § 301(a) suits," Id., at 248-249, 82 S.Ct., at 1324, by looking to the "penumbra" of § 301(b), 353 U.S., at 457, 77 S.Ct., at 918, as informed by its legislative history. See Howard Johnson Co. v. Hotel & Restaurant Employees, supra, at 255, 94 S.Ct., at 2240.
11
Section 301(b) by its terms prohibits a money judgment entered against a union from being enforced against individual union members. See Atkinson v. Sinclair Refining Co., supra. It is a mistake to suppose that Congress thereby suggested by negative implication that employees should be held liable where their union is not liable for the strike. See Sinclair Oil Corp. v. Oil, Chemical & Atomic Workers, 452 F.2d 49, 52 (C.A. 7 1971). Although lengthy and complex, the legislative history of § 301 clearly reveals Congress' intent to shield individual employees from liability for damages arising from their breach of the no-strike clause of a collective-bargaining agreement, whether or not the union participated in or authorized the illegality. Indeed, Congress intended this result even though it might leave the employer unable to recover for his losses. See Atkinson v. Sinclair Refining Co., supra, at 248, 82 S.Ct., at 1324.
12
The legislative history of § 301 begins with a review of congressional efforts in the year prior to adoption of the Labor Management Relations Act. Section 10 of the Case bill, H.R. 4908, 79th Cong., 2d Sess. (1946), passed by both Houses of Congress, but vetoed by the President in 1946, was "the direct antecedent of § 301." Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 509, 82 S.Ct. 519, 523, 7 L.Ed.2d 483 (1962). Since § 10 "contained provisions substantially the same . . . as the provisions of § 301," ibid., its legislative history is highly relevant in ascertaining congressional intent with respect to § 301, see id., at 511-512, 82 S.Ct., at 524-525.
13
The purpose of § 10 was "to establish a mutual responsibility when the collective-bargaining process has resulted in a contract." 92 Cong.Rec. 838 (1946) (remarks of Rep. Case). As introduced in the House, § 10 provided for collective-bargaining agreements to be enforceable "against each of the parties thereto."7 The Senate adopted a bill which encompassed the purposes of § 10 of the House version and which, in addition, explicitly permitted an employer to discharge an employee who participated in a strike which was not authorized by the union.8 Senator Taft, principal proponent of the provision, explained:
14
* * *
15
"(d) Any employee who participates in a strike or other stoppage of work in violation of an existing collective-bargaining agreement, if such strike or stoppage is not ratified or approved by the labor organization party to such agreement and having exclusive bargaining rights for such employee, shall lose his status as an employee of the employer party to such agreement for the purposes of sections 8, 9, and 10 of the National Labor Relations Act: Provided, That such loss of status for such employee shall cease if and when he is reemployed by such employer." 92 Cong.Rec. 5705 (1946).
16
"If the union violates its collective bargaining-agreement, it is responsible, but no individual member is responsible, and he can in no way be deprived of his rights. But if the union tries to keep its contract and, in violation of its undertaking, some of its members proceed to strike, then the employer may fire those members and they do not have the protection of the Wagner Act." 92 Cong.Rec. 5705-5706 (1946).
17
Thus the Senator stopped short of proposing that individual employees be held liable in damages for engaging in unauthorized strikes.
18
The House's subsequent consideration of the Senate's version reflected its clear understanding of the Senate's limitation on employers' remedies. Representative Case explained the Senate amendment on the floor of the House:
19
"Individual members of a union are not made liable for any money judgment, I might point out, but only the union as an entity. If employees strike in violation of their agreement, the only individual penalty that can be employed is the forfeiture of their right to employment under that contract which is cured when the employer reemploys them." Id., at 5930-5931 (emphasis added).9
20
The House then passed the Senate version. In doing so, the House, like the Senate, clearly intended to protect employees from the sanction of a suit for damages for a strike in breach of the collective-bargaining agreement, whether or not the union participated in or authorized the strike. It is true that the President vetoed this bill and that his veto was sustained. Nevertheless, the substantial similarity between the pertinent language of the Case bill as passed by Congress and of § 301 as it reads today makes the legislative history of the Case bill vitally significant to a full understanding of the policy behind § 301(b).
21
Six months after the veto, Congress began work on the legislation which became § 301.10 The bill ultimately passed by the House created a federal cause of action for breach of a collective-bargaining agreement.11 The Committee Report explained that "actions and proceedings involving violations of contracts between employers and labor organizations may be brought by either party." H.R.Rep.No.245, 80th Cong., 1st Sess., 45-46 (1947). Section 302(b) also contained express language precluding enforcement against individuals of judgments entered against unions.12 In addition, the bill included an amendment to § 7 of the National Labor Relations Act providing that "violations of collective bargaining-agreements" would not be protected under the Act, H.R. 3020, 80th Cong., 1st Sess. (1947), § 7(a), thereby allowing employers to discharge wildcat strikers.13 The House bill also included a provision, however, which allowed an employer to recover damages from individual employees. Section 12 created a damages action against any person engaging in an unlawful concerted activity. The bill defined "unlawful concerted activities" to include, inter alia, jurisdictional strikes, sympathy strikes, and certain picketing activities.
22
Significantly, however, the Senate rejected the House's imposition in § 12 of damages liability against individuals for unlawful concerted activity, and a Conference Committee adopted the Senate version.14 The Senate counterpart to § 12 of the House bill was § 303. Senator Taft offered a floor amendment to § 303 which would have established a damages action against individuals who engage in certain types of unlawful concerted activity such as secondary boycotts and jurisdictional strikes. 93 Cong.Rec. 4900 (1947). In a critical exchange during the debate on the proposed amendment, Senator Taft altered the language to limit damages actions to claims against unions, in order to conform with § 301(b) and bar imposition of individual damages liability against employees:
23
"Mr. MORSE: [T]he proposal of the Senator from Ohio would open wide the doors of the Federal courts to damage suits against any person who engaged in a strike or attempted to persuade other employees to engage in a strike for one of the prohibited objectives.
24
"The proposal would very definitely take us back at least 40 years and we would again have the spectacle of mass suits against employees, similar to the infamous Danbury Hatters case. Senators will recall that in that case some 150 members of the union were sued by their employer and the Supreme Court of the United States sustained a judgment against them in the neighborhood of a quarter million dollars. . . .
25
"It also should be pointed out that the substitute proposal is inconsistent with the present provision in the bill allowing a union to be sued for breach of contract. Section 301 of the bill permits suits against labor organizations only, whereas the substitute proposal allows damage suits against 'any person.' Also, section 301 limits recovery to the assets of the union. The substitute allows the attachment of employees' bank accounts and all their property.
26
* * * * *
27
"Mr. TAFT: On request by . . . Senator [Ives] from New York and others who raised the point, I am amending the proposal, by striking out the word 'person,' in the second line, and inserting in lieu thereof 'labor organization,' so the action will be open only against labor organizations promoting this type of strike." Id., at 4839-4841.15
28
The Senate passed this version of the bill, foreclosing individual damages liability in both § 301 and § 303 lawsuits.
29
At conference, the Conference Committee squarely rejected § 12 of the House bill in favor of § 303 of the Senate bill, thereby refusing to create a damages action against individual employees for the conduct prohibited in that section. In addition, the Committee deleted the provision in the House bill which had removed protection under § 7 of the National Labor Relations Act for concerted activity in breach of a collective-bargaining agreement for the stated reason that the provision was unnecessary in light of recent decisions of the National Labor Relations Board. Those provisions had held that "strikes in violation of collective bargaining contracts were not concerted activities protected by the act and [the NLRB had] refused to reinstate employees discharged for engaging in such activities." H.R.Conf.Rep.No.510, 80th Cong., 1st Sess., 39 (1947). The Committee, therefore, opted for a discharge remedy for violations of § 303 by individuals, rather than for the damages remedy that had been proposed by the House. At the same time, it preferred discharge as the employer's remedy under § 301 where employees violate the no-strike provision of their collective-bargaining agreement.16
30
Thus, while § 301(b) explicitly addresses only union-authorized violations of a collective-bargaining agreement, the "penumbra" of § 301(b), Textile Workers v. Lincoln Mills, 353 U.S., at 457, 77 S.Ct., at 918, as informed by its legislative history, establishes that Congress meant to exclude individual strikers from damages liability, whether or not they were authorized by their union to strike.17 The legislative debates and the process of legislative amendment demonstrate that Congress deliberately chose to allow a damages remedy for breach of the no-strike provision of a collective-bargaining agreement only against unions, not individuals, and, as to unions, only when they participated in or authorized the strike. See Carbon Fuel Co. v. Mine Workers, 444 U.S. 212, 216, 100 S.Ct. 410, 413, 62 L.Ed.2d 394 (1979). Congress itself balanced the competing advantages and disadvantages inherent in the possible remedies to combat wildcat strikes, and "we are strongly guided by" its choice.18 Atkin- son v. Sinclair Refining Co., 370 U.S., at 249, 82 S.Ct., at 1325. See Howard Johnson Co. v. Hotel & Restaurant Employees, 417 U.S., at 255, 94 S.Ct., at 2240. Accordingly, we hold that § 301(a) does not sanction damages actions against individual employees for violating the no-strike provision of the collective-bargaining agreement, whether or not their union participated in or authorized the strike.
31
Affirmed.
32
Justice POWELL, concurring in part and concurring in the judgment.
33
The Court's opinion makes clear that Congress, in enacting the Taft-Hartley amendments to the National Labor Relations Act, did not intend to hold individuals liable in damages for wildcat strikes. I therefore join the Court's judgment and most of its opinion. I do not, however, share the Court's view that there remains to management a "significant array of other remedies," ante, at 416, n. 18, with which to deter or obtain compensation for illegal strikes. In fact, the "remedies" said to be available are largely chimerical.
34
* Collective-bargaining agreements typically contain a promise by the union not to strike during the agreement's term. Unions agree to these no-strike clauses in exchange for the employer's promise to arbitrate disputes arising in contract administration. Textile Workers v. Lincoln Mills, 353 U.S. 448, 449, 455, 77 S.Ct. 912, 914, 917, 1 L.Ed.2d 972 (1957). Each promise is the "quid pro quo " for the other, Steelworkers v. American Mfg. Co., 363 U.S. 564, 567, 80 S.Ct. 1343, 1346, 4 L.Ed.2d 1403 (1960), because the employer yields traditional managerial autonomy in exchange for industrial peace.
35
Despite the mutual benefits of the no-strike/grievance-arbitration pact, strikes in breach of contract occur with disturbing frequency. In some cases, these strikes are encouraged or even instigated by union leaders.1 Often, however, they are true "wildcats"—strikes that arise spontaneously to protest grievances against the company and, occasionally, against the union leadership itself. Responsible unions disapprove of such strikes, but some officials, especially those at the local level, may acquiesce in them because of the fervor of intransigent members.
36
Whatever the cause, strikes in breach of contract frequently injure all concerned: the employer,2 employees, and the public. Strikes and lockouts by their nature squander human working capacity, the full use of which is essential to the enjoyment of the Nation's productive potential. To be sure, the national labor policy recognizes that, in some circumstances, the use of weapons of strike and lockout is consistent with and protected by law. Labor, management, and the public nevertheless share a "common goal of uninterrupted production." Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1409 (1960). The essential tenet of our labor policy is that "a system of industrial self-government" based on consensual (albeit vigorously negotiated) labor contracts, see Steelworkers v. American Mfg. Co., supra, at 570, 80 S.Ct., at 1347 (BRENNAN, J., concurring), is preferable to "strikes, lockouts, or other self-help," Boys Markets, Inc. v. Retail Clerks, 398 U.S. 235, 249, 90 S.Ct. 1583, 1591, 26 L.Ed.2d 199 (1970).
37
When the Taft-Hartley amendments were enacted in 1947, the Nation had experienced a wave of labor unrest.3 Congress found that "the balance of power in collective-bargaining" had been destroyed because employers, who had promised to arbitrate disputes in exchange for no-strike promises, often failed to obtain the industrial peace for which they bargained. S.Rep. 14.4
II
38
It is increasingly clear that the 1947 Taft-Hartley amendments did not provide employers with an effective remedy for wildcat strikes. The Court today holds, properly I think, that Congress intended to foreclose a damages remedy against individual wildcat strikers. The Court states, however, that there remains a number of legal weapons with which to deter or terminate illegal strikes, or to obtain compensation when they occur. Ante, at 416-417, n. 18. In support of its view, the Court contends that the employer may (i) obtain an injunction, (ii) discharge the strikers, (iii) request the union to use its internal disciplinary powers, or (iv) sue the union entity for damages. Ibid. In reality, more often than not, each of these remedies is illusory.
39
Injunctions in labor disputes are generally prohibited by the Norris-LaGuardia Act.5 In Boys Markets, Inc. v. Retail Clerks, supra, the Court recognized a limited exception to the anti-injunction provisions of that Act. Boys Markets permits injunctions to terminate strikes pending arbitration if the grievance underlying the strike is arbitrable. However, Boys Markets offers only "narrow" relief, 398 U.S., at 253, 90 S.Ct., at 1594, because injunctions cannot be obtained in strikes of other kinds. E. g., Buffalo Forge Co. v. Steelworkers, 428 U.S. 397, 96 S.Ct. 3141, 49 L.Ed.2d 1022 (1976) (injunctions not available in sympathy strikes). Moreover, even when an injunction is available, workers on strike often are disinclined to obey it.6 Courts may be reluctant to impose contempt penalties on individual workers; if ordered, such penalties are difficult to enforce.
40
Nor is discharge a realistic remedy in most cases. Because a strike in breach of contract is unprotected conduct under the National Labor Relations Act, see NLRB v. Sands Mfg. Co., 306 U.S. 332, 59 S.Ct. 508, 83 L.Ed. 682 (1939), workers who strike illegally may be terminated. It therefore has been argued that discharge effectively deters strikes and punishes wrongdoers because discharge is "the industrial equivalent of capital punishment." M. Jay Whitman, Wildcat Strikes: The Union's Narrowing Path to Rectitude?, 50 Ind.L.J. 472, 481 (1975). There are at least three reasons why this remedy in practice often is not effective. First, in a large wildcat strike, wholesale discharges are not practical because an employer cannot terminate all or most of his labor force without crippling production. See Boys Markets, supra, 398 U.S., at 248-249, n. 17, 90 S.Ct., at 1591, n. 17.7 Second, certain kinds of selective discharges arguably are illegal. The National Labor Relations Board takes the position that an employer may not discipline a union officer more severely than other strike participants, even where the union officer failed to fulfill a contractual undertaking to help terminate strikes.8 In any event, discharging only selected strikers is unlikely to influence the rank and file to return to work. Such discharges actually may aggravate worker discontent and thereby prolong the strike. Cedar Coal Co. v. United Mine Workers, 560 F.2d 1153, 1157 (C.A. 4 1977), cert. denied, 434 U.S. 1047, 98 S.Ct. 893, 54 L.Ed.2d 798 (1978); see 86 Harv.L.Rev. 447, 454, n. 33 (1972). At a minimum, strikers may insist that their discharged colleagues be reinstated as a condition to returning to work. Fishman & Brown, Union Responsibility for Wildcat Strikes, 21 Wayne L.Rev. 1017, 1022 (1975). Third, arbitrators not infrequently refuse to sustain discharges of strikers. See Handsaker & Handsaker, Remedies and Penalties for Wildcat Strikes: How Arbitrators and Federal Courts Have Ruled, 22 Cath.U.L.Rev. 279, 284 (1973).
41
The union itself normally will not discipline its striking members. Most unions have the legal authority to take such action, see Summers, Legal Limitations on Union Discipline, 64 Harv.L.Rev. 1049, 1065 (1951), but the power seldom is used. In a wildcat strike, worker recalcitrance sometimes is directed at the incumbent union leadership as much as at company management. In these circumstances, the union's attempt to discipline is unlikely to be effective and may be counterproductive. Moreover, under this Court's decision in Carbon Fuel Co. v. Mine Workers, 444 U.S. 212, 100 S.Ct. 410, 62 L.Ed.2d 394 (1979), a parent union normally is not obligated to take affirmative steps to prevent or terminate a wildcat strike. Absent such an obligation, there is little incentive for the union to intervene, even where intervention would be useful.
42
Finally, a suit for damages against the union entity rarely is feasible.9 Last Term, in Carbon Fuel, supra, we largely foreclosed this possibility when we held that liability normally may not be imposed on a parent union10 absent proof that it authorized or ratified the strike.11 It is a foolish union that would invite a damages suit by explicitly endorsing a strike in this manner. See n. 1, supra.
III
43
The Court plainly is unrealistic, therefore, when it suggests that employers have at their disposal a battery of alternative remedies for illegal strikes. Ante, at 416-417, n. 18. The result of the absence of remedies is a lawless vacuum. Despite a no-strike clause, a plant may be closed with adverse consequences that often are far-reaching. The strike injures the employer, other companies and their employees, and consumers in general. Frequently, the strike is harmful even to the majority of strikers, who feel obligated to honor the picket line of minority wildcatters.
44
It is, of course, the province of Congress to set the Nation's labor policy. I do not suggest that authorizing a damages remedy against individual wildcat strikers would be desirable. I do believe, however, that the absence of an effective remedy leaves such strikes undeterred and the public interest unprotected. The National Labor Relations Act, as amended in 1947, was intended to further broaden national interests than those of either labor or management. It was conceived not only as a charter for labor rights but also as a framework of law to promote orderly labor relations. Wildcat strikes are at war with these objectives.
45
Chief Justice BURGER, with whom Justice REHNQUIST joins, dissenting.
46
The Court today holds that individual employees who, without the approval of their union, breach a covenant not to strike in the collective-bargaining agreement between their union and their employers may not be held liable for resulting damages to the employers. At stake is the fundamental principle that individuals are accountable when they breach a voluntarily executed contract.
47
The underlying facts in this case are not in dispute. The respondents are members of Local 332 of the International Brotherhood of Teamsters, which acts as their exclusive bargaining agent with petitioners, their employers. The union and the petitioners have entered into a collective-bargaining agreement that provides in part:
48
"The Unions and Employers agree that there shall be no strike, tie-up of equipment, slowdowns or walkouts on the part of the employee . . . without first using all possible means of settlement, as provided in this Agreement, of any controversy which might arise." App. 14-15.
49
Despite this covenant, the respondents embarked on what is commonly called a "wildcat" strike; it is admitted that the local union "did not aid, assist or authorize the work stoppage or a tie-up of any equipment." Id., at 25.
50
Section 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a), makes collective-bargaining agreements enforceable in federal courts against both unions and employers. See H.R.Rep. No. 245, 80th Cong., 1st Sess., 46 (1947); S.Rep. No. 105, 80th Cong., 1st Sess., 15-16 (1947). Of course the union, acting on behalf of its members, may sue the employer for any breaches of the agreement, and the employer may sue the union for its breaches. This is no more than a corollary to the enforceability of the contract under § 301(a). Moreover, the Court has had no problem in the past in holding the parties responsible for a breach accountable for their conduct. An employee may sue the employer directly for breach of the agreement even though the employee is not technically a party to the agreement, Smith v. Evening News Assn., 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962), but the employer may not sue an individual worker for a union-sponsored breach, Atkinson v. Sinclair Refining Co., 370 U.S. 238, 82 S.Ct. 1318, 8 L.Ed.2d 462 (1962) (applying Labor Management Relations Act § 301(b), 29 U.S.C. § 185(b)). Nor may the employer sue the union for members' breaches that the union has not condoned, Carbon Fuel Co. v. Mine Workers, 444 U.S. 212, 100 S.Ct. 410, 62 L.Ed.2d 394 (1979).1 This case presents the final unresolved situation: May individual union members be held accountable in a suit by the employer for a plain violation of the agreement committed without the approval of the union?
51
On the basis of literally centuries of the common law of contracts, one would have thought that the traditional notions of accountability for one's voluntary actions would govern. Instead, the Court holds that individual workers, acting without union approval, are a special, privileged class who may with impunity violate an agreement voluntarily reached in arm's-length bargaining. This result finds no support in the statute, it significantly undermines the usefulness and reliability of the collective-bargaining process, and it will not advance the goals the Court claims for it.
52
In reaching this unusual conclusion, the Court mistakenly relies on the last sentence in § 301(b) of the Labor Management Relations Act, which states:
53
"Any money judgment against a labor organization in a district court of the United States shall be enforceable only against the organization as an entity and against its assets, and shall not be enforceable against any individual member or his assets." 29 U.S.C. § 185(b).
54
On its face, this clause does no more than insulate union members from personal liability for union breaches of the contract; Congress intended this provision to give union members a protection analogous to that afforded stockholders in corporations against personal liability for corporate acts. S.Rep. No. 105, 80th Cong., 1st Sess., 16 (1947) ("members of the union would secure all the advantages of limited liability without incorporation"). It is acknowledged that Congress added this provision to the Act to prevent a recurrence of the Danbury Hatters situation, see Lawlor v. Loewe, 235 U.S. 522, 35 S.Ct. 170, 59 L.Ed. 341 (1915); Loewe v. Lawlor, 208 U.S. 274, 28 S.Ct. 301, 52 L.Ed. 488 (1908), where the participants in a strike were held personally liable for the union's actions on the theory that the union, as an unincorporated association, could not be sued. Ante, at 406-407, and n. 6; Atkinson v. Sinclair Refining Co., supra, at 248, 82 S.Ct., at 1324; 93 Cong.Rec. 5014 (1947) (remarks of Sen. Ball). But the language of § 301(b) says nothing about holding union members harmless when they, without the approval of their union, individually breach the contract.
55
The special exemption in § 301(b) affords individual union members protection against individual liability for collective action; this simultaneously encourages group action through the union—which is what unions are all about—and prevents potentially large damages awards against individual workers. But when Congress changed the law regarding individual liability for union conduct, it did not even hint at changing the common-law rule of contract law of individual liability for individual conduct, which does no more than articulate the basic idea of individual accountability essential to an organized society.2 When an individual, either personally or, as here, through an agent, voluntarily enters into a binding agreement, that individual is liable in damages for breach. A provision whose language governs—and whose history indicates it was designed to govern—only situations of individual liability for collective action should not be construed to wipe out core principles of personal accountability for individual actions.
56
Curiously, the Court, ante, at 416, n. 18, and the respondents suggest that this anomaly will promote more harmonious relations between employers and striking workers by preventing a long and drawn-out fight in the courts. This argument is wholly specious, and it is contradicted by the views Congress expressed when it adopted § 301. Congress fully recognized that agreements, if breachable with impunity, "do not tend to stabilize industrial relations. The execution of an agreement does not by itself promote industrial peace." S.Rep. No. 105, 80th Cong., 1st Sess., 16 (1947). If workers can "have their cake and eat it too" by holding the employer liable for its breaches but receiving immunity for their own, employers will be less likely to enter into mutually satisfactory collective-bargaining agreements in the first place. "Without some effective method of assuring freedom from economic warfare for the term of the agreement, there is little reason why an employer would desire to sign such a contract." Ibid. Indeed, the Court's logic would insulate unions from suit as well: an action against the union for a strike it had sponsored but that since has ended similarly tends to "reopen old wounds." Moreover, I have difficulty seriously entertaining an argument that the employer is responsible for jeopardizing industrial harmony by seeking damages for injuries it has sustained when it was the unlawfully striking employees themselves who broke the peace in the first place. One must resist the temptation to recall the youth who, having deliberately murdered both parents, pleads for the court's mercy as an orphan.
57
The respondents believe—and the Court accepts, ante, at 416, n. 18—that the threat of discharge by the employer or discipline by the union is sufficient to ensure that collective-bargaining agreements generally will be followed by the union and its members.3 These measures, however, are no answer; they may be too little4 and they surely come too late, after the employer has suffered substantial losses to its business due to a strike that, under the contract, never should have occurred. In theory, the employer might mitigate damages by hiring substitute workers, but this assumes qualified workers could be found who would be willing to cross even a "wildcat" picket line.
58
Accountability of each individual for individual conduct lies at the core of all law—indeed, of all organized societies. The trend to eliminate or modify sovereign immunity is not an unrelated development; we have moved away from "The King can do no wrong." This principle of individual accountability is fundamental if the structure of an organized society is not to be eroded to anarchy and impotence, and it remains essential in civil as well as criminal justice. Today the Court penalizes the employer for the "wildcat" breaches of the employees and rewards those errant employees.
59
It seems to me that, by now, the American labor movement has matured sufficiently so that neither unions nor their members need this kind of artificial, excessively paternalistic protection for admittedly illegal acts—a protection contrary to fundamental, centuries-old concepts of individual accountability. The stability of unions and the harmony of industrial relations will be enhanced, not impaired, by applying to union members the same standards of accountability that govern all other individuals in society.5
60
This Court ought not to make two classes of contract breakers under collective-bargaining agreements, one liable and one immune. I submit that if union members understand that where they breach a contract without the approval of their union, individual liability will follow, we will very likely see fewer unauthorized strikes, for union authority will be enhanced and greater industrial harmony will likely result.
1
The no-strike clause provides that "[t]he Unions and the Employers agree that there shall be no strike, tie-up of equipment, slowdowns or walkouts on the part of the employees, nor shall the Employer use any method of lockout or legal proceeding without first using all possible means of a settlement, as provided for in this Agreement, of any controversy which might arise." See Exhibit A to Complaint of Complete Auto Transit, Inc., 24-25.
2
In Boys Markets, Inc. v. Retail Clerks, 398 U.S., at 253-254, 90 S.Ct., at 1594, this Court held that the Norris-LaGuardia Act's prohibition against enjoining strikes does not apply where the "collective-bargaining contract contains a mandatory grievance adjustment or arbitration procedure," where the grievance is subject to arbitration, and where the usual requirements for obtaining equitable relief have been satisfied.
3
In Buffalo Forge Co. v. Steelworkers, 428 U.S., at 407, 96 S.Ct., at 3147 (emphasis in original), this Court held that the Federal District Court properly refused to enjoin a sympathy strike because "the strike was not over any dispute between the Union and the employer that was even remotely subject to the arbitration provisions of the contract." The Court further held that, even though the "dispute whether the sympathy strike violated the Union's no-strike undertaking . . . was arbitrable," injunctive relief was not warranted, since to hold otherwise "would cut deeply into the policy of the Norris-LaGuardia Act and make the courts potential participants in a wide range of arbitrable disputes." Id., at 410, 96 S.Ct., at 3149.
4
We express no view on whether the Court of Appeals' ruling was correct.
5
Section 301, as set forth in 29 U.S.C. § 185, states in pertinent part:
"(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.
"(b) Any labor organization which represents employees in an industry affecting commerce as defined in this chapter and any employer whose activities affect commerce as defined in this chapter shall be bound by the acts of its agents. Any such labor organization may sue or be sued as an entity and in behalf of the employees whom it represents in the courts of the United States. Any money judgment against a labor organization in a district court of the United States shall be enforceable only against the organization as an entity and against its assets, and shall not be enforceable against any individual member or his assets."
6
In the Danbury Hatters case, "an antitrust treble damage action was brought against a large number of union members, including union officers and agents, to recover from them the employer's losses in a nationwide, union-directed boycott of his hats. The union was not named as a party, nor was judgment entered against it. A large money judgment was entered, instead, against the individual defendants for participating in the plan 'emanating from headquarters' . . ., by knowingly authorizing and delegating authority to the union officers to do the acts involved. In the debates, Senator Ball, one of the Act's sponsors, declared that § 301, 'by providing that the union may sue and be sued as a legal entity, for a violation of contract, and that liability for damages will lie against union assets only, will prevent a repetition of the Danbury Hatters case, in which many members lost their homes.' " Atkinson v. Sinclair Refining Co., 370 U.S., at 248, 82 S.Ct., at 1324-1325. See Savings Bank of Danbury v. Loewe, 242 U.S. 357, 37 S.Ct. 172, 61 L.Ed. 360 (1917); Lawlor v. Loewe, 235 U.S. 522, 35 S.Ct. 170, 59 L.Ed. 341 (1915); Loewe v. Lawlor, 208 U.S. 274, 28 S.Ct. 301, 52 L.Ed. 488 (1908).
7
Section 10 of the Case bill provided:
"All collective-bargaining contracts shall be mutually and equally binding and enforceable either at law or in equity against each of the parties thereto, any other law to the contrary notwithstanding. In the event of a breach of any such contract or of any agreement contained in such contract by either party thereto, then, in addition to any other remedy or remedies existing either in law or equity, a suit for damages for such breach or for injunctive relief in equity may be maintained by the other party or parties in any United States district court having jurisdiction of the parties. If the defendant against whom action is sought to be commenced and maintained is a labor organization, such action may be filed in the United States district court of any district wherein any officer of such labor organization resides or may be found." H.R. 5262, 79th Cong., 2d Sess. (1946).
Representative Case explained that the "parties" against whom a "suit for damages" would lie were limited to the employer and to "the recognized bargaining agent rather than an individual." 92 Cong.Rec. 765 (1946).
8
Senate Amendment No. 3 to H.R. 4908, passed by the Senate, stated in pertinent part:
"(a) Suits for violation of a contract concluded as the result of collective bargaining between an employer and a labor organization if such contract affects commerce as defined in this act may be brought in any district court of the United States having jurisdiction of the parties.
"(b) Any labor organization whose activities affect commerce as defined in this act shall be bound by the acts of its duly authorized agents acting within the scope of their authority from the said labor organization and may sue or be sued as an entity and in behalf of the employees whom it represents in the courts of the United States: Provided, That any money judgment against such labor organization shall be enforceable only against the organization as an entity and against its assets, and shall not be enforceable against any individual member or his assets.
9
Representative Halleck echoed Representative Case:
"Mr. Speaker, there is substituted for that [the provision] which has to do with the responsibility of the individual who goes out on a wildcat strike in violation of a contract and in violation of the wishes of his organization. All we say is that if he breaches his contract as an individual in that manner, his employer does not have to take him back unless he wants to. What is the matter with that[?]" Id., at 5932.
10
In the House, Representative Case introduced a bill containing a provision establishing federal-court jurisdiction over actions for breaches of collective-bargaining agreements. Subsections (a) and (b) were virtually identical to their counterparts in the bill passed in the previous session of Congress. As Representative Case explained the bill before the House Committee on Education and Labor, "there is no provision for suing individual workers, as such, or rendering any judgment against them." Hearings before the House Committee on Education and Labor on Amendments to the National Labor Relations Act, 80th Cong., 1st Sess., 125 (1947). Instead, wildcat strikers would be subject to discharge. Ibid.
Representative Case's testimony before the House Committee is also instructive:
"Mr. Landis. I agree that you can deny the members the rights of the Wagner Act, but say there is one coal mine—we had an instance in Indiana where one coal mine went out on a wildcat strike, and the United Mineworkers organization did not like it, and they tried to get the men to go back to work, and they would not go back to work, and still refused to go back to work for several days.
"Who would you sue in that case?
"Mr. Case. Of course, I would think the United Mine Workers, as an organization, would have a pretty good defense to any suit for damages against them, if they ordered the men back to work.
"It would seem to me, if you had a local that went out on strike, and they were parties to a contract, the local would be liable for damages." Id., at 126.
11
Section 302(a) stated:
"(a) Any action for or proceeding involving a violation of an agreement between an employer and a labor organization or other representative of employees may be brought by either party in any district court of the United States having jurisdiction of the parties, without regard to the amount in controversy, if such agreement affects commerce, or the court otherwise has jurisdiction of the cause." H.R. 3020, 80th Cong., 1st Sess. (1947).
12
Section 302(b) stated:
"(b) Any labor organization whose activities affect commerce shall be bound by the acts of its agents, and may sue or be sued as an entity and in behalf of the employees whom it represents in the courts of the United States. Any money judgment against a labor organization in a district court of the United States shall be enforceable only against the organization as an entity and against its assets, and shall not be enforceable against any individual member or his assets." H.R. 3020, supra.
13
The Committee Report stated that "[t]he committee has revised this section by writing into it in express terms that employees who strike or engage in similar activities in violation of collective-bargaining agreements . . . forfeit the protection of the Labor Act." H.R.Rep.No.245, 80th Cong., 1st Sess., 27 (1947).
14
The Senate Committee on Labor and Public Welfare had earlier reported a bill creating a federal cause of action for breach of a collective-bargaining agreement. It stated in pertinent part:
"Sec. 301(a) Suits for violation of contracts concluded as the result of collective bargaining between an employer and a labor organization representing employees in an industry affecting commerce as defined in this Act 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.
"(b) Any labor organization which represents employees in an industry affecting commerce as defined in this Act may sue or be sued in its common name in the courts of the United States: Provided, That any money judgment against such labor organization shall be enforceable only against the organization as an entity and against its assets, and shall not be enforceable against any individual member or his assets." H.R. 3020, supra.
15
During the floor debate, proponents of the Committee bill emphasized the limited nature of the damages remedy in the proposed legislation. For example, Senator Ball stated: "[W]e give to employers the right to sue a union in interstate commerce, in a Federal court, for violation of contract. It does not go beyond that." 93 Cong.Rec. 5014 (1949) (emphasis added).
16
"Many of the matters covered in section 12 of the House bill are also covered in the conference agreement in different form, as has been pointed out above in the discussion of section 7 and section 8(b)(1) of the conference agreement. Under existing principles of law developed by the courts and recently applied by the Board, employees who engage in violence, mass picketing, unfair labor practices, contract violations, or other improper conduct, or who force the employer to violate the law, do not have any immunity under the act and are subject to discharge without right of reinstatement. The right of the employer to discharge an employee for any such reason is protected in specific terms in section 10(c). Furthermore, under section 10(k) of the conference agreement, the Board is given authority to apply to the district courts for temporary injunctions restraining alleged unfair labor practices temporarily pending the decision of the Board on the merits." H.R.Conf.Rep. 510, 80th Cong., 1st Sess., 59 (1947).
17
Petitioners' reliance on the statement in Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 562, 96 S.Ct. 1048, 1055, 47 L.Ed.2d 231 (1976) (emphasis added), that "Section 301 contemplates suits by and against individual employees" is misplaced. We decide a much narrower question not before the Court in Hines : that § 301 does not contemplate recovery of damages from individual employees as a result of a breach of the no-strike provision of a collective-bargaining agreement. Whether Hines contemplated injunctive suits against individuals was not decided by the Court in Hines and we have no occasion to decide that issue now. See n. 18, infra.
18
Petitioners argue that a damages remedy against individual employees is indispensable to preserve the integrity of the collective-bargaining agreement and thereby to further the national labor policy of promoting industrial peace. This proposition is questionable on its own terms, overlooks an array of potential remedies that are available to the employer apart from a damages remedy against individuals, and in any event was rejected by Congress.
It is by no means certain that an individual damages remedy will meaningfully increase deterrence of wildcat strikes above that resulting from use of other available remedies. It is just as likely that damages actions against individuals would exacerbate industrial strife: "an action for damages prosecuted during or after a labor dispute would only tend to aggravate industrial strife and delay an early resolution of the difficulties between employer and union." Boys Markets, Inc. v. Retail Clerks, 398 U.S., at 248, 90 S.Ct., at 1591 (footnote omitted); see Gateway Coal Co. v. Mine Workers, 414 U.S. 368, 381, n. 14, 94 S.Ct. 629, 639, n. 14, 38 L.Ed.2d 583 (1974).
The significant array of other remedies available to employers to achieve adherence to collective-bargaining agreements casts further doubt on petitioners' proposition. First, an employer may seek damages against the union where responsibility may be traced to the union for the contract breach. See 29 U.S.C. § 185(b); Carbon Fuel Co. v. Mine Workers, 444 U.S. 212, 216-218, 100 S.Ct. 410, 413-414, 62 L.Ed.2d 394 (1979); Atkinson v. Sinclair Refining Co., 370 U.S., at 247-249, 82 S.Ct., at 1324-1325. Second, an employer may discharge, or otherwise discipline, an employee who unlawfully walks off the job. See id., at 246, 82 S.Ct., at 1323; NLRB v. Rockaway News Supply Co., 345 U.S. 71, 80, 73 S.Ct. 519, 524, 97 L.Ed. 832 (1953); Lakeshore Motor Freight Co. v. International Brotherhood of Teamsters, 483 F.Supp. 1150, 1154, n. 2 (W.D.Pa.1980) (wildcat strikers discharged, and those allowed to return were rehired as new employees). Third, the union itself may discipline its members. See Carbon Fuel Co. v. Mine Workers, supra, 442 U.S., at 220, 100 S.Ct., at 415; Sinclair Oil Corp. v. Oil, Chemical & Atomic Workers, 452 F.2d 49, 54 (C.A. 7 1971); see 92 Cong.Rec. 5706 (1946) (Sen. Capehart) (debate on Case bill). Finally, an employer may seek injunctive relief against unions for breach of a no-strike provision in a collective-bargaining agreement where the underlying dispute giving rise to the breach is subject to binding arbitration. See Buffalo Forge Co. v. Steelworkers, 428 U.S., at 407, 96 S.Ct., at 3147; Gateway Coal Co. v. Mine Workers, supra, at 380-387, 94 S.Ct., at 638-641; Boys Markets, Inc. v. Retail Clerks, supra. Whether a Boys Markets-Buffalo Forge injunction could have issued against individual union members engaged in the wildcat strike at issue here is not before us. It may be that an injunction would not issue against a participating or authorizing union in circumstances otherwise the same: in the instant case the District Judge found that the strike commenced over a nonarbitrable labor dispute, and that ruling was not disturbed by the Court of Appeals.
1
Strike encouragement sometimes is explicit but more often is cryptic. A union may employ subtle signals to convey the message to strike. One court noted that unions sometimes employ "a nod or a wink or a code . . . in place of the word 'strike.' " United States v. UMW, 77 F.Supp. 563, 566 (D.C.1948), aff'd, 85 U.S.App.D.C. 149, 177 F.2d 29, cert. denied, 338 U.S. 871, 70 S.Ct. 140, 94 L.Ed. 535 (1949).
2
Production disruptions have obvious short-term adverse consequences. And one commentator has pointed out that the long-term consequences of these strikes may be even more severe. A strike rends the "closely integrated supply and distribution systems" that the company has developed. M. Jay Whitman, Wildcat Strikes: The Unions' Narrowing Path to Rectitude?, 50 Ind.L.J. 472, 473 (1975). Such systems "presume predictability. A business with a reputation for labor problems, let alone, wildcats, simply cannot provide its customers with that predictability," ibid., leading once-regular customers to seek other sources of supply.
3
The Senate Report accompanying the Taft-Hartley amendments observed that the Nation in 1945 experienced "the loss of approximately 38,000,000 man-days of labor through strikes. This total was trebled in 1946 when there were 116,000,000 man-days lost. . . ." S.Rep. No. 105, 80th Cong., 1st Sess., 2 (1947) (hereinafter S.Rep.).
4
The Senate Report stated that if workers "can break agreements with relative impunity, then such agreements do not tend to stabilize industrial relations. The execution of such an agreement does not by itself promote industrial peace. The chief advantage which an employer can reasonably expect from a collective labor agreement is assurance of uninterrupted operation during the term of the agreement. Without some effective method of assuring freedom from economic warfare for the term of the agreement, there is little reason why an employer would desire to sign such a contract." Id., at 16.
5
Section 4 of the Norris-LaGuardia Act, 47 Stat. 70, 29 U.S.C. § 104, provides, in pertinent part:
"No court of the United States shall have jurisdiction to issue any restraining order or temporary or permanent injunction in any case involving or growing out of any labor dispute. . . ."
6
Compare Old Ben Coal Corp. v. Local 1487, UMW, 457 F.2d 162 (C.A. 7 1972), with Old Ben Coal Corp. v. Local 1487, UMW, 500 F.2d 950, 952 (C.A. 7 1974). See Gould, On Labor Injunctions Pending Arbitration: Recasting Buffalo Forge, 30 Stan.L.Rev. 533, 541, and n. 47 (1978).
7
Discharging the entire work force would "caus[e] mountainous personnel problems. Consider the sheer logistics of hiring, training and acclimating an entirely new work force with suitable skills. Even if a new labor force could be recruited, the time and expense of this process, from recruitment to full production, could very well sound the death knell of the business." Fishman & Brown, Union Responsibility for Wildcat Strikes, 21 Wayne L.Rev. 1017, 1021 (1975).
8
E. g., Miller Brewing Co., 254 N.L.R.B. 266 (1981); South Central Bell Telephone Co., 254 N.L.R.B. 315 (1981); Precision Casting Co., 233 N.L.R.B. 183 (1977). The Board's position is so clear that employers may be deterred from conducting selective discharges. This Court has not addressed the question, but some Courts of Appeals have not warmly received the Board's reasoning. See Gould, Inc. v. NLRB, 612 F.2d 728 (C.A. 3) (denying enforcement to 237 N.L.R.B. 881 (1978)), cert. denied sub nom. Moran v. Gould Corp., 449 U.S. 890, 101 S.Ct. 247, 66 L.Ed.2d 115 (1980); Indiana & Mich. Electric Co. v. NLRB, 599 F.2d 227 (C.A. 7 1979) (denying enforcement to 237 N.L.R.B. 226 (1978)); see also NLRB v. Armour-Dial, Inc., 638 F.2d 51, 54-56 (C.A. 8 1981).
9
Sophisticated employers for tactical reasons may elect to forgo tenable poststrike suits for damages. As the Court points out, such suits may "exacerbate industrial strife," ante, at 416, n. 18, and thereby delay the dissipation of the acrimony engendered by the strike. Employers also may elect not to sue for damages because they do not want to subject themselves to the disclosure attendant to litigation. A damages suit "necessarily involves detailed discussion of an employer's most intimate financial secrets. By making a damage claim, the employer puts its . . . finances . . . at issue in the litigation. The discovery rules of the Federal Rules of Civil Procedure give the union and its accountants the right to explore every corner of the employer's books. If the union conducts its case properly, it will know everything from per-unit profit to the finer details of [corporate] management." M. Jay Whitman, supra, n. 2, at 474 (footnote omitted).
Finally, part of the price of settling the strike often is a promise that the company will waive its claim for damages. Ransdell v. International Assn. of Machinists, 97 LRRM 2738, 443 F.Supp. 936 (ED Wis.1978); Gould, On Labor Injunctions, Unions and the Judges: The Boys Market Case, 1970 S.Ct.Rev. 215, 231.
10
Carbon Fuel did not consider the quantum of proof necessary to establish damages liability against a local union. Because of the local's proximity to workers, an inference of agency—and hence, liability—arguably may arise even without explicit proof of strike authorization or ratification. See § 301(e) of the Act, 29 U.S.C. § 185(e). The possibility that the local will be liable may be of little practical benefit, however, because the local often is judgment-proof.
11
Carbon Fuel recognized, of course, that an explicit contractual undertaking by the parent to intervene to terminate wildcats could be the basis for damages liability. See 444 U.S., at 218-222, 100 S.Ct., at 414-16.
1
Thus, the union is not an "insurer" of members' compliance with the collective-bargaining agreement or vice versa. Had this been the case, I might have been willing to join in the Court's position, for the union would remain liable for failing to see that its members abided by the agreement.
2
The Court cites various comments by Members of Congress regarding immunity for union members when they act with union approval. Those remarks do not address the issue before us individual liability for individual conduct undertaken without union involvement. The nearest the Court comes to finding support on that question is a remark by Senator Taft, made during debate on a predecessor bill subsequently vetoed by the President, that employers may fire "wildcat" strikers. Ante, at 409. Even Senator Taft's statement does not directly touch on individual liability for individual action, and, ironically, the Court's use of it follows on the heels of the Court's own admonition to avoid "suggest[ions] by negative implication." Ante, at 407.
3
The Court also mentions the employer's suit against the union itself when the union is responsible. Obviously, that remedy is wholly irrelevant to this case. See supra, at 425.
4
Justice POWELL, in his separate opinion, thoroughly analyzes the inadequacy of these measures. The union's impotence is demonstrated by its failure to control its members in the first place. In addition, union officers in some instances may reject discipline in the hope of appeasing "wildcat" members and bringing them back under union control. As Justice BRENNAN, writing for the Court in NLRB v. Allis-Chalmers Manufacturing Co., 388 U.S. 175, 183, 87 S.Ct. 2001, 2008, 18 L.Ed.2d 1123 (1967), aptly noted:
"Where the union is weak, . . . the union faced with further depletion of its ranks may have no real choice except to condone the member's disobedience."
5
Cf. United States v. Park, 421 U.S. 658, 95 S.Ct. 1903, 44 L.Ed.2d 489 (1975), in which the chief executive officer of a supermarket chain was held criminally liable for permitting food to be left in insanitary conditions after notice of those conditions.
| 67
|
451 U.S. 430
101 S.Ct. 1852
68 L.Ed.2d 270
Robert BULLINGTON, Petitioner,v.State of MISSOURI.
No. 79-6740.
Argued Jan. 14, 1981.
Decided May 4, 1981.
Syllabus
Missouri law provides only two possible sentences for a defendant convicted of capital murder: (a) death, or (b) life imprisonment without eligibility for probation or parole for 50 years. Under state statutes, a separate presentence hearing, at which additional evidence in mitigation and aggravation of punishment is heard, must be held before the same jury that found the defendant guilty; the prosecution must prove the existence of aggravating circumstances beyond a reasonable doubt before the death penalty may be imposed; and a jury that imposes the death penalty must designate in writing the aggravating circumstance or circumstances that it finds beyond a reasonable doubt. The guilt-or-innocence phase of petitioner's state-court trial resulted in a verdict of guilty of capital murder, and his presentence hearing resulted in the jury's additional verdict fixing petitioner's punishment at life imprisonment without eligibility for probation or parole for 50 years. After granting petitioner's post-trial motion for a new trial because of the intervening decision in Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 which held that Missouri's allowing automatic exemption of women from jury service was unconstitutional, the trial court announced that it would grant petitioner's motion, based on double jeopardy grounds, to strike the prosecution's notice that it intended again to seek the death penalty on the basis of the same aggravating circumstances it had sought to prove at the first trial. The Missouri Court of Appeals denied the State's request for a writ of prohibition or mandamus, but the Missouri Supreme Court ultimately granted a writ of prohibition.
Held: Because under Missouri law the sentencing proceeding at petitioner's first trial was like the trial on the question of guilt or innocence, the protection afforded by the Double Jeopardy Clause to one acquitted by a jury is available to him, with respect to the death penalty at his retrial. The reasoning of Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103, is not controlling. Pp. 437-446.
(a) This Court generally has concluded that, because the imposition of a particular sentence usually is not regarded as an "acquittal" of any more severe sentence that could have been imposed, the Double Jeopardy Clause imposes no absolute prohibition against the imposition of a harsher sentence at retrial after a defendant has succeeded in having his original conviction set aside. See North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656; Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714; Stroud v. United States, supra; United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328. However, in those cases, unlike the present case, the sentencing procedures did not have the hallmarks of a trial on guilt or innocence. In the first three cases, there was no separate sentencing proceeding at which the prosecution was required to prove additional facts in order to justify the particular sentence, and the sentencer's discretion in determining punishment was essentially unfettered. Although United States v. DiFrancesco, supra, involved a separate sentencing procedure, the prosecution was required to prove an additional fact warranting a harsher penalty only by a preponderance of the evidence, and the sentencer's choice of punishment was far broader than the two choices available to petitioner's jury under Missouri law. Pp. 437-441.
(b) The rationale of Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1, which held that a defendant may not be retried if he obtains a reversal of his conviction on the ground that the evidence was insufficient to convict, is relevant here. In the usual sentencing proceeding, it is impossible, because of the absence of sentencing standards, to conclude that a sentence less than the statutory maximum constitutes a decision to the effect that the prosecution has failed to prove its case. But by enacting a capital sentencing procedure that resembles a trial on the issue of guilt or innocence, Missouri explicitly requires the jury to determine whether the prosecution has "proved its case." Petitioner's sentence of life imprisonment at his first trial meant that the jury has already acquitted him of whatever was necessary to impose the death sentence. Pp. 441-446.
594 S.W.2d 908, reversed and remanded.
Richard H. Sindel, Clayton, Mo., for petitioner.
James J. Cook, Clayton, Mo., for respondent.
Justice BLACKMUN delivered the opinion of the Court.
1
Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103 (1919), concerned a defendant who was convicted of first-degree murder and sentenced to life imprisonment, and who then obtained, upon confession of error by the Solicitor General, a reversal of his conviction and a new trial. This Court, by a unanimous vote in that case, held that the Double Jeopardy Clause of the Fifth Amendment1 did not bar the imposition of the death penalty when Stroud at his new trial was again convicted.
2
The issue in the present case is whether the reasoning of Stroud is also to apply under a system where a jury's sentencing decision is made at a bifurcated proceeding's second stage at which the prosecution has the burden of proving certain elements beyond a reasonable doubt before the death penalty may be imposed.
3
* Missouri law provides two, and only two, possible sentences for a defendant convicted of capital murder:2 (a) death, or (b) life imprisonment without eligibility for probation or parole for 50 years. Mo.Rev.Stat. § 565.008.1 (1978).3
4
Like most death penalty legislation enacted after this Court's decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the Missouri statutes contain substantive standards to guide the discretion of the sentencer. The statutes also afford procedural safeguards to the convicted defendant. Section 565.006 provides that the trial court shall conduct a separate presentence hearing for the defendant who is convicted by a jury of capital murder.4 The hearing must be held before the same jury5 that found the defendant guilty, and "additional evidence in extenuation, mitigation, and aggravation of punishment" shall be heard. "Only such evidence in aggravation as the prosecution has made known to the defendant prior to his trial shall be admissible." The jury must consider whether the evidence shows that there exist any of the 106 aggravating circumstances or the 7 mitigating circumstances specified by the statute, see §§ 565.012.2 and 565.012.3; whether any other mitigating or aggravating circumstances authorized by law exist; whether any aggravating circumstances that do exist are sufficient to warrant the imposition of the death penalty; and whether any mitigating circumstances that exist outweigh the aggravating circumstances. § 565.012.1. A jury that imposes the death penalty must designate in writing the aggravating circumstance or circumstances that it finds beyond a reasonable doubt. § 565.012.4. It also must be convinced beyond a reasonable doubt that any aggravating circumstance or circumstances that it finds to exist are sufficient to warrant the imposition of the death penalty. Missouri Approved Instructions—Criminal (MAI-Cr) § 15.42 (1979). A Missouri jury is instructed that it is not compelled to impose the death penalty, even if it decides that a sufficient aggravating circumstance or circumstances exist and that it or they are not outweighed by any mitigating circumstance or circumstances. MAI-Cr. § 15.46. A jury's decision to impose the death penalty must be unanimous. If the jury is unable to agree, the defendant receives the alternative sentence of life imprisonment described above. § 565.006.2; MAI-Cr. § 15.48.
II
5
In December 1977, petitioner Robert Bullington was indicted in St. Louis County, Mo., for capital murder and other crimes arising out of the abduction of a young woman and her subsequent death by drowning.7
6
The Circuit Court of St. Louis County granted petitioner's pretrial motion for a change of venue to Jackson County in the western part of the State. The prosecution, by letter, informed the defense that the State would seek the death penalty if the jury convicted the defendant of capital murder. App. 12. The letter-notice stated that the prosecution would present evidence of two aggravating circumstances specified by the statute: that "[t]he offense was committed by a person . . . who has a substantial history of serious assaultive criminal convictions," § 565.012.2(1), and that "[t]he offense was outrageously or wantonly vile, horrible or inhuman in that it involved torture, or depravity of mind," § 565.012.2(7).
7
At the guilt-or-innocence phase of petitioner's trial, the jury returned a verdict of guilty of capital murder. App. 21. On the following day, the trial court proceeded to hold the presentence hearing required by § 565.006.2. Evidence submitted by the prosecution was received. None was offered by the defense. After argument by counsel, instructions from the judge and deliberation, the jury returned its additional verdict fixing petitioner's punishment not at death, but at imprisonment for life without eligibility for probation or parole for 50 years. App. 27.
8
Petitioner then moved, on various grounds, for judgment of acquittal or in the alternative for a new trial. While that motion was pending, Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), was decided. In that case this Court held that Missouri's constitutional and statutory provisions allowing women to claim automatic exemption from jury service deprived a defendant of his Sixth and Fourteenth Amendments right to a jury drawn from a fair cross-section of the community. The trial court overruled petitioner's motion for acquittal but, relying upon Duren, granted his motion for a new trial. App. 44.
9
Soon thereafter, the prosecution served and filed a formal "Notice of Evidence in Aggravation," stating that it intended again to seek the death penalty. The notice specified the same aggravating circumstances the State sought to prove at the first trial, see also Tr. of Oral Arg. 36, and asserted that it would introduce the evidence that was previously disclosed to defense counsel. App. 45-46. The defense moved to strike the notice, id., at 47, arguing that the Double Jeopardy Clause of the Fifth Amendment (as made applicable to the States through the Fourteenth Amendment, Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707 (1969)) barred the imposition of the penalty of death when the first jury had declined to impose the death sentence.
10
The trial court announced that it would grant that motion and would not permit the State to seek the death penalty. Before the court issued a formal order to this effect, the prosecution sought a writ of prohibition or mandamus from the Missouri Court of Appeals for the Western District. After granting a temporary "stop order," App. 56, the Court of Appeals without opinion denied the State's request and dissolved the stop order. Id., at 57. The Supreme Court of Missouri, however, granted the prosecution's motion for transfer of the case to that court and issued a preliminary writ of prohibition. After argument, the court, sitting en banc and by a divided vote, sustained the State's position and made the writ absolute. State ex rel. Westfall v. Mason, 594 S.W.2d 908 (1980). It held that neither the Double Jeopardy Clause, nor the Eighth Amendment, nor the Due Process Clause barred the imposition of the death penalty upon petitioner at his new trial, and that allowing the prosecution to seek capital punishment would not impermissibly chill a defendant's effort to seek redress for any constitutional violation committed at his initial trial.
11
We granted certiorari, 449 U.S. 819, 101 S.Ct. 70, 66 L.Ed.2d 21 (1980),8 in order to consider the important issues raised by petitioner regarding the administration of the death penalty.9
III
12
It is well established that the Double Jeopardy Clause forbids the retrial of a defendant who has been acquitted of the crime charged. United States v. DiFrancesco, 449 U.S. 117, 129-130, 101 S.Ct. 426, 433, 66 L.Ed.2d 328 (1980); Burks v. United States, 437 U.S. 1, 16, 98 S.Ct. 2141, 2149, 57 L.Ed.2d 1 (1978); United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S.Ct. 1349, 1354, 51 L.Ed.2d 642 (1977); Fong Foo v. United States, 369 U.S. 141, 143, 82 S.Ct. 671, 672, 7 L.Ed.2d 629 (1962); Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). This Court, however, has resisted attempts to extend that principle to sentencing. The imposition of a particular sentence usually is not regarded as an "acquittal" of any more severe sentence that could have been imposed. The Court generally has concluded, therefore, that the Double Jeopardy Clause imposes no absolute prohibition against the imposition of a harsher sentence at retrial after a defendant has succeeded in having his original conviction set aside. See North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). See also United States v. DiFrancesco, 449 U.S., at 133, 137-138, 101 S.Ct., at 435, 437-438; Chaffin v. Stynchcombe, 412 U.S. 17, 23-24, 93 S.Ct. 1977, 1981-1982, 36 L.Ed.2d 714 (1973); Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103 (1919).
13
The procedure that resulted in the imposition of the sentence of life imprisonment upon petitioner Bullington at his first trial, however, differs significantly from those employed in any of the Court's cases where the Double Jeopardy Clause has been held inapplicable to sentencing. The jury in this case was not given unbounded discretion to select an appropriate punishment from a wide range authorized by statute. Rather, a separate hearing was required and was held, and the jury was presented both a choice between two alternatives and standards to guide the making of that choice. Nor did the prosecution simply recommend what it felt to be an appropriate punishment. It undertook the burden of establishing certain facts beyond a reasonable doubt in its quest to obtain the harsher of the two alternative verdicts. The presentence hearing resembled and, indeed, in all relevant respects was like the immediately preceding trial on the issue of guilt or innocence. It was itself a trial on the issue of punishment so precisely defined by the Missouri statutes.10
14
In contrast, the sentencing procedures considered in the Court's previous cases did not have the hallmarks of the trial on guilt or innocence. In Pearce, Chaffin and Stroud, there was no separate sentencing proceeding at which the prosecution was required to prove—beyond a reasonable doubt or otherwise additional facts in order to justify the particular sentence. In each of those cases, moreover, the sentencer's discretion was essentially unfettered. In Stroud, no standards had been enacted to guide the jury's discretion.11 In Pearce, the judge had a wide range of punishments from which to choose with no explicit standards imposed to guide him.12 And in Chaffin, the discretion given to the jury was extremely broad. That defendant, convicted in Georgia of robbery, could have been sentenced to death, to life imprisonment, or to a prison term of between 4 and 20 years. 412 U.S., at 18, and n.1, 93 S.Ct., at 1978, and n.1. The statute contained no standards to guide the jury's exercise of its discretion.13
15
In only one prior case, United States v. DiFrancesco, has this Court considered a separate or bifurcated sentencing procedure at which it was necessary for the prosecution to prove additional facts. The federal statute under consideration there, the "dangerous special offender" provision of the Organized Crime Control Act of 1970, 18 U.S.C. §§ 3575 and 3576, requires a separate presentence hearing. The Government must prove the additional fact that the defendant is a "dangerous special offender," as defined in the statute, in order for the court to impose an enhanced sentence. But there are highly pertinent differences between the Missouri procedures controlling the present case and those found constitutional in DiFrancesco. The federal procedures at issue in DiFrancesco include appellate review of a sentence "on the record of the sentencing court," § 3576, not a de novo proceeding that gives the Government the opportunity to convince a second factfinder of its view of the facts.14 Moreover, the choice presented to the federal judge under § 3575 is far broader than that faced by the state jury at the present petitioner's trial. Bullington's Missouri jury was given—and under the State's statutes could be given—only two choices, death or life imprisonment. On the other hand, if the Federal Government proves that a person convicted of a felony is a dangerous special offender, the judge may sentence that person to "an appropriate term not to exceed twenty-five years and not disproportionate in severity to the maximum term otherwise authorized by law for such felony." § 3575(b). Finally, although the statute requires the Government to prove the additional fact that the defendant is a "dangerous special offender," it need do so only by a preponderance of the evidence. Ibid. This stands in contrast to the reasonable-doubt standard of the Missouri statute, the same standard required to be used at the trial on the issue of guilt or innocence. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). The State's use of this standard indicates that, as has been said generally of the criminal case, "the interests of the defendant are of such magnitude that . . . they have been protected by standards of proof designed to exclude as nearly as possible the likelihood of an erroneous judgment. . . . [O]ur society imposes almost the entire risk of error upon itself." Addington v. Texas, 441 U.S. 418, 423-424, 99 S.Ct. 1804, 1808, 60 L.Ed.2d 323 (1979).
IV
16
These procedural differences become important when the underlying rationale of the cases is considered. The State here relies principally upon North Carolina v. Pearce.15 The Court's starting point in that case, 395 U.S., at 719-720, 89 S.Ct., at 2077-2078, was the established rule that there is no double jeopardy bar to retrying a defendant who has succeeded in overturning his conviction. See, e. g., United States v. Tateo, 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964); United States v. Ball, 163 U.S. 662, 672, 16 S.Ct. 1192, 1195, 41 L.Ed. 300 (1896). The Court stated that this rule rests on the premise that the original conviction has been nullified and "the slate wiped clean." 395 U.S., at 721, 89 S.Ct., at 2078. Therefore, if the defendant is convicted again, he constitutionally may be subjected to whatever punishment is lawful, subject only to the limitation that he receive credit for time served.
17
There is an important exception, however, to the rule recognized in Pearce. A defendant may not be retried if he obtains a reversal of his conviction on the ground that the evidence was insufficient to convict. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). The reasons for this exception are relevant here:
18
"[R]eversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its cases. As such, it implies nothing with respect to the guilt or innocence of the defendant. . . .
19
"The same cannot be said when a defendant's conviction has been overturned due to a failure of proof at trial, in which case the prosecution cannot complain of prejudice, for it has been given one fair opportunity to offer whatever proof it can assemble. . . . Since we necessarily accord absolute finality to a jury's verdict of acquittal—no matter how erroneous its decision—it is difficult to conceive how society has any greater interest in retrying a defendant when, on review, it is decided as a matter of law that the jury could not properly have returned a verdict of guilty." Id., at 15-16, 98 S.Ct., at 2149-2150 (emphasis in original).
20
The decision in Burks was foreshadowed by Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). In that case, the defendant had been indicted for first-degree murder, and the trial court instructed the jury that it could convict him either of that crime or of the lesser included offense of second-degree murder. The jury convicted him of second-degree murder, but the conviction was reversed on appeal. The Court held that a retrial on the first-degree murder charge was barred by the Double Jeopardy Clause, because the defendant "was forced to run the gantlet once on that charge and the jury refused to convict him." Id., at 190, 78 S.Ct., at 225. See also Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970).
21
Thus, the "clean slate" rationale recognized in Pearce is inapplicable whenever a jury agrees or an appellate court decides that the prosecution has not proved its case.
22
In the usual sentencing proceeding, however, it is impossible to conclude that a sentence less than the statutory maximum "constitute[s] a decision to the effect that the government has failed to prove its case."16 In the normal process of sentencing, "there are virtually no rules or tests or standards—and thus no issues to resolve. . . ." M. Frankel, Criminal Sentences: Law Without Order 38 (1973). Thus, "[t]he discretion of the judge . . . in [sentencing] matters is virtually free of substantive control or guidance. Where the judge has power to select a term of imprisonment within a range the exercise of that authority is left fairly at large." Kadish, Legal Norm and Discretion in the Police and Sentencing Processes, 75 Harv.L.Rev. 904, 916 (1962).
23
The Court's cases that have considered the role of the Double Jeopardy Clause in sentencing have noted this absence of sentencing standards. In DiFrancesco, for example, we observed: "[A] sentence is characteristically determined in large part on the basis of information, such as the presentence report, developed outside the courtroom. It is purely a judicial determination, and much that goes into it is the result of inquiry that is nonadversary in nature." 449 U.S., at 136-137, 101 S.Ct., at 437. And even if it is the jury that imposes the sentence, "[n]ormally, there would be no way for the jury to place on the record the reasons for its collective sentencing determination. . . ." Chaffin v. Stynchcombe, 412 U.S., at 28, n. 15, 93 S.Ct., at 1983, n. 15.
24
By enacting a capital sentencing procedure that resembles a trial on the issue of guilt or innocence, however, Missouri explicitly requires the jury to determine whether the prosecution has "proved its case." Both Burks and Green, as has been noted, state an exception to the general rule relied upon in North Carolina v. Pearce. That exception is applicable here, and we therefore refrain from extending the rationale of Pearce to the very different facts of the present case. Chief Justice Bardgett, in his dissent from the ruling of the Missouri Supreme Court majority, observed that the sentence of life imprisonment which petitioner received at his first trial meant that "the jury has already acquitted the defendant of whatever was necessary to impose the death sentence." 594 S.W.2d, at 922. We agree.
25
A verdict of acquittal on the issue of guilt or innocence is, of course, absolutely final. The values that underlie this principle, stated for the Court by Justice Black, are equally applicable when a jury has rejected the State's claim that the defendant deserves to die:
26
"The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is 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., at 187-188, 78 S.Ct., at 223-224.
27
See also United States v. DiFrancesco, 449 U.S., at 136, 101 S.Ct., at 437. The "embarrassment, expense and ordeal" and the "anxiety and insecurity" faced by a defendant at the penalty phase of a Missouri capital murder trial surely are at least equivalent to that faced by any defendant at the guilt phase of a criminal trial. The "unacceptably high risk that the [prosecution], with its superior resources, would wear down a defendant," id., at 130, 101 S.Ct., at 433, thereby leading to an erroneously imposed death sentence, would exist if the State were to have a further opportunity to convince a jury to impose the ultimate punishment. Missouri's use of the reasonable-doubt standard indicates that in a capital sentencing proceeding, it is the State, not the defendant, that should bear "almost the entire risk of error." Addington v. Texas, 441 U.S., at 424, 99 S.Ct., at 1808. Given these considerations, our decision today does not at all depend upon the State's announced intention to rely only upon the same aggravating circumstances it sought to prove at petitioner's first trial or upon its statement that it would introduce no new evidence in support of its contention that petitioner deserves the death penalty. Having received "one fair opportunity to offer whatever proof it could assemble," Burks v. United States, 437 U.S., at 16, 98 S.Ct., at 2150, the State is not entitled to another.
V
28
The Court already has held that many of the protections available to a defendant at a criminal trial also are available at a sentencing hearing similar to that required by Missouri in a capital case. See, e. g., Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967) (due process protections such as right to counsel, right to confront witnesses, and right to present favorable evidence are available at hearing at which sentence may be imposed based upon "a new finding of fact . . . that was not an ingredient of the offense charged," id., at 608, 87 S.Ct. 1211). Because the sentencing proceeding at petitioner's first trial was like the trial on the question of guilt or innocence, the protection afforded by the Double Jeopardy Clause to one acquitted by a jury also is available to him, with respect to the death penalty, at his retrial.17 We therefore refrain from extending the reasoning of Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103 (1919), to this very different situation.
29
The judgment of the Supreme Court of Missouri is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion.
30
It is so ordered.
31
Justice POWELL, with whom THE CHIEF JUSTICE, Justice WHITE, and Justice REHNQUIST join, dissenting.
32
This case concerns the force of the Double Jeopardy Clause after a defendant convicted of a crime and sentenced has succeeded in having his conviction reversed. The Court holds that the jury's decision at petitioner's first trial to sentence him to life imprisonment precludes Missouri from asking the jury at petitioner's second trial to sentence him to death. I consider the Court's opinion irreconcilable in principle with the precedents of this Court.
33
* It is well-established law that the Double Jeopardy Clause does not apply to sentencing decisions after retrial with the same force that it applies to redeterminations of guilt or innocence. Since Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103 (1919), it has been settled that a defendant whose conviction is reversed may receive a more severe sentence upon retrial than he received at his first trial. The Court followed this principle in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), where it held that a "corollary of the power to retry a defendant is the power, upon the defendant's reconviction, to impose whatever sentence may be legally authorized, whether or not it is greater than the sentence imposed after the first conviction." Id., at 720, 89 S.Ct., at 2078. In contrast, where the question was whether a defendant could be retried for first-degree murder after the jury at his first trial had found him guilty only of second-degree murder, the Court "regarded the jury's verdict as an implicit acquittal on the charge of first degree murder" and held that the Double Jeopardy Clause therefore barred retrial on that charge. Green v. United States, 355 U.S. 184, 190, 78 S.Ct. 221, 225, 2 L.Ed.2d 199 (1957).
34
Although there is some tension between the Green and Pearce opinions, their holdings are not inconsistent. Both have become landmarks in the law of the Double Jeopardy Clause. The Court has cited each opinion time and time again, and more than once the court has declined to reexamine Pearce. Indeed, its rationale has been reaffirmed in recent cases. United States v. DiFrancesco, 449 U.S. 117, 135-136, n. 14, 101 S.Ct. 426, 436, n. 14, 66 L.Ed.2d 328 (1980); Chaffin v. Stynchcombe, 412 U.S. 17, 24, 93 S.Ct. 1977, 1981, 36 L.Ed.2d 714 (1973). Earlier this Term, the Court stated without qualification that "the difference in result reached in Green and Pearce can be explained only on the grounds that the imposition of sentence does not operate as an implied acquittal of any greater sentence." United States v. DiFrancesco, supra, at 136, n. 14, 101 S.Ct., at 436, n. 14.1 Compare Ante, at 438 ("The imposition of a particular sentence usually is not regarded as an 'acquittal' of any more severe sentence . . . ." (emphasis added)). But today the Court applies Green's principle of "implicit acquittal" to sentencing, despite Pearce and the unqualified statement in DiFrancesco.
II
35
The Court justifies applying the implicit-acquittal principle to the sentencing in this case on the ground that Missouri's death penalty statute establishes certain procedures for the sentencing phase of a capital murder trial.2 In the Court's view, these procedures give the sentencing phase "the hallmarks of the trial on guilt or innocence," Ante, at 439, and require the jury to decide whether the State has proved that the defendant deserves the penalty of death, Ante, at 444. The decision at the first trial to impose life imprisonment, the Court reasons, reflects a decision that the State failed to prove that the defendant deserves capital punishment. According to the Court, that decision implies an "acquittal" of the harsher sentence.
36
Having characterized the jury's decision for life imprisonment as an "acquittal" of the death sentence, the Court recites the classic double jeopardy rationale applicable to retrying the issue of guilt or innocence, Green v. United States, supra, at 187-188, 78 S.Ct., at 223-224, and applies it to the reconsideration of an appropriate sentence for one whose guilt is unquestioned. Ante, at 445-446. It states, without documentation in the record, that the expense, ordeal, and anxiety at a resentencing in a capital murder case are as great as would accompany a redetermination of guilt or innocence. Ante, at 445. It also states that Missouri's second attempt to obtain a death sentence might lead to an erroneously imposed death sentence. Ante, at 445-446. The Court therefore concludes that the Double Jeopardy Clause bars Missouri from again seeking the death penalty against petitioner.
37
This is the first time the Court has held that the Double Jeopardy Clause applies equally to sentencing and to determinations of guilt or innocence. It heretofore has been thought that there is a fundamental difference between the two. Stroud v. United States, supra; North Carolina v. Pearce, supra; Chaffin v. Stynchcombe, supra; United States v. DiFrancesco, supra. I would adhere to these precedents, and think they control this case.
38
Underlying the question of guilt or innocence is an objective truth: the defendant, in fact, did or did not commit the acts constituting the crime charged. From the time an accused is first suspected to the time the decision on guilt or innocence is made, our criminal justice system is designed to enable the trier of fact to discover that truth according to law. But triers of fact can err, and an innocent person can be pronounced guilty. In contrast, the law provides only limited standards for assessing the validity of a sentencing decision. The sentencer's function is not to discover a fact, but to mete out just deserts as he sees them. Absent a mandatory sentence, there is no objective measure by which the sentencer's decision can be deemed correct or erroneous if it is duly made within the authority conferred by the legislature.3
39
In light of this difference in the nature of the decisions, the question in this case is not—as the Court would frame it whether the procedures by which a sentencing decision is made are similar to the procedures by which a decision on guilt or innocence is made. Rather, the question is whether the reasons for considering an acquittal on guilt or innocence as absolutely final apply equally to a sentencing decision imposing less than the most severe sentence authorized by law. I would have thought that the pertinence of this question was clear, and that the answer consistently given in the past could not have escaped the Court. Earlier this Term, in United States v. DiFrancesco, we stated that "[t]here are . . . fundamental distinctions between a sentence and an acquittal, and to fail to recognize them is to ignore the particular significance of an acquittal." 449 U.S., at 133, 101 S.Ct., at 435.
40
The reasons for considering an acquittal on guilt or innocence as absolutely final do not apply equally to a sentencing decision for less than the most severe sentence authorized by law. A retrial of a defendant once found to have been innocent "enhanc[es] the possibility that even though innocent he may be found guilty." Green v. United States, 355 U.S., at 188, 78 S.Ct., at 224. But in Chaffin v. Stynchcombe, 412 U.S., at 25, 93 S.Ct., at 1982, we held that "[t]he possibility of a higher sentence was recognized and accepted [in Pearce ] as a legitimate concomitant of the retrial process." The possibility of a higher sentence is acceptable under the Double Jeopardy Clause, whereas the possibility of error as to guilt or innocence is not, because the second jury's sentencing decision is as "correct" as the first jury's. Similarly, a defendant once found to have been innocent cannot be forced a second time through the ordeal of trial. But when a defendant is found guilty, he must bear the ordeal of being sentenced just as he does the ordeal of serving sentence.
41
In sum, I find wholly unpersuasive the Court's justification for applying the implicit-acquittal principle to sentencing. The Court does not purport to justify its conclusion with the argument that facing the death sentence a second time is more of an ordeal in the legal sense than facing any other sentence a second time. The death sentence, of course, is unlike any other punishment. For that reason, this Court has read the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment to require that States prescribe unique procedural safeguards to protect against capricious or discriminatory impositions of the death sentence. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972); Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (joint opinion). But a death sentence imposed in accord with the strictures of the Eighth Amendment and the Fourteenth Amendment is a lawful sentence, and Missouri provides the requisite procedures. I find no basis under the Double Jeopardy Clause for the Court to single out a sentence which is statutorily authorized, and otherwise may be imposed constitutionally, as nonetheless one that a guilty defendant may not be required to face twice. Petitioner's ordeal upon retrial would not be different in kind from that of the defendants in Chaffin and Stroud, both of whom faced the possibility of the death sentence upon reconviction. Chaffin v. Stynchcombe, supra, at 18-19, 93 S.Ct., at 1978-1979; Stroud v. United States, 251 U.S., at 17-18, 40 S.Ct., at 51-52. The Court today simply disregards the principles established by prior cases.4
III
42
In the course of explaining why the Double Jeopardy Clause does not bar retrial after a reversal for trial error, the Court stated: "Corresponding to the right of an accused to be given a fair trial is the societal interest in punishing one whose guilt is clear after he has obtained such a trial." United States v. Tateo, 377 U.S. 463, 466, 84 S.Ct. 1587, 1589, 12 L.Ed.2d 448 (1964). Missouri has decided that death is an appropriate punishment for one whose guilt of murder with aggravating circumstances is made clear through special procedures. There is no justification in the Constitution for barring Missouri from exacting that punishment unless Missouri's interest in doing so conflicts with constitutionally protected interests of the defendant. The Double Jeopardy Clause does not protect a guilty defendant's interest in avoiding a harsher sentence upon retrial, even the death sentence. I therefore dissent.
1
" . . . nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb. . . ."
2
The definition of capital murder in Missouri is set forth in Mo.Rev.Stat. § 565.001 (1978).
"Any person who unlawfully, willfully, knowingly, deliberately, and with premeditation kills or causes the killing of another human being is guilty of the offense of capital murder."
3
Section 565.008.1 reads:
"Persons convicted of the offense of capital murder shall, if the judge or jury so recommends after complying with the provisions of sections 565.006 and 565.012, be punished by death. If the judge or jury does not recommend the imposition of the death penalty on a finding of guilty of capital murder, the convicted person shall be punished by imprisonment by the division of corrections during his natural life and shall not be eligible for probation or parole until he has served a minimum of fifty years of his sentence."
4
At all relevant times, § 565.006 read in pertinent part:
"1. At the conclusion of all trials upon an indictment or information for capital murder heard by a jury, and after argument of counsel and proper charge from the court, the jury shall retire to consider a verdict of guilty or not guilty without any consideration of punishment, and by their verdict ascertain, whether the defendant is guilty of capital murder, murder in the first degree, murder in the second degree, manslaughter, or is not guilty of any offense. . . .
"2. Where the jury . . . returns a verdict or finding of guilty as provided in subsection 1 of this section, the court shall resume the trial and conduct a presentence hearing before the jury . . . at which time the only issue shall be the determination of the punishment to be imposed. In such hearing, subject to the laws of evidence, the jury . . . shall hear additional evidence in extenuation, mitigation, and aggravation of punishment, including the record of any prior criminal convictions and pleas of guilty or pleas of nolo contendere of the defendant, or the absence of any such prior criminal convictions and pleas. Only such evidence in aggravation as the prosecution has made known to the defendant prior to his trial shall be admissible. The jury . . . shall also hear argument by the defendant or his counsel and the prosecuting attorney regarding the punishment to be imposed. The prosecuting attorney shall open and the defendant shall conclude the argument to the jury. . . . Upon conclusion of the evidence and arguments, the judge shall give the jury appropriate instructions and the jury shall retire to determine the punishment to be imposed. In capital murder cases in which the death penalty may be imposed by a jury . . . the additional procedure provided in section 565.012 shall be followed. The jury . . . shall fix a sentence within the limits prescribed by law. The judge shall impose the sentence fixed by the jury. . . . If the jury cannot, within a reasonable time, agree to the punishment, the judge shall impose sentence within the limits of the law; except that, the judge shall in no instance impose the death penalty when, in cases tried by a jury, the jury cannot agree upon the punishment.
"3. If the trial court is reversed on appeal because of error only in the presentence hearing, the new trial which may be ordered shall apply only to the issue of punishment."
The statute was amended by 1979 Mo. Laws H.B. 251, but the amendment does not affect the present case.
5
Because the petitioner in this case was sentenced by a jury at his first trial, we describe only Missouri's procedure for imposition of the death penalty by a jury.
6
Section 565.012.2 was amended in 1980 to provide two additional specified aggravating circumstances. Those added were:
"(11) The capital murder was committed while the defendant was engaged in the perpetration or in the attempt to perpetrate the felony of rape or forcible rape or the felony of sodomy or forcible sodomy;
"(12) The capital murder was committed by the defendant for the purpose of preventing the person killed from testifying in any judicial proceeding." Mo.Rev.Stat. §§ 565.012.2(11) and (12) (Supp.1980).
7
Petitioner also was charged with the state crimes of kidnaping, armed criminal action, burglary, and flourishing a dangerous and deadly weapon. At his trial, petitioner was found guilty of all these charges.
8
Although further proceedings are to take place in state court, the judgment rejecting petitioner's double jeopardy claim is "final" within the meaning of the jurisdictional statute, 28 U.S.C. § 1257. Harris v. Washington, 404 U.S. 55, 92 S.Ct. 183, 30 L.Ed.2d 212 (1971). See Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977).
9
Subsequent to this Court's decisions in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), courts of at least two States have concluded that a defendant originally sentenced to life imprisonment may not be sentenced to death upon retrial after reversal of his original conviction. The Texas Court of Criminal Appeals has relied upon this Court's cases construing the Double Jeopardy Clause. Sanne v. State, 609 S.W.2d 762, 766-767 (1980); Brasfield v. State, 600 S.W.2d 288, 298 (1980). The Supreme Court of Georgia has concluded that the imposition of a death sentence in these circumstances would violate the state-law requirement, Ga. Code § 27-2537(c)(3), that the sentence not be " 'excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.' " Ward v. State, 239 Ga. 205, 208-209, 236 S.E.2d 365, 368 (1977).
10
At the statutorily prescribed presentence hearing, counsel make opening statements, testimony is taken, evidence is introduced, the jury is instructed, and final arguments are made. The jury then deliberates and returns its formal punishment verdict. § 565.006.2. See n.4, supra. All these steps were taken at petitioner's presentence hearing following his first trial.
We think it not without some significance that the pertinent Missouri statute itself speaks specifically of the presentence hearing in terms of a continuing "trial." Section 565.006.2 states that after the verdict of guilty of capital murder is returned, "the court shall resume the trial and conduct a presentence hearing." (Emphasis added.)
11
In Stroud, the relevant statute provided: "Every person guilty of murder in the first degree shall suffer death," but "the jury may qualify their verdict by adding thereto 'without capital punishment;' and whenever the jury shall return a verdict qualified as aforesaid, the person convicted shall be sentenced to imprisonment for life." Act of Mar. 4, 1909, §§ 275, 330, 35 Stat. 1143, 1152, codified currently as 18 U.S.C. § 1111(b).
At Stroud's retrial, the court essentially repeated the language of this statute to the jury, giving it no further guidance as to the appropriate penalty. Record in Stroud v. United States, O. T. 1919, No. 276, p. 472. At the previous trial, the judge had told the jury that he would not "pretend to tell you the various considerations that come into determining that question [of the proper sentence]." Record in Stroud v. United States, O. T. 1917, No. 694, p. 177.
12
Pearce was convicted of assault with intent to commit rape, a state crime punishable by a prison term of between 1 and 15 years. N. C. Gen. Stat. § 14-22 (1969), repealed by 1979 N. C. Sess. Laws, ch. 682, § 7, and replaced.
13
In discussing the usual attributes of jury sentencing, the Court in Chaffin observed: "Normally, there would be no way for a jury to place on the record the reasons for its collective sentencing determination, and ordinarily the resentencing jury would not be informed of any conduct of the accused unless relevant to the question of guilt." 412 U.S., at 28, n.15, 93 S.Ct., at 1983, n.15. This starkly illustrates the significant difference between the sentencing procedure in that case and the procedure now required by Missouri in a capital murder case.
14
The statute authorizes "review of whether the procedure employed was lawful, the findings made were clearly erroneous, or the sentencing court's discretion was abused." 18 U.S.C. § 3576.
15
The other cases that concern the application of the Double Jeopardy Clause to sentencing do not add significantly to the State's argument. Chaffin relies primarily upon Pearce. See 412 U.S., at 23-24. Stroud states only that "[t]he fact that the jury may thus mitigate the punishment to imprisonment for life did not render the conviction less than one for first degree murder." 251 U.S., at 18. Stroud's jury was not required to find any facts in addition to those necessary for a conviction for first-degree murder in order to sentence him to death.
DiFrancesco relies upon "the history of sentencing practices, . . . the pertinent rulings of this Court, [and] considerations of double jeopardy policy. . . ." 449 U.S., at 132, 101 S.Ct., at 435. The history of sentencing practices is of little assistance to Missouri in this case, since the sentencing procedures for capital cases instituted after the decision in Furman are unique. As we see below, considerations of double jeopardy policy favor petitioner in this case, rather than the State. Missouri, therefore, can rely only upon DiFrancesco's discussion of the Court's prior cases a discussion that relies chiefly upon Pearce. See 449 U.S., at 134-136, 101 S.Ct., at 436-437.
16
"Sentencing and parole release decisions in this country have largely been left to the unfettered discretion of the officials involved. Legislatures have traditionally set high maximum penalties within which judges must choose specific sentences, but generally have provided little guidance for the exercise of this choice. Although the purposes of sentencing have often been defined as including deterrence, retribution, incapacitation, rehabilitation, and community condemnation to maintain respect for law, legislatures have been silent regarding which purposes are primary and how conflicts among the purposes are to be resolved. For example, federal law currently requires merely that in determining a sentence, the court consider 'in its opinion the ends of justice and best interest of the public.' [18 U.S.C. § 4205(b).]
"In effect, sentencing policymaking has traditionally been delegated to a multitude of independent judges to be exercised in the context of individual cases. There has been no attempt to separate policymaking from individual sentencing determinations. Normally, some type of presentence investigation is available which attempts to provide an informational basis for an intelligent and 'individualized' sentencing decision. Yet, which factors should be considered, under what circumstances, and how they are to be weighted are decisions left solely to the unfettered discretion of the individual decisionmakers." Hoffman & Stover, Reform in the Determination of Prison Terms: Equity, Determinacy, and the Parole Release Function, 7 Hofstra L.Rev. 89, 96 (1978) (footnotes omitted).
17
Because of our conclusion on the Double Jeopardy Clause issue, we have no occasion to address petitioner's claims under the Sixth, Eighth, and Fourteenth Amendments.
1
In Pearce, the Court stated: "The Court's decision in Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199, is of no applicability to the present problem. The Green decision was based upon the double jeopardy provision's guarantee against retrial for an offense of which the defendant was acquitted." 395 U.S., at 720, n. 16, 89 S.Ct., at 2078, n. 16 (emphasis in original).
2
In the Court's view, these procedures distinguish this case from United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980), Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973), North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), and Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103 (1919), where the sentencing decisions were not made pursuant to similar procedures. No one questions that these procedures, applicable in capital cases, are different. But analytically the difference is immaterial for purposes of the Double Jeopardy Clause. See infra, at 450.
3
Of course, a sentence imposed upon one who did not commit the crime is "erroneous," but the error inheres in the decision on guilt or innocence, not in the sentencing decision. Also, a sentence may be called "erroneous" if it is grossly disproportionate to the severity of the crime committed. But in that event, the sentence is "cruel and unusual" in violation of the Eighth Amendment. Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910).
4
I would have trouble concurring in the Court's judgment even if I agreed with the Court that the procedures of the Missouri death penalty statute distinguish this case from Pearce, Chaffin, and Stroud. In the Court's view, the first jury's decision to sentence petitioner to life imprisonment rather than death reveals that the State failed to "prove its case" that petitioner deserved capital punishment. On this premise the Court concludes that the principle of Green and Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), bars a second attempt by the State to secure a death sentence.
Under the Missouri statute, Mo.Rev.Stat. § 565.012 (1978), the "case" that the State had to prove was that petitioner committed the murder under circumstances defined as "aggravating" and that these circumstances warranted the imposition of the death penalty. But the trial court expressly instructed the jury that it could choose life imprisonment rather than death even if it found beyond a reasonable doubt that the State had proved the existence and gravity of such circumstances. See Ante, at 434-435. Thus, the jury's decision for life imprisonment rather than death does not necessarily mean that the State adduced insufficient evidence. To be sure, an acquittal on the question of guilt or innocence does not necessarily mean that the State adduced insufficient evidence, and yet such acquittals are final. But juries instructed on the question of guilt or innocence are not told that they can ignore the State's evidence. Where the jury is so instructed, as in this case, there is significantly less reason to assume that the State failed to prove its case. Accordingly, there is less reason to consider a second attempt to obtain the death penalty an unfair " 'second bite at the apple.' " Burks v. United States, supra, at 17, 98 S.Ct., at 2150.
| 01
|
68 L.Ed.2d 454
101 S.Ct. 1931
451 U.S. 571
UNITED STATES, Petitioner,v.Elwood SWANK et al.
No. 79-1515.
Argued Dec. 9, 1980.
Decided May 18, 1981.
Syllabus
Held: The "percentage depletion" allowance under §§ 611 and 613 of the Internal Revenue Code of 1954—whereby the owner of an economic interest in a mineral deposit is allowed a special deduction from taxable income measured by a percentage of his gross income derived from exhaustion of the mineral—may not be denied to respondent lessees of underground coal who had the right to extract and sell the coal at prices fixed by them, paying a fixed royalty per ton to their lessors, merely because their leases were subject to termination by the lessor on 30 days' notice. Pp. 576-585.
(a) The deduction provides a special incentive for engaging in the mining business that goes well beyond a purpose of merely allowing the owner of a wasting asset to recoup the capital invested in that asset, and hence eligibility for the deduction is determined not by the amount of the capital investment but by the mine operator's "economic interest" in the coal. The question here is whether the deduction for the asset depleted by respondents will be received by anyone, since the tax consequences of the lessors' receipt of royalties will not be affected, either favorably or unfavorably, by the decision. Pp. 576-579.
(b) Under their leases, respondents had a legal interest in the coal both before and after it was mined, and were free to sell the coal at whatever price the market could bear. Thus, they had a depletable "economic interest" in the coal deposits, not merely an "economic advantage." Parsons v. Smith, 359 U.S. 215, 79 S.Ct. 656, 3 L.Ed.2d 747, and Paragon Jewel Coal Co. v. Commissioner, 380 U.S. 624, 85 S.Ct. 1207, 14 L.Ed.2d 116, distinguished. Nor does the right to terminate give the lessor the only significant economic interest in the coal as a matter of "practical economics." It is by no means certain that an increase in the price of coal will induce a lessor to terminate satisfactory business relationship, and it would be unfair to deny a lessee a tax benefit that is available to competitors simply because he accepted the business risk of termination that his competitors were able to avoid when they negotiated their mining leases. Moreover, the Government has not suggested any rational basis for linking the right to a depletion deduction to the period of time that the taxpayer operates a mine. Thus, the mere existence of the lessors' unexercised right to terminate respondents' leases did not destroy their economic interest in the leased mineral deposits. Pp. 579-585.
221 Ct.Cl. 246, 602 F.2d 348, affirmed.
Stuart A. Smith, Washington, D. C., for petitioner.
LeRoy Katz, Bluefield, W. Va., for respondents.
Justice STEVENS delivered the opinion of the Court.
1
The owner of an economic interest in a mineral deposit is allowed a special deduction from taxable income measured by a percentage of his gross income derived from exhaustion of the mineral. This deduction, codified in §§ 611 and 613 of the Internal Revenue Code of 1954, is designed to compensate such owners for the exhaustion of their interest in a wasting asset, the mineral in place.1 This case presents the question whether that "percentage depletion" allowance must be denied to otherwise eligible lessees of underground coal because their leases were subject to termination by the lessor on 30 days' notice.
2
This question arises out of three different tax refund suits that were decided by the Court of Claims in a single opinion. 221 Ct.Cl. 246, 602 F.2d 348. The controlling facts are essentially the same in all three cases. Each taxpayer operated a coal mine pursuant to a written lease; in exchange for a fixed royalty per ton, the lessor granted the lessee the right to extract coal and to sell it at prices determined by the lessee. Each lease contained a clause permitting the lessor to terminate the lease on 30 days' notice. In fact, however, none of the lessors exercised that right; each lessee mined a substantial tonnage of coal during an uninterrupted operation that continued for several years. The proceeds from the sale of the coal represented the only revenue from which the lessees recovered the royalties paid to the lessors.
3
In each of the cases, certain additional facts help to illuminate the issue. In the Black Hawk2 case the lease was to continue "during the term commencing on the first day of March, 1964, and terminating when LESSEE shall have exhausted all of The Feds Creek (or Clintwood) Seam of coal, . . . or until said tenancy shall be earlier terminated. . . ." App. 77a. The lease required Black Hawk to pay a royalty of 25 cents per ton of coal or $5,000 per year, whichever was larger. Id., at 77a-78a. In addition, the lease required Black Hawk to pay all taxes on the underground coal, as well as the taxes on its plant and equipment and on mined coal. Id., at 79a. Black Hawk paid independent contractors a fixed price per ton to remove the coal, and Black Hawk was free to sell the coal to any party at whatever price it could obtain. Black Hawk mined the seam to exhaustion, operating continuously under the lease for 13 years. Id., at 70a-71a. The Government stipulated that Black Hawk was the sole claimant to the percentage depletion deduction; no claim had been made by the lessor or by any independent mining contractor employed by Black Hawk. Id., at 71a.
4
The Swank case involves two separate leases executed by Swank and Northumberland County, Pa., pursuant to which Swank operated mines on land owned by the county. The first lease, a deep-mining lease executed in 1964, was terminated in 1968 after a mountain slide forced Swank to close the mine. Id., at 52a. The second, a strip-mining lease executed in 1966, was still being operated by Swank's successor in interest in 1977 when the case was tried. During the tax years in dispute, Swank's royalty payments to the county at the rate of 35 cents per ton amounted to $7,545.10 in 1966 and $6,854.05 in 1967. App. 53a. The deduction for depletion, which was based on the gross income received from the sale of the coal, was significantly larger.3 The record also indicates that Swank invested significant sums in the construction of access roads, the acquisition of equipment, and the purchase and improvement of a "tipple"—the surface structure that is used to remove slate and rock from the mined product and to sort the coal into specific sizes for marketing. Id., at 55a-56a.
5
The Bull Run4 case involves a 5-year lease executed in 1967 and renewed in 1972. Id., at 90a-91a. Unlike the leases in the other cases, it gave the lessor a right of first purchase if it was willing to meet the lessee's price, and in the tax year in dispute the lessor did purchase all of the coal mined by Bull Run. 221 Ct.Cl., at 249, n. 4, 602 F.2d, at 350, n. 4. The lease did not, however, limit the lessee's right to set selling prices or to sell to others who were willing to pay more than the lessor. Ibid. Like the lease in Black Hawk, the lease provided for a royalty of 25 cents per ton. App. 91a. As is also true in both Black Hawk and Swank, there is no suggestion that any other party has made any claim to any part of the percentage depletion allowance at issue in this case.5 See id., at 92a. The Bull Run lease, like the others, contained a provision giving the lessor the right to cancel on 30 days written notice.6
6
* Since 1913 the Internal Revenue Code or its predecessors have provided special deductions for depletion of wasting assets. We have explained these deductions as resting "on the theory that the extraction of minerals gradually exhausts the capital investment in the mineral deposit," and therefore the depletion allowance permits "a recoupment of the owner's capital investment in the minerals so that when the minerals are exhausted, the owner's capital is unimpaired." Commissioner v. Southwest Exploration Co., 350 U.S. 308, 312, 76 S.Ct. 395, 397, 100 L.Ed. 347.7 The percentage depletion allowance, however, is clearly more than a method of enabling the operator of a coal mine to recover the amount he has paid for the unmined coal. Because the deduction is computed as a percentage of his gross income from the mining operation and is not computed with reference to the operator's investment, it provides a special incentive for engaging in this line of business that goes well beyond a purpose of merely allowing the owner of a wasting asset to recoup the capital invested in that asset.8 As the Court said in Southwest Exploration Co., supra:
7
"The present allowance, however, bears little relationship to the capital investment, and the taxpayer is not limited to a recoupment on his original investment. The allowance continues so long as minerals are extracted, and even though no money was actually invested in the deposit. The depletion allowance in the Internal Revenue Code of 1939 [the forerunner of the present statute] is solely a matter of congressional grace. . . ." 350 U.S., at 312, 76 S.Ct., at 397.9
8
Hence eligibility for the deduction is determined not by the amount of the capital investment but by the mine operator's "economic interest" in the coal.10
9
A recognition that the percentage depletion allowance is more than merely a recovery of the cost of the unmined coal is especially significant in this case. The question here is whether a deduction for the asset depleted by respondents will be received by anyone.11 The tax consequences of the lessors' receipt of royalties will not be affected, either favorably or unfavorably, by our decision in this case.12 The Government therefore is not contending that the wrong party is claiming the percentage depletion allowance. Rather, the Government takes the position that no such deduction shall be allowed to any party if the legal interest of the lessee-operator is subject to cancellation on short notice.13
II
10
The language of the controlling statute makes no reference to the minimum duration of the interest in mineral deposits on which a taxpayer may base his claim to percentage depletion.14 The relevant Treasury Regulation merely requires the taxpayer to have an "economic interest" in the unmined coal.15 That term is broadly defined by regulation as follows:
11
"(b) Economic interest. (1) Annual depletion deductions are allowed only to the owner of an economic interest in mineral deposits or standing timber. An economic interest is possessed in every case in which the taxpayer has acquired by investment any interest in mineral in place or standing timber and secures, by any form of legal relationship, income derived from the extraction of the mineral or severance of the timber, to which he must look for a return of his capital."16
12
The Government's argument that the termination clause deprived the lessees of an economic interest is advanced in two forms. First, the Government notes that the regulation distinguishes a mere "economic advantage"17 from a depletable "economic interest," and argues that two cases—Parsons v. Smith, 359 U.S. 215, 79 S.Ct. 656, 3 L.Ed.2d 747, and Paragon Jewel Coal Co. v. Commissioner, 380 U.S. 624, 85 S.Ct. 1207, 14 L.Ed.2d 116 in which the Court concluded that mining contractors had only an "economic advantage" rather than an "economic interest" in coal deposits—support the conclusion that these lessees also had a mere "economic advantage." Second, the Government argues as a matter of "practical economics" that the right to terminate gives the lessor the only significant economic interest in the coal. Neither submission is persuasive.
13
The Parsons opinion covered two consolidated cases with similar facts. In each the owner of coal-bearing land entered into a contract with the taxpayer providing that the taxpayer would strip-mine the coal and deliver it to the owner for a fixed price per ton. Neither of the contracts purported to give the mining contractor any interest in the coal, either before or after it was mined, or any right to sell it to third parties. See 359 U.S., at 216-219, 79 S.Ct., at 658-659. The contracts were terminable on short notice and terminability was one of the seven factors the Court listed to support its conclusion that the independent contractors did not have an economic interest in the coal.18 It is perfectly clear, however, that the Court would have reached the same conclusion if that factor had not been present.
14
The facts in the Paragon Jewel case were much like those in Parsons, except that the mining contractors dealt with lessees instead of the owners of the underground coal. As in Parsons, the contractors agreed to mine the coal at their own expense and deliver it to Paragon's tipple at a fixed fee per ton.19 The contractors had no control over the coal after delivery to Paragon, had no responsibility for its sale or in fixing its price, and did not even know the price at which Paragon sold the coal. 380 U.S., at 628, 85 S.Ct., at 1209. The Court stated that the Commissioner took the position that
15
"only a taxpayer with a legally enforceable right to share in the value of a mineral deposit has a depletable capital or economic interest in that deposit and the contract miners in this case had no such interest in the unmined coal." Id., at 627, 85 S.Ct., at 1208.
16
The Court agreed that the miners did not have an economic interest in the coal:
17
"Here, Paragon was bound to pay the posted fee regardless of the condition of the market at the time of the particular delivery and thus the contract miners did not look to the sale of the coal for a return of their investment, but looked solely to Paragon to abide by its covenant." Id., at 635, 85 S.Ct., at 1212.
18
Thus in Paragon Jewel Coal Co., as in Parsons, the terminability of the agreements was not the dispositive factor,20 and neither case answers the narrow question before us in this case.21
19
The contrast between the interest of the contractors in Parsons and Paragon Jewel and the lessees in these cases is stark. Whereas those contractors never acquired any legal interest in the coal, the lessees in these cases had a legal interest in the mineral both before and after it was mined, and were free to sell the coal at whatever price the market could bear. Indeed, the Government does not contend that, absent the termination clauses, the lessees would not have had an economic interest in the coal. In contrast, it seems clear that the contract miners' interest in the Parsons and Paragon Jewel cases would have been insufficient even if their agreements had been for a fixed term.
20
The Government, however, does argue that the lessors' right to terminate the leases alone made the taxpayers' interest so tenuous as to defeat a claim to the percentage depletion deduction.22 According to the Government, as a matter of "practical economics" an increase in the price of the minerals will "assuredly" lead to an exercise of the lessor's right to terminate; accordingly, the only significant economic interest is controlled by the lessor. We find this theoretical argument unpersuasive for at least three reasons.
21
First, the royalty rate is a relatively small element of the mine operator's total cost.23 Therefore, even if the price of coal increases, the lessor cannot be certain that he will be able to negotiate a more favorable lease with another lessee. Moreover, the quantity of coal extracted by the operator each year may be as important in providing royalties for the lessor as the rate per ton. Purely as a theoretical matter, it therefore is by no means certain that an increase in the price of coal will induce a lessor to terminate a satisfactory business relationship. Indeed, the only evidence in the record—the history of three different operations that were uninterrupted for many years—tends to belie the Government's entire argument.24
22
Second, from the standpoint of the taxpayer who did in fact conduct a prolonged and continuous operation, it would seem rather unfair to deny him a tax benefit that is available to his competitors simply because he accepted a business risk—the risk of termination—that his competitors were able to avoid when they negotiated their mining leases. It is unlikely that Congress intended to limit the availability of the percentage depletion deduction to the mining operations with the greatest bargaining power.
23
Third, and most important, the Government has not suggested any rational basis for linking the right to a depletion deduction to the period of time that the taxpayer operates a mine. If the authorization of a special tax benefit for mining a seam of coal to exhaustion is sound policy, that policy would seem equally sound whether the entire operation is conducted by one taxpayer over a prolonged period or by a series of taxpayers operating for successive shorter periods. The Government has suggested no reason why the efficient removal of a great quantity of coal in less than 30 days should have different tax consequences than the slower removal of the same quantity over the prolonged period.25
24
The Court of Claims correctly concluded that the mere existence of the lessors' unexercised right to terminate these leases did not destroy the taxpayers' economic interest in the leased mineral deposits.
25
The judgment is affirmed.
26
Justice WHITE, with whom Justice STEWART joins, dissenting.
27
The Court today rejects the Internal Revenue Service's interpretation of §§ 611 and 613 and the applicable regulation because it has not "suggested any rational basis for linking the right to a depletion deduction to the period of time that the taxpayer operates a mine." Ante, at 585. The Court suggests that depletion tax policy should be the same "whether the entire operation is conducted by one taxpayer over a prolonged period or by a series of taxpayers operating for successive shorter periods." Ibid. My disagreement with the Court's opinion is simple. It is not our function to speculate on who deserves an allowance; our duty is to determine if the Service's interpretation is a reasonable one. Since in my view the construction of the statutory provisions and the attendant regulation is clearly acceptable, I dissent.
28
Congress has provided for a depletion allowance in recognition of the fact that mineral deposits are wasting assets, in order to compensate "the owner for the part used up in production." Helvering v. Bankline Oil Co., 303 U.S. 362, 366, 58 S.Ct. 616, 617, 82 L.Ed. 897 (1938). The theoretical justification for the allowance is that it will permit an owner to recoup his capital investment in the minerals as the resources are being exhausted. Commissioner v. Southwest Exploration Co., 350 U.S. 308, 312, 76 S.Ct. 395, 397, 100 L.Ed. 347 (1956); United States v. Cannelton Sewer Pipe Co., 364 U.S. 76, 81, 80 S.Ct. 1581, 1584, 4 L.Ed.2d 1581 (1960). The fact that the manner of calculating the depletion allowance has changed and is not that closely tied to the underlying justification of recouping a party's capital investment is immaterial since the method of calculating the deduction is a matter of convenience and "in no way alter[s] the fundamental theory of the allowance." Bankline Oil, supra, at 367, 58 S.Ct., at 618. In essence, therefore, any "right" to a depletion allowance under the statute is properly predicated on some indication of capital investment in the minerals in place.
29
From the earliest cases dealing with the statutory predecessors of § 611 and § 613, this Court has recognized the "capital investment" theory underlying the depletion allowance. In Palmer v. Bender, 287 U.S. 551, 557, 53 S.Ct. 225, 226, 77 L.Ed. 489 (1933), the Court stated:
30
"The language of the statute is broad enough to provide, at least, for every case in which the taxpayer has acquired, by investment, any interest in the oil in place, and secures, by any form of legal relationship, income derived from the extraction of the oil, to which he must look for a return of his capital." (Emphasis supplied.)
31
Other cases have expressed the capital investment theory in somewhat different terms by noting that there exists a critical distinction between possessing an economic interest in the minerals in place, which entitles a party to the depletion allowance, and possessing a mere economic advantage, which does not entitle one to the allowance. See Bankline Oil, supra, at 367, 58 S.Ct., at 618 (" 'economic interest' is not to be taken as embracing a mere economic advantage derived from production, through a contractual relation to the owner, by one who has no capital investment in the mineral deposit"); Kirby Petroleum Co. v. Commissioner, 326 U.S. 599, 603, 66 S.Ct. 409, 411, 90 L.Ed. 343 (1946).
32
It is true, as recognized by the Court, that the statute does not specifically refer to a minimum duration of a leasehold to qualify a lessee to an allowance. But it is also true that the Service has promulgated a regulation which has fully adopted the "economic advantage-interest" distinction noted in the Court's earlier opinions:
33
"(b) Economic interest. (1) Annual depletion deductions are allowed only to the owner of an economic interest in mineral deposits or standing timber. An economic interest is possessed in every case in which the taxpayer has acquired by investment any interest in mineral in place or standing timber and secures, by any form of legal relationship, income derived from the extraction of the mineral or severance of the timber, to which he must look for a return of his capital. . . . A person who has no capital investment in the mineral deposit . . . does not possess an economic interest merely because through a contractual relation he possesses a mere economic or pecuniary advantage derived from production. For example, an agreement between the owner of an economic interest and another entitling the latter to purchase or process the product upon production or entitling the latter to compensation for extraction or cutting does not convey a depletable economic interest. . . ." Treas.Reg. § 1.611-1(b), 26 CFR § 1.611-1(b) (1980) (emphasis supplied).
34
Under the Court's prior cases, the regulation's explicit acceptance of the economic-interest standard is proper and must be afforded substantial weight by a reviewing court. A regulation adopted pursuant to a statute must be given effect if there is a reasonable basis for the interpretation given by the Commissioner. See Fulman v. United States, 434 U.S. 528, 533, 98 S.Ct. 841, 845, 55 L.Ed.2d 1 (1978); Bingler v. Johnson, 394 U.S. 741, 749-750, 89 S.Ct. 1439, 1445, 22 L.Ed.2d 695 (1969); Commissioner v. South Texas Lumber Co., 333 U.S. 496, 501, 68 S.Ct. 695, 698, 92 L.Ed. 831 (1948). Here, imposing an economic-interest requirement for any entitlement to a depletion allowance is clearly reasonable given that our prior cases have indicated that the statute encompassed such a requirement. Indeed, earlier versions of the same regulation have been expressly accepted and applied by the Court. See, e. g., Paragon Jewel Coal Co. v. Commissioner, 380 U.S. 624, 632, 85 S.Ct. 1207, 1211, 14 L.Ed.2d 116 (1965).
35
Furthermore, although the term "economic interest" is not self-defining, the Service has the authority and the responsibility to interpret and apply the economic-interest standard contained in its own regulation. It has done so through various interpretative decisions and has concluded in the exercise of its expertise that the duration of the leasehold interest is a critical factor in determining a lessee's right to a depletion allowance under the statute.1 A coal mining company's interest in the coal lands may run from a straightforward fee simple ownership to a variety of lesser interests down to a nonexclusive right to extract coal as a tenant at will. The Service is of the view that a taxpayer operating pursuant to a lease must be assured of a right to continue mining for a reasonably long period of time. Accordingly, the Service believes that a lease which is revocable on short notice does not create a sufficient economic interest to justify the taking of a depletion allowance.
36
The Service's interpretation of its own regulation is entitled to deference. See Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 566, 100 S.Ct. 790, 797, 63 L.Ed.2d 22 (1980) ("[a]n agency's construction of its own regulations has been regarded as especially due [considerable respect]"); Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 413-414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1701 (1945) (courts must look to "administrative construction of the regulation if the meaning of the words used is in doubt" and give it "controlling weight unless it is plainly erroneous or inconsistent with the regulation"). See also Fribourg Navigation Co. v. Commissioner, 383 U.S. 272, 300, 86 S.Ct. 862, 877, 15 L.Ed.2d 751 (1966) (WHITE, J., dissenting) (given that Congress gave to "the Secretary of the Treasury or his delegate, not to this Court, the primary responsibility of determining what constitutes a 'reasonable' allowance for depreciation," courts should affirm the Commissioner's position when he "adopts a rational position that is consistent with the purpose behind the depreciation deduction, congressional intent, and the language of the statute and interpretative Treasury Regulations"). Of course, Revenue Rulings and other interpretative documents do not have the same force as Treasury Regulations. But this fact does not mean that the consistent interpretation of the Service may be disregarded because the Court feels another interpretation is more reasonable, especially in cases like the present where the interpretation involves the application of terms expressly used in the regulation. Indeed, in National Muffler Dealers Assn. v. United States, 440 U.S. 472, 99 S.Ct. 1304, 59 L.Ed.2d 519 (1979), the Court afforded substantial deference to the Service's interpretation of a phrase in a regulation. Under the relevant regulation, certain tax advantages were made dependent on whether a particular activity was in a "line of business." Like the "economic interest concept" involved in this case, the meaning of "line of business" was open to different interpretations. The Commissioner, as expressed in a variety of Revenue Rulings, see id., at 483-484, 99 S.Ct., at 1310, had defined "line of business" in a narrow fashion. The Court upheld the administrative interpretation of the "line of business" concept, and stated:
37
"In short, while the Commissioner's reading of § 501(c)(6) perhaps is not the only possible one, it does bear a fair relationship to the language of the statute, it reflects the views of those who sought its enactment, and it matches the purpose they articulated. It evolved as the Commissioner administered the statute and attempted to give to a new phrase a content that would reflect congressional design. The regulation has stood for 50 years, and the Commissioner infrequently but consistently has interpreted it to exclude an organization like the Association that is not industrywide. The Commissioner's view therefore merits serious deference." Id., at 484, 99 S.Ct., at 1310 (emphasis supplied).
38
In my view, the posture of the present case is identical to that of National Muffler. Here, the acknowledged standard of an economic interest contained in the regulation has been interpreted by the Service to require a lessee to possess a lease which is not terminable at will on short notice. This consistent interpretation of the applicable regulation is entitled to deference, which the Court today chooses not to give it. It is also significant to note that this interpretation has also been accepted and applied by the majority of the lower courts that have considered the question.2
39
The Service's concern with the nature of the underlying lease in determining whether an economic interest exists is also reasonable in light of our prior cases. In this regard, Parsons v. Smith, 359 U.S. 215, 79 S.Ct. 656, 3 L.Ed.2d 747 (1959), and Paragon Jewel Coal Co. v. Commissioner, 380 U.S. 624, 85 S.Ct. 1207, 14 L.Ed.2d 116 (1965), provide two examples suggesting that the duration of a leasehold interest is an important factor in determining whether an economic interest exists. In Parsons, the Court noted that the interest asserted by the mining contractors rested entirely on the contracts. The Court found that the mining contracts did not entitle them to a depletion allowance since the contracts "were completely terminable without cause on short notice." 359 U.S., at 224, 79 S.Ct., at 662. In Paragon Jewel, a lessee made agreements with various companies to mine the coal. The agreements were silent regarding termination and were apparently for an indefinite period. The contractors were under no obligation to mine any specific amount of coal and were not given the right to mine any area to exhaustion. The Court held that the mining companies had no right to receive a depletion allowance.
40
None of the reasons forwarded by the Court for rejecting the Service's view is persuasive. The fact that respondents did in fact mine to exhaustion is irrelevant to a determination of the legal rights underlying the leasehold. Indeed, the right to mine to exhaustion, without anything more, "does not constitute an economic interest under Parsons, but is 'a mere economic advantage derived from production, through a contractual relation to the owner, by one who has no capital investment in the mineral deposit.' " Paragon Jewel, supra, at 634-635, 85 S.Ct., at 1212 (quoting Bankline Oil, 303 U.S., at 367, 58 S.Ct., at 618). Both Paragon Jewel and Parsons also make clear that the fact of coal mining itself, regardless how great the cost of the equipment or structures required to mine the coal, is irrelevant to the determination whether a mining company is entitled to a depletion allowance. The costs of mining, like the costs of doing any business, are deductible as business expenses or are depreciable expenses under other parts of the Code, and do not themselves serve to create an economic interest in the minerals in place. Paragon Jewel, supra, at 630-631, 85 S.Ct., at 1210-1211; Parsons, supra, at 224-225, 79 S.Ct., at 662-663.3
41
In essence, the Court argues that because respondents own the coal and sell it on the open market, they must have an interest in the mineral in place. Accordingly, so the argument goes, they are entitled to a depletion allowance because they were "at risk" with respect to the market. To be sure, neither Parsons nor Paragon Jewel involved a situation where the mining concern sold in the open market. But obviously, if the relationship to the market was the sole factor of importance, then the opinions in those two cases could have been drastically simplified. The Court could have stated that the marketing system, in and of itself, was such as to preclude the taking of the depletion allowance. This the Court did not do, and I find it peculiar that the Court today chooses to rewrite those cases in light of what it determines to be the more important factor. Indeed, the Court's focus on the marketing scheme for determining whether a depletion allowance should be permitted is far less sensible than the Service's duration-of-the-lease requirement. Market conditions may change, and drastic changes could predictably result in the leases being cancelled. A company with an assured right to mine the coal for a term is not at the mercy of the lessor. Respondents had no such right and their reliance on the market for economic return on their investment is therefore illusory since it is dependent on the lessor's willingness to permit continued extraction of the coal. The fact that in these particular cases this did not happen is beside the point. What matters is that respondents had absolutely no legal right to mine coal beyond the 30-day period provided in the leases. In this light, the Service was well within bounds in concluding that they had not demonstrated an economic interest in the mineral in place.
42
Of course, the question of what constitutes an economic interest is susceptible to differing interpretations. A 1-day lease would clearly not give the mining company any reasonable expectation of economic interest in the minerals in place. Perhaps equally clear is the fact that such an economic interest would be created by a long-term lease where the lessee has a guaranteed right to mine an area to exhaustion. In the grey area in between, reasonable minds could differ on the nature of the interests possessed. In my mind, the Service has reasonably interpreted the acknowledged and accepted distinction between economic interest and economic advantage by focusing on the duration of the leasehold interest. In applying the economic-interest requirement, the Service has reasonably insisted upon some enforceable expectation of continuity in mining rights. It may well be that the Service could have concluded otherwise in the present cases. The point, however, is that the Service believes that a lease which is terminable on 30 days' notice without cause is not long enough to create an economic interest. Because I believe that the Service's long-held view, accepted by most lower courts, can hardly be considered to be irrational. I dissent from the Court's opinion which is nothing more than a substitution of what it deems meet and proper for the wholly reasonable views of the Internal Revenue Service as to the meaning of its own regulation and of the statutory provisions. It is also plain enough to see that with the owner recovering his investment tax-free, allowing depletion to these respondents with no more than an ephemeral interest in the coal is precisely the kind of an unjustified deduction, an undeserved windfall, that we should not require contrary to the informed views of the Service.
1
"§ 611. Allowance of deduction for depletion
"(a) General Rule
"In the case of mines, oil and gas wells; other natural deposits, and timber, there shall be allowed as a deduction in computing taxable income a reasonable allowance for depletion and for depreciation of improvements, according to the peculiar conditions in each case; such reasonable allowance in all cases to be made under regulations prescribed by the Secretary. . . ." 26 U.S.C. § 611(a).
"§ 613. Percentage depletion
"(a) General Rule
"In the case of the mines, wells, and other natural deposits listed in subsection (b), the allowance for depletion under section 611 shall be the percentage, specified in subsection (b), of the gross income from the property excluding from such gross income an amount equal to any rents or royalties paid or incurred by the taxpayer in respect of the property. Such allowance shall not exceed 50 percent of the taxpayer's taxable income from the property (computed without allowance for depletion). . . . In no case shall the allowance for depletion under section 611 be less than it would be if computed without reference to this section.
"(b) Percentage depletion rates
"The mines, wells, and other natural deposits, and the percentages, referred to in subsection (a) are as follows:
* * * * *
"(4) 10 percent
"Asbestos, . . . brucite, coal, lignite, perlite, sodium chloride, and wollastonite." 26 U.S.C. §§ 613(a), (b)(4).
2
Black Hawk Coal Corp., Inc., operated drift mines in Pike County, Ky. Its refund suit covered the tax years 1970-1972.
3
The Government states that the depletion deductions claimed by Swank in 1966 and 1967 amounted to $41,371.24 and $15,204.32. Brief for United States 3. See also App. 8a-9a. No other party claimed the depletion deduction on coal mined by Swank.
4
Bull Run Mining Co. operated in West Virginia. In its brief, Bull Run states that the leased coal was mined to exhaustion in September 1978. Brief for Respondent Bull Run Mining Co. 2.
5
Bull Run claimed a depletion deduction of $39,981.41 for 1974, the tax year in question. App. 92a.
6
The relevant section of the lease provides:
"5. CANCELLATION. It is agreed between the parties that either party to this agreement may cancel this lease upon giving to the other party a written notice at least thirty (30) days prior to the effective date of said cancellation. If any coal is mined during said thirty (30) day period, the same shall be paid for the same as if said notice were not given, and upon the expiration of said thirty (30) days, Lessee agrees to deliver the possession of said premises to the Lessor. Upon such cancellation becoming effective, Lessor shall reasonably compensate Lessee for the then fair market value of track, conveyors, dumps, bins, motors and other equipment which Lessee shall have affixed to the premises, and if the parties cannot agree upon such compensation, Lessee shall have a period of four (4) months within which to remove his equipment, from the effective date of cancellation." Id., at 96a.
7
In Helvering v. Bankline Oil Co., 303 U.S. 362, 366, 58 S.Ct. 616, 617, 82 L.Ed. 897, the Court explained that the deduction "is permitted in recognition of the fact that the mineral deposits are wasting assets and is intended as compensation to the owner for the part used up in production."
8
The Swank case is illustrative of the nature of the depletion deduction. We can determine from the fact that Swank paid royalties of $7,545.10 in 1966 and $6,854.05 in 1967 that Swank mined roughly the same amount of coal in both years, 21,557 tons in 1966 and 19,585 tons in 1967. Thus Swank could apparently claim a depletion allowance of about $1.92 per ton in 1966 and about 78 cents per ton in 1967. Inasmuch as the depletion allowance is a percentage of gross income, these figures—which suggest that the selling price of the coal may have been almost as high as $20 a ton—indicate the lack of any specific relationship between the lessee's cost of the raw coal and the value of the depletion allowance.
9
In the Revenue Act of 1918, the capital to be recovered through the depletion allowance was not determined by the owner's investment in the minerals but rather was measured by the fair market value of the property at the date the mineral deposits were "discovered." See Revenue Act of 1918, ch. 18, §§ 214(a)(10), 234(a)(9), 40 Stat. 1068, 1078. Although this method of determining the depletion allowance was changed to the percentage depletion method for oil and gas in 1926, Revenue Act of 1926, ch. 27, § 204(c), 44 Stat. (part 2) 16, and for coal in 1932, Revenue Act of 1932, ch. 209, § 114(b)(4), 47 Stat. 169, 203, this Court, in Helvering v. Bankline Oil Co., supra, at 366-367, 58 S.Ct., at 617-618, recognized that "[t]he granting of an arbitrary deduction . . . of a percentage of gross income was in the interest of convenience and in no way altered the fundamental theory of the allowance." Thus since 1918 the depletion deduction has not been limited to a recoupment of the operator's investment.
10
The Court developed the "economic interest" test in Palmer v. Bender, 287 U.S. 551, 53 S.Ct. 225, 77 L.Ed. 489. In Palmer, the Court stated:
"The language of the statute is broad enough to provide, at least, for every case in which the taxpayer has acquired, by investment, any interest in the oil in place, and secures, by any form of legal relationship, income derived from the extraction of the oil, to which he must look for a return of his capital." Id., at 557, 53 S.Ct., at 226.
11
The Government argues that the Court of Claims erred in concluding that a consequence of the Government's position is that no one will receive the percentage depletion deduction. See 602 F.2d 348, 351; Brief for United States 22-23. This argument is not persuasive.
Under § 631(c) of the Internal Revenue Code, the lessor is required to treat his royalty income as a capital gain, and is not entitled to claim a percentage depletion deduction. Section 631(c) provides in pertinent part:
"In the case of the disposal of coal (including lignite), or iron ore mined in the United States, held for more than 1 year before such disposal, by the owner thereof under any form of contract by virtue of which such owner retains an economic interest in such coal or iron ore, the difference between the amount realized from the disposal of such coal or iron ore and the adjusted depletion basis thereof plus the deductions disallowed for the taxable year under section 272 shall be considered as though it were a gain or loss, as the case may be, on the sale of such coal or iron ore. Such owner shall not be entitled to the allowance for percentage depletion provided in section 613 with respect to such coal or iron ore. This subsection shall not apply to income realized by any owner as a co-adventurer, partner, or principal in the mining of such coal or iron ore, and the word 'owner' means any person who owns an economic interest in coal or iron ore in place, including a sublessor." 26 U.S.C. § 631(c) (1976 ed., Supp. III) (emphasis added).
Unlike the percentage depletion deduction, the capital gains treatment required by § 631(c) is directly related to the lessor's capital investment in the mine. Because the lessor's gain is measured by the difference between his cost, computed on a per ton basis, and his royalty, he of course recoups his capital investment as the coal is mined. In this sense, he receives "cost depletion." The difference between the lessor's "cost depletion" and the lessee's "percentage depletion" is indicated by the record in the Swank case. In 1966 the royalty payments amounted to $7,545.10; a part of that amount was the lessor's capital gain and the remainder was his "cost depletion." In contrast, the "percentage depletion" claimed by the lessee amounted to $41,371.24. The amounts are not in dispute. Thus, contrary to the Government's argument, the provision of capital gains treatment to the lessor does not indicate that the percentage depletion deduction, which we have characterized as a form of "congressional grace," will be available to some other party if it cannot be claimed by the lessee. See n. 12, infra.
12
The Government conceded at oral argument that the lessor's entitlement to the capital gain treatment of the royalty proceeds would be the same regardless of whether the lessee is entitled to percentage depletion. Tr. of Oral Arg. 16. Moreover, the Government also conceded that even if the lessees had a long-term lease and were clearly entitled to the depletion allowance, the lessors would nevertheless have a retained economic interest in the coal. Id., at 16-18. Therefore, the lessors would be required by § 631(c) to take capital gains rather than a depletion deduction regardless of whether we hold that the lessee is entitled to the percentage depletion deduction.
13
Although these cases involve provisions for cancellation on 30 days' notice, the Government advises us that it takes the same position with respect to any lease cancellable on less than one year's notice. Tr. of Oral Arg. 8. This position has its genesis in G.C.M. 26290, 1950-1 Cum.Bull. 42, declared obsolete, Rev.Rul. 70-277, 1970-1 Cum.Bull. 280. See also Rev.Rul. 74-507, 1974-2 Cum.Bull. 179.
14
See n. 1, supra.
15
The Court early recognized that lessees had an economic interest in the mines:
"It is, of course, true that the leases here under review did not convey title to the unextracted ore deposits . . .; but it is equally true that such leases, conferring upon the lessee the exclusive possession of the deposits and the valuable right of removing and reducing the ore to ownership, created a very real and substantial interest therein. . . . And there can be no doubt that such an interest is property." Lynch v. Alworth-Stephens Co., 267 U.S. 364, 369, 45 S.Ct. 274, 275, 69 L.Ed. 660.
16
Treas.Reg. § 1.611-1(b), 26 CFR § 1.611-1(b) (1980).
17
The regulation provides an example of such an "economic advantage":
"[A]n agreement between the owner of an economic interest and another entitling the latter to purchase or process the product upon production or entitling the latter to compensation for extraction or cutting does not convey a depletable economic interest." Ibid.
18
The Court listed the seven factors in this paragraph:
"To recapitulate, the asserted fiction is opposed to the facts (1) that petitioners' investments were in their equipment, all of which was movable—not in the coal in place; (2) that their investments in equipment were recoverable through depreciation—not depletion; (3) that the contracts were completely terminable without cause on short notice ; (4) that the landowners did not agree to surrender and did not actually surrender to petitioners any capital interest in the coal in place; (5) that the coal at all times, even after it was mined, belonged entirely to the landowners, and that petitioners could not sell or keep any of it but were required to deliver all that they mined to the landowners; (6) that petitioners were not to have any part of the proceeds of the sale of the coal, but, on the contrary, they were to be paid a fixed sum for each ton mined and delivered, which was, as stated in Huss, agreed to be in 'full compensation for the full performance of all work and for the furnishing of all [labor] and equipment required for the work'; and (7) that petitioners, thus, agreed to look only to the landowners for all sums to become due them under their contracts. The agreement of the landowners to pay a fixed sum per ton for mining and delivering the coal 'was a personal covenant and did not purport to grant [petitioners] an interest in the [coal in place].' Helvering v. O'Donnell, 303 U.S. 370, 372, 58 S.Ct. 619, 620, 82 L.Ed. 903. Surely these facts show that petitioners did not actually make any capital investment in, or acquire any economic interest in, the coal in place, and that they may not fictionally be regarded as having done so." 359 U.S., at 225, 79 S.Ct., at 663 (emphasis added).
19
Although this fee varied depending on the general trends of the market price and labor costs, the Court noted that such changes "were always prospective, the contractors being notified several days in advance of any change so that they always knew the amount they would get for the mining of the coal upon delivery." 380 U.S., at 628, 85 S.Ct., at 1209.
20
With respect to the terminability issue, although no specific right to terminate was mentioned in the agreement, the Paragon Jewel Court concluded that because the contractors had apparently been able to terminate at will, such a power should also be imputed to Paragon. The Court indicated, however, that even if the agreements were not terminable at will, the "right to mine to exhaustion, without more, does not constitute an economic interest under Parsons." Id., at 634, 85 S.Ct., at 1212.
21
Another distinguishing feature of Paragon Jewel is that that case really presented an issue respecting which taxpayer—the contract miner or the lessee—should receive the depletion allowance. See id., at 626, 630, 85 S.Ct., at 1208, 1210; id., at 639-649, 85 S.Ct., at 1214-1219 (Goldberg, J., dissenting). The fact that the existence of a right to terminate is relevant in what is essentially a dispute between the parties to the contract surely does not support the conclusion that such an unexercised right has any bearing on the question whether any taxpayer may claim percentage depletion.
22
"Although he has a potential right to benefit from a rise in the market, that right is illusory for practical economics will compel the lessor to terminate the lease and conclude a more favorable arrangement if market conditions so dictate." Brief for United States 19.
"As we have pointed out (supra, page 19), if the market price of the minerals rises above the lessor's royalty, the lessor will assuredly exercise his right to terminate the lease on short notice and will either enter into a more profitable lease or extract the mineral himself and sell it. In these circumstances, the lease provision permitting termination on short notice gives the lessor the unilateral right to assume complete and unfettered dominion over the mineral deposit, viz., an economic interest in the minerals in place. The unexercised termination clause therefore has profound economic significance, rather than, as the decision below erroneously concluded (Pet.App. 5a), 'mere existence.' " Id., at 21-22 (footnotes omitted).
23
In Swank, for example, the royalty payment was 35 cents per ton, while the price of coal apparently approached $20 per ton. See n. 8, supra.
24
The Court of Claims opinion also recognized the weakness of this argument. The court stated that counsel for one of the taxpayers at oral argument had noted that the lessors had not terminated even though the value of coal had increased markedly. The taxpayer argued that lessors would be reluctant to terminate because "the costs of continuing with an existing mine are usually so great, comparatively, that it is difficult for a lessor to obtain new lessees at terms more favorable to the lessors than the existing leases." 602 F.2d, at 351, n. 9. The court did not accept these representations as evidence but indicated that "the record contains nothing to contradict this explanation for what seems to be the fact that leases of this type have not been regularly cancelled by lessors in recent years." Ibid.
25
As we have indicated, the depletion deduction is geared to the depletion of the mineral in place, and not to the taxpayer's capital investment. Therefore, we can perceive no reason to impose duration requirements on the availability of the deduction for taxpayers who admittedly otherwise have an "economic interest" in the coal, are dependent on the market to recover their costs, and are actually depleting the mineral in place.
1
The position of the Service is that in order for a leaseholder to qualify as possessing an economic interest in the mineral deposit, the leaseholder's "right to extract must be of sufficient duration to allow it to remove a substantial amount of the mineral deposit to which it would look for a return of its capital." Rev.Rul. 74-506, 1974-2 Cum.Bull. 178-179 (6-month lease where it was anticipated that the period was sufficient to exhaust a mineral deposit did provide a sufficient economic interest). See Rev.Rul. 77-341, 1977-2 Cum.Bull. 204-205. The Service has also indicated that a 1-year lease which was renewable unless terminated for cause was sufficient for a coal mining lessee to acquire an economic interest for the purposes of obtaining a depletion allowance under § 613 of the Code. See Rev.Rul. 74-507, 1974-2 Cum.Bull. 179. See also G.C.M. 26290, 1950-1 Cum.Bull. 42. Thus, contrary to the Court's view, the Service has not focused on the duration of the lease as the only relevant factor. Marketing schemes and other indicia of economic ownership are also relevant in the determination.
2
See, e. g., Whitmer v. Commissioner, 443 F.2d 170, 173 (CA3 1971) (right of lessor to terminate at will "would appear to be fatal to a lessee's ability to claim the depletion deduction, because no right to extract until exhaustion of the coal has been granted"); McCall v. Commissioner, 312 F.2d 699, 705 (CA4 1963) ("[w]here the contract is terminable at will, at least by the owner or long-term lessee, that feature is the determining feature"); United States v. Stallard, 273 F.2d 847, 851 (CA4 1959) (the most important factor "is whether the producer has the right under the contract to exhaust the deposit to completion or in subject in this respect to the will of the owner through a provision in the agreement empowering the owner to terminate the contract at will"); Weaver v. Commissioner, 72 T.C. 594, 606 (1979) ("a miner who can be ousted immediately or on nominal notice from a mineral deposit at any time without cause is not really an owner of any economic interest in the deposit"); Mullins v. Commissioner, 48 T.C. 571, 583 (1967) (courts have repeatedly held that "the right to mine to exhaustion or for a specific period is the critical factor in determining whether a lessee has obtained a depletable economic interest in the mineral in place"); Bolling v. Commissioner, 37 T.C. 754 (1962). See also Costantino v. Commissioner, 445 F.2d 405, 409 (CA3 1971); Commissioner v. Mammoth Coal Co., 229 F.2d 535 (CA3 1956); Usibelli v. Commissioner, 229 F.2d 539 (CA9 1955); Holbrook v. Commissioner, 65 T.C. 415, 418-421 (1975).
To be sure there is authority to the contrary. See Winters Coal Co. v. Commissioner, 496 F.2d 995 (CA5 1974); Bakertown Coal Co. v. United States, 485 F.2d 633, 202 Ct.Cl. 842 (1973). The decision in Winters Coal is obscure because two members of the Fifth Circuit panel held that an economic interest existed for the reason that the taxpayer had purchased surface access rights which were necessary to mine the coal, and given this investment, a depletion allowance was justified. See Commissioner v. Southwest Exploration Co., 350 U.S. 308, 76 S.Ct. 395, 100 L.Ed. 247 (1956). The Service indicated that it would not follow Bakertown Coal because, in its view, the terminability of a lease was "fatal to a claim of an economic interest . . . ." Rev.Rul. 77-481, 1977-2 Cum.Bull. 205-206.
3
Nor is it of any consequence that the owners of the land may not be able to take advantage of the percentage allowance provided by § 611 and § 613 even if the lessees are held not to be entitled to it. Under the Code, the owners are entitled to another favorable tax treatment permitting them to consider royalty payments as capital gains. See 26 U.S.C. § 631(c) (1976 ed., Supp. III). The tax treatment under § 631(c) serves the same function as the depletion allowance at issue in this case since the amount which the owner considers as capital gain takes into account his adjusted depletion basis in the coal extracted during the year. Thus, the owner is taxed under the favorable capital gain method only on the difference between the amount realized less the adjusted depletion basis, which is the pro rata cost to the taxpayer of the coal extracted. It is clear, therefore, that § 631(c) permits the owner to recoup his capital investment without impairment under a method substantially akin to cost depletion. It is specious, therefore, to argue that respondents are entitled to a depletion allowance because the owners are denied one since the owners in fact receive a benefit similar to a depletion allowance.
In any event, even if the owners were denied a depletion allowance, this fact would be immaterial. Tax benefits are not entitlements, and it has been specifically noted that the provision of a depletion allowance is solely a matter of legislative grace. Paragon Jewel, 380 U.S., at 631, 85 S.Ct., at 1210; Parsons, 359 U.S., at 219, 79 S.Ct., at 659; Bankline Oil, 303 U.S., at 366, 58 S.Ct., at 618; Anderson v. Helvering, 310 U.S. 404, 408, 60 S.Ct. 952, 954, 84 L.Ed. 1277 (1940); Commissioner v. Southwest Exploration Co., supra, at 312, 76 S.Ct., at 397. The only relevant question is whether under the present law respondents qualify under the statute in their own right, and not with respect to the independent tax treatment of the lessors.
| 1112
|
451 U.S. 454
101 S.Ct. 1866
68 L.Ed.2d 359
W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Petitioner,v.Ernest Benjamin SMITH.
No. 79-1127.
Argued Oct. 8, 1980.
Decided May 18, 1981.
Syllabus
After respondent was indicted in Texas for murder, the State announced its intention to seek the death penalty. At an ensuing psychiatric examination, ordered by the trial court to determine respondent's competency to stand trial and conducted in the jail where he was being held, the examining doctor determined that respondent was competent. Thereafter, respondent was tried by a jury and convicted. A separate sentencing proceeding was then held before the same jury as required by Texas law. At such a proceeding the jury must resolve three critical issues to determine whether or not the death sentence will be imposed. One of these issues involves the future dangerousness of the defendant, i. e., whether there is a probability that he would commit criminal acts of violence that would constitute a continuing threat to society. At the sentencing hearing, the doctor who had conducted the pretrial psychiatric examination was allowed to testify for the State over defense counsels' objection that his name did not appear on the list of witnesses the State planned to use at either the guilt or penalty stages of the proceedings. His testimony was based on the pretrial examination and stated in substance that respondent would be a danger to society. The jury then resolved the issue of future dangerousness, as well as the other two issues, against respondent, and thus under Texas law the death penalty was mandatory. The Texas Court of Criminal Appeals affirmed the conviction and death sentence. After unsuccessfully seeking a writ of habeas corpus in the state courts, respondent petitioned for such relief in Federal District Court. That court vacated the death sentence because it found constitutional error in admitting the doctor's testimony at the penalty phase. The United States Court of Appeals affirmed.
Held :
1. The admission of the doctor's testimony at the penalty phase violated respondent's Fifth Amendment privilege against compelled self-incrimination, because he was not advised before the pretrial psychiatric examination that he had a right to remain silent and that any statement he made could be used against him at a capital sentencing proceeding. Pp. 461-469.
(a) There is no basis for distinguishing between the guilt and penalty phases of respondent's trial so far as the protection of the Fifth Amendment privilege is concerned. The State's attempt to establish respondent's future dangerousness by relying on the unwarned statements he made to the examining doctor infringed the Fifth Amendment just as much as would have any effort to compel respondent to testify against his will at the sentencing hearing. Pp. 462-463.
(b) The Fifth Amendment privilege is directly involved here because the State used as evidence against respondent the substance of his disclosures during the pretrial psychiatric examination. The fact that respondent's statements were made in the context of such an examination does not automatically remove them from the reach of that Amendment. Pp. 463-466.
(c) The considerations calling for the accused to be warned prior to custodial interrogation apply with no less force to the pretrial psychiatric examination at issue here. An accused who neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding. When faced while in custody with a court-ordered psychiatric inquiry, respondent's statements to the doctor were not "given freely and voluntarily without any compelling influences" and, as such, could be used as the State did at the penalty phase only if respondent had been apprised of his rights and had knowingly decided to waive them. Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694. Since these safeguards of the Fifth Amendment privilege were not afforded respondent, his death sentence cannot stand. Pp. 466-469.
2. Respondent's Sixth Amendment right to the assistance of counsel also was violated by the State's introduction of the doctor's testimony at the penalty phase. Such right already had attached when the doctor examined respondent in jail, and that interview proved to be a "critical stage" of the aggregate proceedings against respondent. Defense counsel were not notified in advance that the psychiatric examination would encompass the issue of their client's future dangerousness, and respondent was denied the assistance of his counsel in making the significant decision of whether to submit to the examination and to what end the psychiatrist's findings could be employed. Pp. 469-471.
5 Cir., 602 F.2d 694, affirmed.
Anita Ashton, Austin, Tex., for petitioner.
Joel Berger, New York City, for respondent.
Chief Justice BURGER, delivered the opinion of the Court.
1
We granted certiorari to consider whether the prosecution's use of psychiatric testimony at the sentencing phase of respondent's capital murder trial to establish his future dangerousness violated his constitutional rights. 445 U.S. 926, 100 S.Ct. 1311, 63 L.Ed.2d 758 (1980).
2
* A.
3
On December 28, 1973, respondent Ernest Benjamin Smith was indicted for murder arising from his participation in the armed robbery of a grocery store during which a clerk was fatally shot, not by Smith, but by his accomplice. In accordance with Art. 1257(b)(2) of the Tex.Penal Code Ann. (Vernon 1974) concerning the punishment for murder with malice aforethought, the State of Texas announced its intention to seek the death penalty. Thereafter, a judge of the 195th Judicial District Court of Dallas County, Texas, informally ordered the State's attorney to arrange a psychiatric examination of Smith by Dr. James P. Grigson to determine Smith's competency to stand trial.1 See n. 5, infra.
4
Dr. Grigson, who interviewed Smith in jail for approximately 90 minutes, concluded that he was competent to stand trial. In a letter to the trial judge, Dr. Grigson reported his findings: "[I]t is my opinion that Ernest Benjamin Smith, Jr., is aware of the difference between right and wrong and is able to aid an attorney in his defense." App. A-6. This letter was filed with the court's papers in the case. Smith was then tried by a jury and convicted of murder.
5
In Texas, capital cases require bifurcated proceedings—a guilt phase and a penalty phase.2 If the defendant is found guilty, a separate proceeding before the same jury is held to fix the punishment. At the penalty phase, if the jury affirmatively answers three questions on which the State has the burden of proof beyond a reasonable doubt, the judge must impose the death sentence. See Tex.Code Crim.Proc.Ann., Arts. 37.071(c) and (e) (Vernon Supp. 1980). One of the three critical issues to be resolved by the jury is "whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society." Art. 37.071(b)(2).3 In other words, the jury must assess the defendant's future dangerousness.
6
At the commencement of Smith's sentencing hearing, the State rested "[s]ubject to the right to reopen." App. A-11. Defense counsel called three lay witnesses: Smith's stepmother, his aunt, and the man who owned the gun Smith carried during the robbery. Smith's relatives testified as to his good reputation and character.4 The owner of the pistol testified as to Smith's knowledge that it would not fire because of a mechanical defect. The State then called Dr. Grigson as a witness.
7
Defense counsel were aware from the trial court's file of the case that Dr. Grigson had submitted a psychiatric report in the form of a letter advising the court that Smith was competent to stand trial.5 This report termed Smith "a severe sociopath," but it contained no more specific reference to his future dangerousness. Id., at A-6. Before trial, defense counsel had obtained an order requiring the State to disclose the witnesses it planned to use both at the guilt stage, and, if known, at the penalty stage. Subsequently, the trial court had granted a defense motion to bar the testimony during the State's case in chief of any witness whose name did not appear on that list. Dr. Grigson's name was not on the witness list, and defense counsel objected when he was called to the stand at the penalty phase.
8
In a hearing outside the presence of the jury, Dr. Grigson stated: (a) that he had not obtained permission from Smith's attorneys to examine him; (b) that he had discussed his conclusions and diagnosis with the State's attorney; and (c) that the prosecutor had requested him to testify and had told him, approximately five days before the sentencing hearing began, that his testimony probably would be needed within the week. Id., at A-14—A-16. The trial judge denied a defense motion to exclude Dr. Grigson's testimony on the ground that his name was not on the State's list of witnesses. Although no continuance was requested, the court then recessed for one hour following an acknowledgment by defense counsel that an hour was "all right." Id., at A-17.
9
After detailing his professional qualifications by way of foundation, Dr. Grigson testified before the jury on direct examination: (a) that Smith "is a very severe sociopath"; (b) that "he will continue his previous behavior"; (c) that his sociopathic condition will "only get worse"; (d) that he has no "regard for another human being's property or for their life, regardless of who it may be"; (e) that "[t]here is no treatment, no medicine . . . that in any way at all modifies or changes this behavior"; (f) that he "is going to go ahead and commit other similar or same criminal acts if given the opportunity to do so"; and (g) that he "has no remorse or sorrow for what he has done." Id., at A-17—A-26. Dr. Grigson, whose testimony was based on information derived from his 90-minute "mental status examination" of Smith (i. e., the examination ordered to determine Smith's competency to stand trial), was the State's only witness at the sentencing hearing.
10
The jury answered the three requisite questions in the affirmative, and, thus, under Texas law the death penalty for Smith was mandatory. The Texas Court of Criminal Appeals affirmed Smith's conviction and death sentence, Smith v. State, 540 S.W.2d 693 (Tex.Cr.App.1976), and we denied certiorari, 430 U.S. 922, 97 S.Ct. 1341, 51 L.Ed.2d 601 (1977).
B
11
After unsuccessfully seeking a writ of habeas corpus in the Texas state courts, Smith petitioned for such relief in the United States District Court for the Northern District of Texas pursuant to 28 U.S.C. § 2254. The District Court vacated Smith's death sentence because it found constitutional error in the admission of Dr. Grigson's testimony at the penalty phase. 445 F.Supp. 647 (1977). The court based its holding on the failure to advise Smith of his right to remain silent at the pretrial psychiatric examination and the failure to notify defense counsel in advance of the penalty phase that Dr. Grigson would testify. The court concluded that the death penalty had been imposed on Smith in violation of his Fifth and Fourteenth Amendment rights to due process and freedom from compelled self-incrimination, his Sixth Amendment right to the effective assistance of counsel, and his Eighth Amendment right to present complete evidence of mitigating circumstances. Id., at 664.
12
The United States Court of Appeals for the Fifth Circuit affirmed. 602 F.2d 694 (1979). The court held that Smith's death sentence could not stand because the State's "surprise" use of Dr. Grigson as a witness, the consequences of which the court described as "devastating," denied Smith due process in that his attorneys were prevented from effectively challenging the psychiatric testimony. Id., at 699. The court went on to hold that, under the Fifth and Sixth Amendments, "Texas may not use evidence based on a psychiatric examination of the defendant unless the defendant was warned, before the examination, that he had a right to remain silent; was allowed to terminate the examination when he wished; and was assisted by counsel in deciding whether to submit to the examination." Id., at 709. Because Smith was not accorded these rights, his death sentence was set aside. While "leav[ing] to state authorities any questions that arise about the appropriate way to proceed when the state cannot legally execute a defendant whom it has sentenced to death," the court indicated that "the same testimony from Dr. Grigson, based on the same examination of Smith" could not be used against Smith at any future resentencing proceeding. Id., at 703, n. 13, 709, n. 20.
II
A.
13
Of the several constitutional issues addressed by the District Court and the Court of Appeals, we turn first to whether the admission of Dr. Grigson's testimony at the penalty phase violated respondent's Fifth Amendment privilege against compelled self-incrimination because respondent was not advised before the pretrial psychiatric examination that he had a right to remain silent and that any statement he made could be used against him at a sentencing proceeding. Our initial inquiry must be whether the Fifth Amendment privilege is applicable in the circumstances of this case.
(1)
14
The State argues that respondent was not entitled to the protection of the Fifth Amendment because Dr. Grigson's testimony was used only to determine punishment after conviction, not to establish guilt. In the State's view, "incrimination is complete once guilt has been adjudicated," and, therefore, the Fifth Amendment privilege has no relevance to the penalty phase of a capital murder trial. Brief for Petitioner 33-34. We disagree.
15
The Fifth Amendment, made applicable to the states through the Fourteenth Amendment, commands that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself." The essence of this basic constitutional principle is "the requirement that the State which proposes to convict and punish an individual produce the evidence against him by the independent labor of its officers, not by the simple, cruel expedient of forcing it from his own lips." Culombe v. Connecticut, 367 U.S. 568, 581-582, 81 S.Ct. 1860, 1867, 6 L.Ed.2d 1037 (1961) (opinion announcing the judgment) (emphasis added). See also Murphy v. Waterfront Comm'n, 378 U.S. 52, 55, 84 S.Ct. 1594, 1596-1597, 12 L.Ed.2d 678 (1964); E. Griswold, The Fifth Amendment Today 7 (1955).
16
The Court has held that "the availability of the [Fifth Amendment] privilege does not turn upon the type of proceeding in which its protection is invoked, but upon the nature of the statement or admission and the exposure which it invites." In re Gault, 387 U.S. 1, 49, 87 S.Ct. 1428, 1455, 18 L.Ed.2d 527 (1967). In this case, the ultimate penalty of death was a potential consequence of what respondent told the examining psychiatrist. Just as the Fifth Amendment prevents a criminal defendant from being made " 'the deluded instrument of his own conviction,' " Culombe v. Connecticut, supra, at 581, quoting 2 Hawkins, Pleas of the Crown 595 (8th ed. 1824), it protects him as well from being made the "deluded instrument" of his own execution.
17
We can discern no basis to distinguish between the guilt and penalty phases of respondent's capital murder trial so far as the protection of the Fifth Amendment privilege is concerned.6 Given the gravity of the decision to be made at the penalty phase, the State is not relieved of the obligation to observe fundamental constitutional guarantees. See Green v. Georgia, 442 U.S. 95, 97, 99 S.Ct. 2150, 2152, 60 L.Ed.2d 738 (1979); Presnell v. Georgia, 439 U.S. 14, 16, 99 S.Ct. 235, 236, 58 L.Ed.2d 207 (1978); Gardner v. Florida, 430 U.S. 349, 357-358, 97 S.Ct. 1197, 1204-1205, 51 L.Ed.2d 393 (1977) (plurality opinion). Any effort by the State to compel respondent to testify against his will at the sentencing hearing clearly would contravene the Fifth Amendment.7 Yet the State's attempt to establish respondent's future dangerousness by relying on the unwarned statements he made to Dr. Grigson similarly infringes Fifth Amendment values.
18
(2)
19
The State also urges that the Fifth Amendment privilege is inapposite here because respondent's communications to Dr. Grigson were nontestimonial in nature. The State seeks support from our cases holding that the Fifth Amendment is not violated where the evidence given by a defendant is neither related to some communicative act nor used for the testimonial content of what was said. See, e. g., United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973) (voice exemplar); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) (handwriting exemplar); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) (lineup); Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) (blood sample).
20
However, Dr. Grigson's diagnosis, as detailed in his testimony, was not based simply on his observation of respondent. Rather, Dr. Grigson drew his conclusions largely from respondent's account of the crime during their interview, and he placed particular emphasis on what he considered to be respondent's lack of remorse. See App. A-27—A-29, A-33—A-34.8 Dr. Grigson's prognosis as to future dangerousness rested on statements respondent made, and remarks he omitted, in reciting the details of the crime.9 The Fifth Amendment privilege, therefore, is directly involved here because the State used as evidence against respondent the substance of his disclosures during the pretrial psychiatric examination.
21
The fact that respondent's statements were uttered in the context of a psychiatric examination does not automatically remove them from the reach of the Fifth Amendment. See n.6, supra. The state trial judge, sua sponte, ordered a psychiatric evaluation of respondent for the limited, neutral purpose of determining his competency to stand trial, but the results of that inquiry were used by the State for a much broader objective that was plainly adverse to respondent. Consequently, the interview with Dr. Grigson cannot be characterized as a routine competency examination restricted to ensuring that respondent understood the charges against him and was capable of assisting in his defense. Indeed, if the application of Dr. Grigson's findings had been confined to serving that function, no Fifth Amendment issue would have arisen.
22
Nor was the interview analogous to a sanity examination occasioned by a defendant's plea of not guilty by reason of insanity at the time of his offense. When a defendant asserts the insanity defense and introduces supporting psychiatric testimony, his silence may deprive the State of the only effective means it has of controverting his proof on an issue that he interjected into the case. Accordingly, several Courts of Appeals have held that, under such circumstances, a defendant can be required to submit to a sanity examination conducted by the prosecution's psychiatrist. See, e. g., United States v. Cohen, 530 F.2d 43, 47-48 (CA5), cert. denied, 429 U.S. 855, 97 S.Ct. 149, 50 L.Ed.2d 130 (1976); Karstetter v. Cardwell, 526 F.2d 1144, 1145 (CA9 1975); United States v. Bohle, 445 F.2d 54, 66-67 (CA7 1971); United States v. Weiser, 428 F.2d 932, 936 (CA2 1969), cert. denied, 402 U.S. 949, 91 S.Ct. 1606, 29 L.Ed.2d 119 (1971); United States v. Albright, 388 F.2d 719, 724-725 (CA4 1968); Pope v. United States, 372 F.2d 710, 720-721 (CA8 1967) (en banc), vacated and remanded on other grounds, 392 U.S. 651, 88 S.Ct. 2145, 20 L.Ed.2d 1317 (1968).10
23
Respondent, however, introduced no psychiatric evidence, nor had he indicated that he might do so. Instead, the State offered information obtained from the court-ordered competency examination as affirmative evidence to persuade the jury to return a sentence of death. Respondent's future dangerousness was a critical issue at the sentencing hearing, and one on which the State had the burden of proof beyond a reasonable doubt. See Tex.Code Crim.Proc.Ann., Arts. 37.071(b) and (c) (Vernon Supp. 1980). To meet its burden, the State used respondent's own statements, unwittingly made without an awareness that he was assisting the State's efforts to obtain the death penalty. In these distinct circumstances, the Court of Appeals correctly concluded that the Fifth Amendment privilege was implicated.
24
(3)
25
In Miranda v. Arizona, 384 U.S. 436, 467, 86 S.Ct. 1602, 1624, 16 L.Ed.2d 694 (1966), the Court acknowledged that "the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves." Miranda held that "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." Id., at 444, 86 S.Ct., at 1612. Thus, absent other fully effective procedures, a person in custody must receive certain warnings before any official interrogation, including that he has a "right to remain silent" and that "anything said can and will be used against the individual in court." Id., at 467-469, 86 S.Ct., at 1624-1625. The purpose of these admonitions is to combat what the Court saw as "inherently compelling pressures" at work on the person and to provide him with an awareness of the Fifth Amendment privilege and the consequences of forgoing it, which is the prerequisite for "an intelligent decision as to its exercise." Ibid.
26
The considerations calling for the accused to be warned prior to custodial interrogation apply with no less force to the pretrial psychiatric examination at issue here. Respondent was in custody at the Dallas County Jail when the examination was ordered and when it was conducted. That respondent was questioned by a psychiatrist designated by the trial court to conduct a neutral competency examination, rather than by a police officer, government informant, or prosecuting attorney, is immaterial. When Dr. Grigson went beyond simply reporting to the court on the issue of competence and testified for the prosecution at the penalty phase on the crucial issue of respondent's future dangerousness, his role changed and became essentially like that of an agent of the State recounting unwarned statements made in a postarrest custodial setting. During the psychiatric evaluation, respondent assuredly was "faced with a phase of the adversary system" and was "not in the presence of [a] perso[n] acting solely in his interest." Id., at 469, 86 S.Ct., at 1625. Yet he was given no indication that the compulsory examination would be used to gather evidence necessary to decide whether, if convicted, he should be sentenced to death. He was not informed that, accordingly, he had a constitutional right not to answer the questions put to him.
27
The Fifth Amendment privilege is "as broad as the mischief against which it seeks to guard," Counselman v. Hitchcock, 142 U.S. 547, 562, 12 S.Ct. 195, 198, 35 L.Ed. 1110 (1892), and the privilege is fulfilled only when a criminal defendant is guaranteed the right "to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty . . . for such silence."11 Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 1493-1494, 12 L.Ed.2d 653 (1964). We agree with the Court of Appeals that respondent's Fifth Amendment rights were violated by the admission of Dr. Grigson's testimony at the penalty phase.12
28
A criminal defendant, who neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence, may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding. Because respondent did not voluntarily consent to the pretrial psychiatric examination after being informed of his right to remain silent and the possible use of his statements, the State could not rely on what he said to Dr. Grigson to establish his future dangerousness. If, upon being adequately warned, respondent had indicated that he would not answer Dr. Grigson's questions, the validly ordered competency examination nevertheless could have proceeded upon the condition that the results would be applied solely for that purpose. In such circumstances, the proper conduct and use of competency and sanity examinations are not frustrated, but the State must make its case on future dangerousness in some other way.
29
"Volunteered statements . . . are not barred by the Fifth Amendment," but under Miranda v. Arizona, supra, we must conclude that, when faced while in custody with a court-ordered psychiatric inquiry, respondent's statements to Dr. Grigson were not "given freely and voluntarily without any compelling influences" and, as such, could be used as the State did at the penalty phase only if respondent had been apprised of his rights and had knowingly decided to waive them. Id., at 478, 86 S.Ct., at 1630. These safeguards of the Fifth Amendment privilege were not afforded respondent and, thus, his death sentence cannot stand.13
B
30
When respondent was examined by Dr. Grigson, he already had been indicted and an attorney had been appointed to represent him. The Court of Appeals concluded that he had a Sixth Amendment right to the assistance of counsel before submitting to the pretrial psychiatric interview. 602 F.2d, at 708-709. We agree.
31
The Sixth Amendment, made applicable to the states through the Fourteenth Amendment, provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense." The "vital" need for a lawyer's advice and aid during the pretrial phase was recognized by the Court nearly 50 years ago in Powell v. Alabama, 287 U.S. 45, 57, 71, 53 S.Ct. 55, 60, 65, 77 L.Ed. 158 (1932). Since then, we have held that the right to counsel granted by the Sixth Amendment means that a person is entitled to the help of a lawyer "at or after the time that adversary judicial proceedings have been initiated against him . . . whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." Kirby v. Illinois, 406 U.S. 682, 688-689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972) (plurality opinion); Moore v. Illinois, 434 U.S. 220, 226-229, 98 S.Ct. 458, 463-465, 54 L.Ed.2d 424 (1977). And in United States v. Wade, 388 U.S., at 226-227, 87 S.Ct., at 1932 the Court explained:
32
"It is central to [the Sixth Amendment] principle that in addition to counsel's presence at trial, the accused is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel's absence might derogate from the accused's right to a fair trial." (Footnote omitted.)
33
See United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980); Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). See also White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963); Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961).
34
Here, respondent's Sixth Amendment right to counsel clearly had attached when Dr. Grigson examined him at the Dallas County Jail,14 and their interview proved to be a "critical stage" of the aggregate proceedings against respondent. See Coleman v. Alabama, 399 U.S. 1, 7-10, 90 S.Ct. 1999, 2002-2004, 26 L.Ed.2d 387 (1970) (plurality opinion); Powell v. Alabama, supra, 287 U.S., at 57, 53 S.Ct., at 60. Defense counsel, however, were not notified in advance that the psychiatric examination would encompass the issue of their client's future dangerousness,15 and respondent was denied the assistance of his attorneys in making the significant decision of whether to submit to the examination and to what end the psychiatrist's findings could be employed.
35
Because "[a] layman may not be aware of the precise scope, the nuances, and the boundaries of his Fifth Amendment privilege," the assertion of that right "often depends upon legal advise from someone who is trained and skilled in the subject matter." Maness v. Meyers, 419 U.S. 449, 466, 95 S.Ct. 584, 595, 42 L.Ed.2d 574 (1975). As the Court of Appeals observed, the decision to be made regarding the proposed psychiatric evaluation is "literally a life or death matter" and is "difficult . . . even for an attorney" because it requires "a knowledge of what other evidence is available, of the particular psychiatrist's biases and predilections, [and] of possible alternative strategies at the sentencing hearing." 602 F.2d, at 708. It follows logically from our precedents that a defendant should not be forced to resolve such an important issue without "the guiding hand of counsel." Powell v. Alabama, supra, 287 U.S., at 69, 53 S.Ct., at 64.
36
Therefore, in addition to Fifth Amendment considerations, the death penalty was improperly imposed on respondent because the psychiatric examination on which Dr. Grigson testified at the penalty phase proceeded in violation of respondent's Sixth Amendment right to the assistance of counsel.16
C
37
Our holding based on the Fifth and Sixth Amendments will not prevent the State in capital cases from proving the defendant's future dangerousness as required by statute. A defendant may request or consent to a psychiatric examination concerning future dangerousness in the hope of escaping the death penalty. In addition, a different situation arises where a defendant intends to introduce psychiatric evidence at the penalty phase. See n. 10, supra.
38
Moreover, under the Texas capital sentencing procedure, the inquiry necessary for the jury's resolution of the future dangerousness issue is in no sense confined to the province of psychiatric experts. Indeed, some in the psychiatric community are of the view that clinical predictions as to whether a person would or would not commit violent acts in the future are "fundamentally of very low reliability" and that psychiatrists possess no special qualifications for making such forecasts. See Report of the America Psychiatric Association Task Force on Clinical Aspects of the Violent Individual 23-30, 33 (1974); A. Stone Mental Health and Law: A System in Transition 27-36 (1975); Brief for American Psychiatric Association as Amicus Curiae 11-17.
39
In Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), we held that the Texas capital sentencing statute is not unconstitutional on its face. As to the jury question on future dangerousness, the joint opinion announcing the judgment emphasized that a defendant is free to present whatever mitigating factors he may be able to show, e. g., the range and severity of his past criminal conduct, his age, and the circumstances surrounding the crime for which he is being sentenced. Id., at 272-273, 96 S.Ct., at 2956-2957. The State, of course, can use the same type of evidence in seeking to establish a defendant's propensity to commit other violent acts.
40
In responding to the argument that foretelling future behavior is impossible, the joint opinion stated:
41
"[P]rediction of future criminal conduct is an essential element in many of the decisions rendered throughout our criminal justice system. The decision whether to admit a defendant to bail, for instance, must often turn on a judge's prediction of the defendant's future conduct. And any sentencing authority must predict a convicted person's probable future conduct when it engages in the process of determining what punishment to impose. For those sentenced to prison, these same predictions must be made by parole authorities. The task that a Texas jury must perform in answering the statutory question in issue is thus basically no different from the task performed countless times each day throughout the American system of criminal justice." (Footnotes omitted.) Id., at 275-276, 96 S.Ct., at 2957-2958 (footnotes omitted).
42
While in no sense disapproving the use of psychiatric testimony bearing on the issue of future dangerousness, the holding in Jurek was guided by recognition that the inquiry mandated by Texas law does not require resort to medical experts.
III
43
Respondent's Fifth and Sixth Amendment rights were abridged by the State's introduction of Dr. Grigson's testimony at the penalty phase, and, as the Court of Appeals concluded, his death sentence must be vacated.17 Because respondent's underlying conviction has not been challenged and remains undisturbed, the State is free to conduct further proceedings not inconsistent with this opinion. Accordingly, the judgment of the Court of Appeals is
44
Affirmed.
45
Justice BRENNAN.
46
I join the Court's opinion. I also adhere to my position that the death penalty is in all circumstances unconstitutional.
47
Justice MARSHALL, concurring in part.
48
I join in all but Part II-C of the opinion of the Court. I adhere to my consistent view that the death penalty is under all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments. I therefore am unable to join the suggestion in Part II-C that the penalty may ever be constitutionally imposed.
49
Justice STEWART, with whom Justice POWELL joins, concurring in the judgment.
50
The respondent had been indicted for murder and a lawyer had been appointed to represent him before he was examined by Dr. Grigson at the behest of the State. Yet that examination took place without previous notice to the respondent's counsel. The Sixth and Fourteenth Amendments as applied in such cases as Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246, and Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424, made impermissible the introduction of Dr. Grigson's testimony against the respondent at any stage of his trial.
51
I would for this reason affirm the judgment before us without reaching the other issues discussed by the Court.
52
Justice REHNQUIST, concurring in the judgment.
53
I concur in the judgment because, under Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), respondent's counsel should have been notified prior to Dr. Grigson's examination of respondent. As the Court notes, ante, at 469, respondent had been indicted and an attorney had been appointed to represent him. Counsel was entitled to be made aware of Dr. Grigson's activities involving his client and to advise and prepare his client accordingly. This is by no means to say that respondent had any right to have his counsel present at any examination. In this regard I join the Court's careful delimiting of the Sixth Amendment issue, ante, at 470, n. 14.
54
Since this is enough to decide the case, I would not go on to consider the Fifth Amendment issues and cannot subscribe to the Court's resolution of them. I am not convinced that any Fifth Amendment rights were implicated by Dr. Grigson's examination of respondent. Although the psychiatrist examined respondent prior to trial, he only testified concerning the examination after respondent stood convicted. As the court in Hollis v. Smith, 571 F.2d 685, 690-691 (CA2 1978), analyzed the issue: "The psychiatrist's interrogation of [defendant] on subjects presenting no threat of disclosure of prosecutable crimes, in the belief that the substance of [defendant's] responses or the way in which he gave them might cast light on what manner of man he was, involved no 'compelled testimonial self-incrimination' even though the consequence might be more severe punishment."
55
Even if there are Fifth Amendment rights involved in this case, respondent never invoked these rights when confronted with Dr. Grigson's questions. The Fifth Amendment privilege against compulsory self-incrimination is not self-executing. "Although Miranda's requirement of specific warnings creates a limited exception to the rule that the privilege must be claimed, the exception does not apply outside the context of the inherently coercive custodial interrogations for which it was designed." Roberts v. United States, 445 U.S. 552, 560, 100 S.Ct. 1358, 1364, 63 L.Ed.2d 622 (1980). The Miranda requirements were certainly not designed by this Court with psychiatric examinations in mind. Respondent was simply not in the inherently coercive situation considered in Miranda. He had already been indicted, and counsel had been appointed to represent him. No claim is raised that respondent's answers to Dr. Grigson's questions were "involuntary" in the normal sense of the word. Unlike the police officers in Miranda, Dr. Grigson was not questioning respondent in order to ascertain his guilt or innocence. Particularly since it is not necessary to decide this case, I would not extend the Miranda requirements to cover psychiatric examinations such as the one involved here.
1
This psychiatric evaluation was ordered even though defense counsel had not put into issue Smith's competency to stand trial or his sanity at the time of the offense. The trial judge later explained: "In all cases where the State has sought the death penalty, I have ordered a mental evaluation of the defendant to determine his competency to stand trial. I have done this for my benefit because I do not intend to be a participant in a case where the defendant receives the death penalty and his mental competency remains in doubt." App. A-117. See Tex.Code Crim.Proc.Ann., Art. 46.02 (Vernon 1979). No question as to the appropriateness of the trial judge's order for the examination has been raised by Smith.
2
Article 37.071(a) of the Tex.Code of Crim.Proc.Ann. (Vernon Supp. 1980) provides:
"Upon a finding that the defendant is guilty of a capital offense, the court shall conduct a separate sentencing proceeding to determine whether the defendant shall be sentenced to death or life imprisonment. The proceeding shall be conducted in the trial court before the trial jury as soon as practicable. In the proceeding, evidence may be presented as to any matter that the court deems relevant to sentence. This subsection shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or of the State of Texas. The state and the defendant or his counsel shall be permitted to present argument for or against sentence of death."
3
The other two issues are "whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result" and "if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased." Tex.Code Crim.Proc.Ann., Arts. 37.071(b)(1) and (3) (Vernon Supp. 1980).
4
It appears from the record that Smith's only prior criminal conviction was for the possession of marihuana. See App. A-64.
5
Defense counsel discovered the letter at some time after jury selection began in the case on March 11, 1974. The trial judge later explained that Dr. Grigson was "appointed by oral communication," that "[a] letter of appointment was not prepared," and that "the court records do not reflect [the entry of] a written order." Id., at A-118. The judge also stated:
"As best I recall, I informed John Simmons, the attorney for the defendant, that I had appointed Dr. Grigson to examine the defendant and that a written report was to be mailed to me." Ibid. However, defense counsel assert that the discovery of Dr. Grigson's letter served as their first notice that he had examined Smith. Id., at A-113, A-116.
On March 25, 1974, the day the trial began, defense counsel requested the issuance of a subpoena for the Dallas County Sheriff's records of Dr. Grigson's "visitation to . . . Smith." Id., at A-8.
6
Texas law does provide that "[n]o statement made by the defendant during the examination or hearing on his competency to stand trial may be admitted in evidence against the defendant on the issue of guilt in any criminal proceeding." Tex.Code Crim.Proc.Ann., Art. 46.023(g) (Vernon 1979) (emphasis added). See also 18 U.S.C. § 4244; Fed.Rule Crim.Proc. 12.2(c); United States v. Alvarez, 519 F.2d 1036, 1042-1044 (CA3 1975); Note, Requiring a Criminal Defendant to Submit to a Government Psychiatric Examination: An Invasion of the Privilege Against Self-Incrimination, 83 Harv.L.Rev. 648, 649, and cases cited at nn. 8-9 (1969).
7
The State conceded this at oral argument. Tr. of Oral Arg. 47, 49.
8
Although the Court of Appeals doubted the applicability of the Fifth Amendment if Dr. Grigson's diagnosis had been founded only on respondent's mannerisms, facial expressions, attention span, or speech patterns, 602 F.2d 694, 704 (CA5 1979), the record in this case sheds no light on whether such factors alone would enable a psychiatrist to predict future dangerousness. The American Psychiatric Association suggests, however, that "absent a defendant's willingness to cooperate as to the verbal content of his communications, . . . a psychiatric examination in these circumstances would be meaningless." Brief for American Psychiatric Association as Amicus Curiae 26 (emphasis in original).
9
On cross-examination, Dr. Grigson acknowledged that his findings were based on his "discussion" with respondent, App. A-32, and he replied to the question "[w]hat . . . was the most important thing that . . . caused you to think that [respondent] is a severe sociopath" as follows:
"He told me that this man named Moon looked as though he was going to reach for a gun, and he pointed his gun toward Mr. Moon's head, pulled the trigger, and it clicked—misfired, at which time he hollered at Howie, apparently his other partner there who had a gun, 'Watch out, Howie. He's got a gun.' Or something of that sort. At which point he told me—now, I don't know who shot this man, but he told me that Howie shot him, but then he walked around over this man who had been shot—didn't . . . check to see if he had a gun nor did he check to see if the man was alive or dead. Didn't call an ambulance, but simply found the gun further up underneath the counter and took the gun and the money. This is a very—sort of cold-blooded disregard for another human being's life. I think that his telling me this story and not saying, you know, 'Man, I would do anything to have that man back alive. I wish I hadn't just stepped over the body.' Or you know, 'I wish I had checked to see if he was all right' would indicate a concern, guilt, or remorse. But I get didn't get any of this." Id., at A-27—A-28.
10
On the same theory, the Court of Appeals here carefully left open "the possibility that a defendant who wishes to use psychiatric evidence in his own behalf [on the issue of future dangerousness] can be precluded from using it unless he is [also] willing to be examined by a psychiatrist nominated by the state." 602 F.2d, at 705.
11
While recognizing that attempts to coerce a defendant to submit to psychiatric inquiry on his future dangerousness might include the penalty of prosecutorial comment on his refusal to be examined, the Court of Appeals noted that making such a remark and allowing the jury to draw its own conclusions "might clash with [this Court's] insistence that capital sentencing procedures be unusually reliable." 602 F.2d, at 707. See also Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965).
12
For the reasons stated by the Court of Appeals, we reject the State's argument that respondent waived his Fifth Amendment claim by failing to make a timely, specific objection to Dr. Grigson's testimony at trial. See 602 F.2d, at 708, n. 19. In addition, we note that the State did not present the waiver argument in its petition for certiorari. See this Court's Rule 40(1)(d)(2) (1970).
13
Of course, we do not hold that the same Fifth Amendment concerns are necessarily presented by all types of interviews and examinations that might be ordered or relied upon to inform a sentencing determination.
14
Because psychiatric examinations of the type at issue here are conducted after adversary proceedings have been instituted, we are not concerned in this case with the limited right to the appointment and presence of counsel recognized as a Fifth Amendment safeguard in Miranda v. Arizona, 384 U.S. 436, 471-473, 86 S.Ct. 1602, 1626-1627, 16 L.Ed.2d 694 (1966). See Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378. Rather, the issue before us is whether a defendant's Sixth Amendment right to the assistance of counsel is abridged when the defendant is not given prior opportunity to consult with counsel about his participation in the psychiatric examination. But cf. n. 15, infra.
Respondent does not assert, and the Court of Appeals did not find, any constitutional right to have counsel actually present during the examination. In fact, the Court of Appeals recognized that "an attorney present during the psychiatric interview could contribute little and might seriously disrupt the examination." 602 F.2d at 708. Cf. Thornton v. Corcoran, 132 U.S.App.D.C. 232, 242, 248, 407 F.2d 695, 705, 711 (1969) (opinion concurring in part and dissenting in part).
15
It is not clear that defense counsel were even informed prior to the examination that Dr. Grigson had been appointed by the trial judge to determine respondent's competency to stand trial. See n. 5, supra.
16
We do not hold that respondent was precluded from waiving this constitutional right. Waivers of the assistance of counsel, however, "must not only be voluntary, but must also constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege, a matter which depends . . . 'upon the particular facts and circumstances surrounding [each] case. . . .' " Edwards v. Arizona, 451 U.S., at 482, 101 S.Ct., at 1883-1884, quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). No such waiver has been shown, or even alleged, here.
17
Because of our disposition of respondent's Fifth and Sixth Amendment claims, we need not reach the question of whether the failure to give advance notice of Dr. Grigson's appearance as a witness for the State deprived respondent of due process.
| 01
|
451 U.S. 493
101 S.Ct. 1889
68 L.Ed.2d 392
Leah Lynn Parrish WEBB, Petitioner,v.James Thomas WEBB.
No. 79-6853.
Argued March 23, 1981.
Decided May 18, 1981.
Syllabus
This case involves a custody dispute between the mother (petitioner) and father (respondent) of a minor child. A Florida state court awarded custody to petitioner. In a subsequently filed action, a Georgia state court awarded custody to respondent, and the Georgia Supreme Court affirmed. Petitioner then filed a petition for certiorari in this Court, raising the question whether Art. IV, § 1, of the Federal Constitution required Georgia to give full faith and credit to the Florida decree, and certiorari was granted.
Held: Where the record discloses that petitioner failed to raise her federal claim in the Georgia courts and that the Georgia Supreme Court failed to rule on a federal issue, this Court is without jurisdiction to decide that issue, and accordingly the writ of certiorari is dismissed. Pp. 494-502.
Certiorari dismissed. Reported below: 245 Ga. 650, 266 S.E.2d 463.
Mary R. Carden, Gainesville, Ga., for petitioner.
Manley F. Brown, Macon, Ga., for respondent.
Justice WHITE delivered the opinion of the Court.
1
This case involves a custody dispute between the mother and father of a minor child. Their dispute has reached this Court because the state courts of Florida and Georgia have reached conflicting results in assigning custody of the child.
2
On March 8, 1979, petitioner, the mother, filed an action in Florida state court seeking custody of her son. On April 18, 1979, the Florida court entered a judgment granting her custody. On March 23, 1979, respondent, the father, filed an action in Georgia state court also seeking custody. On June 21, 1979, he was awarded custody by the Georgia court. The Georgia Supreme Court affirmed that decision. 245 Ga. 650, 266 S.E.2d 463.
3
The mother then filed a petition for writ of certiorari in this Court, raising just one question: "Does Article IV, § 1 of the United States Constitution, demand that Georgia . . . give full faith and credit to a Florida decree rendered immediately prior to Georgia's acceptance of unqualified jurisdiction?" Petitioner alleged that she had properly raised this federal question in the Georgia courts. Respondent filed a brief in opposition to the petition for certiorari in which he argued that the Full Faith and Credit Clause must give way to the "best interests" of the child in a child custody proceeding.1 At no point in his brief in opposition did respondent dispute petitioner's contention that the federal issue had been properly raised below, nor did respondent contend that there was some other jurisdictional bar that would prevent this Court from reaching the question raised in the petition.
4
Under our Rule 19.1, we no longer require, and in fact disfavor, the filing of the lower court record prior to action by this Court on a petition for certiorari. We are, therefore, largely dependent upon the assertions made by the parties as to what that record will demonstrate concerning the manner in which a federal question was raised below. Because petitioner forthrightly asserted that the federal question had been raised and this assertion was not disputed by respondent, we assumed that there would be no jurisdictional problem in reaching the issue raised by the petition, and we granted certiorari.2 449 U.S. 819, 101 S.Ct. 70, 66 L.Ed.2d 21. It has become clear, however, that the federal question was not raised below and that we are without jurisdiction in this case. We must therefore dismiss without reaching the merits.
5
Because this case comes to this Court from a state court, the relevant jurisdictional statute is 28 U.S.C. § 1257. As applied to the circumstances of this case, that statute requires that in the state courts petitioner have "specially set up or claimed under the Constitution . . . of . . . the United States" that right which she now seeks to have this Court enforce. 28 U.S.C. § 1257(3). Similarly our Rule 21.1(h) requires the petitioner to "specify the stage in the proceedings, both in the court of the first instance and in the appellate court, at which the federal questions sought to be reviewed were raised; the method or manner of raising them and the way in which they were passed upon by the court." Our examination of the record convinces us that petitioner failed properly to raise or preserve a claim under the Full Faith and Credit Clause of the Federal Constitution in the Georgia courts.
6
We note first that nowhere in the opinion of the Georgia Supreme Court is any federal question mentioned, let alone expressly passed upon. Nor is any federal issue mentioned by the dissenting opinion in that court. This Court has frequently stated that when "the highest state court has failed to pass upon a federal question, it will be assumed that the omission was due to want of proper presentation in the state courts, unless the aggrieved party in this Court can affirmatively show the contrary." Street v. New York, 394 U.S. 576, 582, 89 S.Ct. 1354, 1360, 22 L.Ed.2d 572 (1969); see also Fuller v. Oregon, 417 U.S. 40, 50, n. 11, 94 S.Ct. 2116, 2123, n. 11, 40 L.Ed.2d 642 (1974); Chambers v. Mississippi, 410 U.S. 284, 290, n. 3, 93 S.Ct. 1038, 1043, n. 3, 35 L.Ed.2d 297 (1973); Bailey v. Anderson, 326 U.S. 203, 206-207, 66 S.Ct. 66, 68, 90 L.Ed. 3 (1945). Petitioner argues that the record of this case rebuts this assumption because it demonstrates that she did raise the federal question. Therefore, in her view the State Supreme Court must be understood as having implicitly rejected her federal claim.
7
Although petitioner did use the phrase "full faith and credit" at several points in the proceedings below, nowhere did she cite to the Federal Constitution or to any cases relying on the Full Faith and Credit Clause of the Federal Constitution. In her amended motion to dismiss in the Georgia trial court, petitioner added the following contention: "Plaintiff herein continues to act contrary to the order of the Superior Court of Berrine County, entered September 22, 1977, and also is acting in violation of the April 18, 1979, order of the circuit court of Alachua County, Florida . . . which order should be accorded full faith and credit by this court, as it was made pursuant to relevant Florida law, as stated above." Also, in petitioner's enumeration of errors to the Georgia Supreme Court, she stated that "the [c]ourt erred in failing to find a Florida decree of April 18, 1979, a valid order in a prior pending action, give such full faith and credit, enforce it by ordering Plaintiff to comply with it in all respects, and dismiss this action."3
8
It is a long-settled rule that the jurisdiction of this Court to re-examine the final judgment of a state court can arise only if the record as a whole shows either expressly or by clear implication that the federal claim was adequately presented in the state system. New York ex rel. Bryant v. Zimmerman, 278 U.S. 63, 67, 49 S.Ct. 61, 63, 73 L.Ed. 184 (1928); Oxley Stave Co. v. Butler County, 166 U.S. 648, 655, 17 S.Ct. 709, 711, 41 L.Ed. 1149 (1897). Petitioner argues that since the Georgia Constitution has no full faith and credit clause, there can be no doubt that the above references in the record were to the Federal Constitution and therefore that her federal claim was properly presented. See Tr. of Oral Arg. 4. We are unpersuaded. In fact, we find it far more likely that petitioner was referring to state law.
9
The Georgia Supreme Court understood this case to concern primarily the requirements of the Uniform Child Custody Jurisdiction Act: "This case calls for an interpretation of certain provisions of Georgia's Uniform Child Custody Jurisdiction Act, Code Ann. § 74-501 et seq." That Act has been adopted by both Georgia and Florida. Section 74-514 of that Act, as codified by Georgia, states:
10
"The courts of this State shall recognize and enforce an initial or modification decree of a court of another state which had assumed jurisdiction under statutory provisions substantially in accordance with this Chapter, or which was made under factual circumstances meeting the jurisdictional standards of the Chapter, so long as this decree has not been modified in accordance with jurisdictional standards substantially similar to those of this Chapter." Ga.Code § 74-514 (1979).
11
Interpreting the meaning of this section is obviously a matter of Georgia state law, but a litigant could plausibly refer to it as a statutory full faith and credit requirement. The record supports the view that it was so understood in this case, by both the courts and the parties.
12
At the trial court hearing, petitioner discussed the Florida decree but did not invoke the Full Faith and Credit Clause of the Federal Constitution. Rather, petitioner argued that in failing to make the Georgia court aware of the previous decree, respondent had violated the terms of the Uniform Child Custody Jurisdiction Act: "[W]hile all this was going on in Florida, [respondent] turned right around and filed an action here, never informed the [c]ourt here that he had done it; never made any of the disclosures that he's supposed to make under Georgia law [the Uniform Child Custody Jurisdiction Act], and never made any response to that whatsoever." Tr. 8. The appellate briefs of the parties to the Georgia Supreme Court similarly argued the application of the Act to the facts of this case. As noted above, the State Supreme Court apparently did not believe that any federal issue was presented. Finally, petitioner did not claim in her petition for rehearing before the Georgia Supreme Court that the court's failure to reach the federal claim, which petitioner now contends was raised before that court, was error. She did, however, argue that the failure of the Georgia courts to dismiss the action was error under the Act.4
13
We cannot conclude on this record that petitioner raised the federal claim that she now presents to this Court at any point in the state-court proceedings. Thus, we confront in this case the same problem that arose in Cardinale v. Louisiana, 394 U.S. 437, 438, 89 S.Ct. 1161, 1162, 22 L.Ed.2d 398 (1969): "Although certiorari was granted to consider this question, . . . the sole federal question argued here has never been raised, preserved, or passed upon in the state courts below." Citing a long history of cases, we stated there that "[t]he Court has consistently refused to decide federal constitutional issues raised here for the first time on review of state court decisions." Ibid. We have had several occasions to repeat this rule since then, Tacon v. Arizona, 410 U.S. 351, 352, 93 S.Ct. 998, 999, 35 L.Ed.2d 346 (1973); Moore v. Illinois, 408 U.S. 786, 799, 92 S.Ct. 2562, 2570, 33 L.Ed.2d 706 (1972); Stanley v. Illinois, 405 U.S. 645, 658, n. 10, 92 S.Ct. 1208, 1216, n. 10, 31 L.Ed.2d 551 (1972); Hill v. California, 401 U.S. 797, 91 S.Ct. 1106, 28 L.Ed.2d 484 (1971); University of California Regents v. Bakke, 438 U.S. 265, 283, 98 S.Ct. 2733, 2744, 57 L.Ed.2d 750 (1978) (opinion of POWELL, J.), and we see no reason to deviate from it now.
14
It is appropriate to emphasize again, see Cardinale v. Louisiana, supra, 394 U.S., at 439, 89 S.Ct., at 1163, that there are powerful policy considerations underlying the statutory requirement and our own rule that the federal challenge to a state statute or other official act be presented first to the state courts. These considerations strongly indicate that we should apply this general principle with sufficient rigor to make reasonably certain that we entertain cases from state courts only where the record clearly shows that the federal issue has been properly raised below.
15
In the first place, although the States are sovereign entities, they are bound along with their officials, including their judges, by the Constitution and the federal statutory law. Principles of comity in our federal system require that the state courts be afforded the opportunity to perform their duty, which includes responding to attacks on state authority based on the federal law, or, if the litigation is wholly private, construing and applying the applicable federal requirements. As the Court has elsewhere observed, this principal of comity requires
16
"a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways." Younger v. Harris, 401 U.S. 37, 44, 91 S.Ct. 746, 750, 27 L.Ed.2d 669 (1971).
17
The principal of comity that stands behind the "properly-raised-federal-question" doctrine is similar to the principle that stands behind the exhaustion-of-state-remedies doctrine applicable to federal habeas corpus review of the constitutional claims of state prisoners. We have described the latter doctrine as one based on "federal-state comity," Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971), and have described its function as reflecting
18
" 'an accommodation of our federal system designed to give the State the initial "opportunity to pass upon and correct" alleged violations of its prisoners' federal rights.' We have consistently adhered to this federal policy, for 'it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation.' " Ibid. (citations omitted).
19
There are also very practical reasons for insisting that federal issues be presented first in the state-court system. The requirement affords the parties the opportunity to develop the record necessary for adjudicating the issue. It permits the state courts to exercise their authority, which federal courts, including this one, do not have at least to the same extent, to construe state statutes so as to avoid or obviate federal constitutional challenges such as vagueness and overbreadth. The rule also insures that if there are independent and adequate state grounds that would pretermit the federal issue, they will be identified and acted upon in an authoritative manner. Finally, if the parties to state-court litigation are required to present their federal claims in the state tribunals in the first instance, those issues will be adjudicated in the state courts where necessary to dispose of the case. In most instances, such a judgment will be supported by an opinion that may well obviate any reason for our giving plenary consideration to the case. In terms of our own workload, this is a very substantial matter.
20
For all of these reasons, we, as well as litigants seeking to bring cases here from the state courts, should take care to comply with the jurisdictional statute and our rules. Although it would avoid uncertainty and the expenditure of much time and effort if litigants identified in the state courts precisely the provisions of the Federal Constitution or the federal statute on which they rely, we have not insisted on such inflexible specificity. The inevitable result is that at times there have been differences of opinion as to whether the state courts have been afforded a fair opportunity to address the federal question that is sought to be presented here.5 At the minimum, however, there should be no doubt from the record that a claim under a federal statute or the Federal Constitution was presented in the state courts and that those courts were apprised of the nature or substance of the federal claim at the time and in the manner required by the state law. Otherwise, we cannot be sufficiently sure, when the state court whose judgment is being reviewed has not addressed the federal question that is later presented here, that the issue was actually presented and silently resolved by the state court against the petitioner or the appellant in this Court.
21
Because petitioner failed to raise her federal claim in the state proceedings and the Georgia Supreme Court failed to rule on a federal issue, we conclude that we are without jurisdiction in this case. Accordingly, the writ is dismissed for want of jurisdiction.
22
So ordered.
23
Justice POWELL, with whom Justice BRENNAN joins, concurring.
24
I agree that the writ should be dismissed because petitioner did not raise her federal constitutional challenge in the Georgia courts. I join the Court's opinion with the understanding, however, that the broad statements in it are not to be taken as departing from the rule, reaffirmed just this Term, that the Court has jurisdiction to review plain error unchallenged in the state court when necessary to prevent fundamental unfairness. Wood v. Georgia, 450 U.S. 261, 265, n. 5, 101 S.Ct. 1097, 1100, n. 5, 67 L.Ed.2d 220 (1981). See also, Vachon v. New Hampshire, 414 U.S. 478, 94 S.Ct. 664, 38 L.Ed.2d 666 (1974) (finding plain error in an appeal from a state court).
25
Justice MARSHALL, dissenting in part.
26
I share the Court's concerns for comity and for careful pleadings. Nonetheless, I do not believe that either of these concerns justifies the Court's apparent conclusion that a petitioner who fails to cite the exact location of a federal constitutional provision has neglected to raise a claim on that ground.
27
The Court attempts to reason that the petitioner neglected to raise any claim under the Full Faith and Credit Clause of the Constitution. As the Court acknowledges, however, petitioner "did use the phrase 'full faith and credit' at several points in the proceedings below." Ante, at 496. Indeed, she asserted in her amended complaint that the decision of the Florida court "should be accorded full faith and credit" by the Georgia court, and reiterated this claim in her enumeration of errors to the Georgia Supreme Court. The Court tries to translate these words as references not to the identical language in the Federal Constitution, but instead to a provision of Georgia law which fails to mention any of the three words, "full," "faith," or "credit." See Ga.Code § 74-514 (1979), Uniform Child Custody Jurisdiction Act. The Georgia provision governs allocation of jurisdiction under the Uniform Child Custody Jurisdiction Act, which both Georgia and Florida have enacted as their own law. I fail to see how the interests of improved pleadings or comity are served by the Court's strained refusal to ascribe to petitioner's words their plain meaning.
28
It remains true that the Georgia Supreme Court neglected to pass on the import of the federal Full Faith and Credit Clause for this case. I would remand for such state review on that issue, rather than dismiss the writ and leave the decision below in place.
1
Respondent also argued that the Georgia court properly assumed jurisdiction under the Uniform Child Custody Jurisdiction Act. This is purely a question of state law not properly subject to review in this Court.
2
Because—as will be discussed infra—the federal issue was not addressed by the Georgia Supreme Court, it may have been better practice on our part to call for the record before acting on the petition for certiorari.
3
In petitioner's brief to the Georgia Supreme Court she devoted one sentence to this issue: "In such circumstances, Appellant asserts, the decree entered in Florida should have been recognized as a final order subject to full faith and credit." Brief for Respondent 3. This lower court brief is not a part of the record, but even if it were it would not suffice to establish that petitioner's claim was based on the Federal Constitution.
4
Even if, as a matter of federal law, petitioner had properly raised her federal question, we might still confront here an independent state procedural ground barring our consideration of the federal issue. Rule 45 of the Rules of the Georgia Supreme Court states: "Any enumerated error which is not supported by argument or citation of authority shall be deemed abandoned." Ga.Code § 24-4545 (Supp.1980). The Georgia court has held that failure to include citations of authority to support enumerated errors will bar review of those errors in the State Supreme Court. Watts v. Mitchell, 227 Ga. 247, 179 S.E.2d 774 (1971). The Georgia Supreme Court failed to discuss or even mention petitioner's full faith and credit claim. Petitioner has not demonstrated that the failure of the Georgia Supreme Court to reach the federal issue was not grounded on an application of this rule. Since we conclude that the federal claim was not properly presented, we need not reach any conclusion about application of this state-court rule.
5
See, e. g., Wood v. Georgia, 450 U.S. 261, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981); Vachon v. New Hampshire, 414 U.S. 478, 94 S.Ct. 664, 38 L.Ed.2d 666 (1974); Boynton v. Virginia, 364 U.S. 454, 81 S.Ct. 182, 5 L.Ed.2d 206 (1960); Bryant v. Zimmerman, 278 U.S. 63, 49 S.Ct. 61, 73 L.Ed. 184 (1928).
| 89
|
451 U.S. 596
101 S.Ct. 1945
68 L.Ed.2d 472
Frederico RODRIGUEZ, Luis Perez, and Srecko Barulec, Petitioners,v.COMPASS SHIPPING CO., LTD., et al.
No. 79-1977.
Argued Jan. 12, 1981.
Decided May 18, 1981.*
Rehearing Denied July 2, 1981.
See 453 U.S. 923, 101 S.Ct. 3160.
Syllabus
Section 33(b) of the Longshoremen's and Harbor Workers' Compensation Act provides that a longshoreman's acceptance, pursuant to an award in a compensation order, of compensation from his employer for injuries incurred in the course of employment "shall operate as an assignment to the employer of all right of the person entitled to compensation to recover damages against [a person other than the employer] unless [the longshoreman] shall commence an action against such third person within six months after such award." Petitioner longshoremen, who had been injured aboard ship in the course of their employment, accepted compensation under such an award from their respective stevedore employers. More than six months after the awards, each petitioner commenced an action in Federal District Court against the shipowner involved, alleging that the shipowner had negligently caused his injury. The District Courts granted summary judgments for the shipowners (respondents) on the ground that, because petitioners failed to bring suit within six months of the compensation awards, their causes of action had been assigned to their employers who thereafter had the exclusive right to pursue the third-party claims. The Court of Appeals affirmed.
Held : Section 33(b) precludes petitioners from pursuing their third-party claims against respondent shipowners. Pp. 602-618.
(a) The language of § 33(b) is both mandatory and unequivocal. The only conditions precedent to the statutory assignment are the acceptance of compensation pursuant to an award in a compensation order and the passage of the required 6-month period, both of which conditions were satisfied in these cases. When such assignment occurs, it transfers to the employer the employee's entire right to commence a third-party action, the words "all right" in § 33(b) precluding the possibility of only a partial assignment or concurrent rights in the employee and employer to sue in the postassignment period. Although petitioners' employers failed to pursue the assigned claims, the statute does not expressly require that they do so nor does it provide for relief to employees should the assigned claims lie dormant. Pp. 602-604.
(b) Nothing in the legislative history shows any intent by Congress to preserve the employee's right to commence a third-party suit after the 6-month period expires. To the contrary, the history indicates that once that period expires, the employer possesses complete control of third-party claims. Moreover, the history forecloses the argument that Congress did not intend an assignment of a third-party claim to be effective unless there was an absence of any potential conflict of interest between the assignee and the longshoreman. The simple standard set forth in § 33(b)—exclusive control of the cause of action in the employee for six months and in the employer thereafter protects the interests of both employees and employers and is consistent with the Act's general policy of encouraging the prompt and efficient administration of compensation claims. Pp. 604-612.
(c) There is no evidence that Congress gave the employee the right or procedural mechanism, after assignment, to compel the assignee either to bring a third-party suit or to reassign the cause of action to the employee in response to a formal request to do so. And Congress' failure to amend § 33(b) in 1972, when the Act was thoroughly reexamined, does not evidence congressional approval of a Court of Appeals' decision holding that, notwithstanding § 33(b), a longshoreman who has accepted compensation under an award may maintain a third-party action whenever it becomes evident that his employer has no intention to file suit on the assigned claim. Such legislative inaction does not modify the plain terms of § 33(b). Pp. 612-617.
617 F.2d 955 and 622 F.2d 572 and 575, affirmed.
Martin Lassoff, New York City, for petitioners.
Joseph T. Stearns and Francis X. Byrn, New York City, for respondents.
Justice STEVENS delivered the opinion of the Court.
1
The question presented in these three cases1 is whether a longshoreman may prosecute a personal injury action against a negligent shipowner after his right to recover damages has been assigned to his employer by operation of § 33(b) of the Longshoremen's and Harbor Workers' Compensation Act (Act), 33 U.S.C. § 901 et seq.2
2
Each petitioner is a longshoreman who was injured aboard ship in the regular course of his employment. Each asserted a claim for compensation against the stevedore by whom he was employed. Each accepted compensation from his employer pursuant to an award in a compensation order.3 More than six months later,4 each commenced an action against the shipowner alleging that the defendant had negligently caused his injury.5 The District Courts granted motions for summary judgment filed by the respondent shipowners on the ground that, by reason of the longshoremen's failure to bring suit within six months, their causes of action had been assigned to the stevedores who thereafter had the exclusive right to pursue the third-party claims.6 The Court of Appeals for the Second Circuit affirmed, 617 F.2d 955 (1980); 622 F.2d 572 and 575 (1980),7 and we granted certiorari to resolve the conflict with the contrary holding of the Court of Appeals for the Fourth Circuit in Caldwell v. Ogden Sea Transport, Inc., 618 F.2d 1037 (1980). 449 U.S. 818, 101 S.Ct. 69, 66 L.Ed.2d 20.8
3
There is no dispute about the parties' respective interests in either (a) a claim asserted by a longshoreman against a shipowner within the 6-month period following acceptance of a compensation award, or (b) a claim asserted by the stevedore against the shipowner after the 6-month period has elapsed. In the former situation, the longshoreman has exclusive control of the action; any recovery in excess of the amount required to pay the cost of litigation and to reimburse the employer for the statutory compensation paid pursuant to the award belongs entirely to the longshoreman.9 In the latter situation, the stevedore has exclusive control of the litigation; any net recovery—after the compensation award and the litigation costs have been recouped—must be shared 80% by the longshoreman and 20% by the employer.10 The question presented by these cases is what right, if any, the longshoreman has against the third-party shipowner if he does not sue within the 6-month period and the employer fails to do so thereafter. Both the plain language of the statute and the history of its amendments dictate the same answer.
4
* Even though the language of § 33(b) is simple and direct, it is appropriate to begin by quoting our description last Term of the context in which it appears:
5
"The Act provides a comprehensive scheme governing an injured longshoreman's rights against the stevedore and shipowner. The longshoreman is not required to make an election between the receipt of compensation and a damages action against a third person, 33 U.S.C. § 933(a). After receiving a compensation award from the stevedore, the longshoreman is given six months within which to bring suit against the third party. 33 U.S.C. § 933(b). If he fails to seek relief within that period, the acceptance of the compensation award operates as an assignment to the stevedore of the longshoreman's rights against the third party." Bloomer v. Liberty Mutual Ins. Co., 445 U.S. 74, 77-78, 100 S.Ct. 925, 927-928, 63 L.Ed.2d 215.
6
As is apparent, § 33(b) plays a central role in this comprehensive legislative scheme.
7
The language of § 33(b) is both mandatory and unequivocal. It provides that the acceptance of compensation under an award "shall operate as an assignment to the employer of all right of the person entitled to compensation to recover damages against such third person unless such person shall commence an action against such third person within six months after such award." 33 U.S.C. § 933(b) (emphasis supplied).11
8
The only conditions precedent to the statutory assignment are the acceptance of compensation pursuant to an award in a compensation order and the passage of the required period of six months. These conditions are admittedly satisfied in these cases.12 The statutory assignment encompasses "all right" of the employee to recover damages from a third party. These words preclude the possibility that the assignment is only a partial one that does not entirely divest the employee of his right to sue, or that the employee and the employer possess concurrent rights to sue in the post-assignment period. When the § 33(b) assignment occurs, it transfers the employee's entire right to commence a third-party action to the employer.
9
Application of this plain statutory language to the undisputed facts in these cases leads to the conclusion that petitioners may not pursue their claims for damages against the respondent shipowners. Petitioners filed these actions well beyond the 6-month period following acceptance of compensation, and offered no excuse for their delay. Although their employers failed to pursue the assigned claims, the statute does not expressly require that employers pursue third-party claims, nor does it provide for relief to employees should the assigned claims lie dormant. Therefore, petitioners appear to be without a cause of action under the statute.
10
In an attempt to avoid the conclusion mandated by its plain language, petitioners contend that the Act should be construed either to include an unexpressed condition precedent to any effective assignment—namely, the absence of any possible conflict of interest between the employer-stevedore and the employee—or to grant the employee an implicit right to have the third-party claim reassigned if the employer fails to sue. Normally, these contentions would be foreclosed by the lack of any ambiguity in the statutory language. But the statutory language was also unambiguous in 1956 when this Court held in Czaplicki v. The Hoegh Silvercloud, 351 U.S. 525, 76 S.Ct. 946, 100 L.Ed. 1387, that § 33(b) contained a limited exception. It therefore is appropriate to evaluate petitioners' contentions in the light of the relevant legislative history. In making this evaluation, however, we adhere to the rule that, "[a]bsent a clearly expressed legislative intention to the contrary, [the statutory] language must ordinarily be regarded as conclusive." Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766.
II
11
As originally enacted in 1927, the Act gave an injured longshoreman the right to elect between the certain recovery of compensation from his employer without any proof of fault, or the less certain, but probably more generous, remedy of an action for damages against a negligent third party.13 The employee's election to accept compensation under the Act effected an immediate assignment to his employer of his cause of action for negligence.14 Under the original Act, the longshoreman could pursue either remedy but not both, and nothing more than the acceptance of compensation was required to evidence the employee's election. See, e. g., Toomey v. Waterman S. S. Corp., 123 F.2d 718, 721 (CA2 1941).
12
In 1938, Congress amended the Act to provide that the acceptance of compensation would operate as an assignment only if the payment was "under an award in a compensation order filed by the deputy commissioner."15 This procedural change was designed to protect the employee from the harsh consequences of an improvident election.16 Although Congress thereby reduced the danger that an employee would make an election without being advised about its consequences, the 1938 amendment did nothing to mitigate those consequences once the election was made.
13
In 1956, this Court held that an injured longshoreman could enforce his right of action against a third party, notwithstanding his acceptance of compensation from his employer. Czaplicki v. The Hoegh Silvercloud, supra.17 In that case, both the employer and the third party allegedly responsible for the unseaworthy condition that had caused the employee's injury were insured by the Travelers Insurance Co. Because the stevedore had no interest in recovering the compensation payments that had been made by its insurance carrier,18 and because that carrier would be responsible for both prosecuting and defending any third-party claim, no one other than the injured longshoreman had a sufficient interest in the claim to bring suit. Because of the conflict between the assignee's interest and the interest of the employee, the Court construed the Act to allow the longshoreman to enforce the third-party claim in his own name.19 The Court did not hold that no assignment had occurred; rather, it held that under "the peculiar facts" of the case, the election and consequent assignment did not bar the employee's action.20
14
Two years after Czaplicki, in Johnson v. Sword Line, Inc., 257 F.2d 541 (1958), the Court of Appeals for the Third Circuit held that a different sort of conflict of interest would also preserve the longshoreman's right to sue a third party after accepting compensation from his employer. This Court had previously held, in Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133, that a shipowner who was liable to a longshoreman could assert a claim for indemnity against the employer-stevedore. That holding inevitably created a conflict between the stevedore's interest in recouping the compensation awarded to the longshoreman and its interest in avoiding the risk of a substantially larger liability as an indemnitor. The Court of Appeals reasoned that the stevedore's potential liability under the indemnity claim authorized by Ryan Stevedoring had the practical effect of enlarging the conflict-of-interest rationale of Czaplicki, which had narrowly rested on the peculiar facts of that case, to encompass substantially every case in which a stevedore failed to bring a third-party action.21 Accordingly, the court concluded that a conflict of interest could be presumed to exist whenever the statutory assignee failed to pursue or to reassign the assigned claim, unless that claim was obviously lacking in merit. See 257 F.2d, at 544-546.22
15
The impact of Ryan Stevedoring upon third-party claims assigned to employers by operation of § 33(b) was brought to the attention of Congress as well. In 1956, a House Subcommittee conducted hearings on proposed legislation that ultimately evolved into the 1959 amendments to the Act.23 One of the bills considered by the Subcommittee was H.R.5357, which provided, among other things, that an employee could commence a third-party suit within six months after accepting compensation, and that an employer who successfully pursued an assigned third-party claim was entitled to keep one-third of any net recovery. As explained by Congressman Zelenko, the bill's author, these provisions were designed to mitigate the problems identified in Justice Black's dissenting opinion in Ryan Stevedoring.24 Other witnesses appearing before the Subcommittee also expressed concern about the conflict-of-interest problem created by Ryan Stevedoring and endorsed H.R.5357 as an effective solution to that problem.25
16
In 1959, Congress acted to remedy the problems created by the potential conflict between the interests of the employer and the employee in prosecuting third-party claims.26 Its solution was not to create or to define an exception to the assignment by operation of law. Rather, Congress substantially adopted the central provisions of the Zelenko bill by amending § 33(b) to postpone the assignment by operation of law until six months after the acceptance of compensation under an award, and by amending § 33(e) to allow an employer to retain one-fifth of the net proceeds of its successful third-party action.27 The effect of the 6-month provision, of course, was to give the longshoreman an unqualified right to bring a third-party action during the 6-month period. If his financial circumstances made it imperative that he accept a prompt settlement of his compensation claim, he could do so without forfeiting his right to seek a more liberal recovery from a responsible third party. Moreover, by bringing his own action, the longshoreman could avoid the risk that his employer's potential conflict of interest—or possibly erroneous evaluation of the merits of the claim—might result in its abandonment.28 The amendment to § 33(e) provided an additional incentive to the employer to sue after assignment of the claim by giving him a share in any excess recovery.
17
Nothing in the 1959 amendments purports to preserve the employee's right to commence a third-party suit after the 6-month period expires. Although the amendments encourage employers to pursue assigned claims, they do not qualify the assignee's control of the cause of action after the assignment takes place. To the contrary, the legislative history indicates that once the 6-month period expires, the employer possesses complete control of third-party claims.29
18
This history forecloses the argument that Congress did not intend an assignment of a third-party claim to be effective unless there was an absence of any potential conflict of interest between the assignee and the longshoreman. The statutory language provides a different and clearly defined solution to the conflict-of-interest problem that had been created by Ryan Stevedoring.30 Congress unequivocally made the choice in favor of first giving the employee exclusive control of the cause of action for a 6-month period and then giving the employer exclusive control thereafter, instead of opting for any form of simultaneous joint or partial control. The simple standard set forth in § 33(b) protects the interests of both employees and employers, and is consistent with the general policy of the Act to encourage the prompt and efficient administration of compensation claims. See Potomac Electric Power Co. v. Director, Office of Workers' Compensation Programs, 449 U.S. 268, 282, 101 S.Ct. 509, 517, 66 L.Ed.2d 446.
III
19
Although the assignment at the end of the 6-month period occurs automatically, the Court of Appeals for the Fourth Circuit has held that the employee retains a right after assignment to compel the assignee either to bring a third-party suit or to reassign the cause of action to the employee in response to a formal request to do so. See Caldwell v. Ogden Sea Transport, Inc., 618 F.2d 1037 (1980). The court "readily found" the procedural mechanism for implementing this nonstatutory right to a reassignment, id., at 1046, but we find no evidence that Congress created either the substantive right itself or the procedural rights that the court discerned.
20
The predicate for the Fourth Circuit's analysis was an assumption that Congress did not intend to allow the longshoreman to lose his rights against a third party simply because (a) he failed to take any action within six months and (b) his employer decided not to sue the third party thereafter.31 To avoid the "practical problem" presented in such a situation, the court fashioned a "solution" that the Act "does not specifically provide." Id., at 1045. We are persuaded that the reason Congress did not specifically provide the solution which the court readily found is that Congress did indeed intend to require the employee either to act promptly or to accept the consequences of an assignment of his claim to the employer.32 One of the consequences of such an assignment is the risk that the employer will choose not to sue. The comprehensive character of the procedures outlined in the Act precludes the fashioning of an entirely new set of remedies to deal with an aspect of a problem that Congress expressly addressed.33 The fact that parties sometimes fail to assert meritorious claims within the period authorized by law is not a sufficient reason for refusing to enforce an unequivocal statutory bar.
IV
21
Finally, relying upon Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 99 S.Ct. 2753, 61 L.Ed.2d 521, petitioners argue that Congress' failure to amend § 33(b) in 1972, when the Act was thoroughly re-examined, evidences implicit congressional approval of the decision of the Court of Appeals for the District of Columbia Circuit in Potomac Electric Power Co. v. Wynn, 120 U.S.App.D.C. 13, 343 F.2d 295 (1965) (per curiam ). In that case, the court held that a longshoreman who has accepted compensation under an award may maintain a third-party action whenever it becomes evident that his employer has no intention to file suit on the assigned claim. Id., at 16, 343 F.2d, at 298. See also Joyner v. F & B Enterprises, Inc., 145 U.S.App.D.C. 262, 264, 448 F.2d 1185, 1187 (1971). The court construed the 1959 amendments as enlarging the employee's protection, and considered the rationale of Czaplicki to apply whenever a potential conflict of interest is present. In its judgment, the employer's failure to sue was sufficient evidence of a conflict to justify an independent action by the employee, notwithstanding the assignment provisions in the Act.34 120 U.S.App.D.C., at 16, 343 F.2d, at 298.
22
For reasons already stated, we are satisfied that that opinion did not correctly construe the 1959 amendments.35 It is true that Congress did not expressly disclaim that case in 1972, but that legislative inaction does not modify the plain terms of the 1959 amendments. Nor did Congress expressly endorse the Wynn decision. More importantly, the statutory interpretation announced in Wynn can hardly be compared to the well-established rule of maritime law at issue in Edmonds. There is no reason to believe that "Congress has relied upon conditions" that Wynn created. Edmonds, supra, at 273, 99 S.Ct., at 2763.36 In fact, the statutory changes adopted in 1972 are entirely consistent with our interpretation of § 33(b). Moreover, those changes remind us that one of the purposes of the Act is to minimize the need for litigation as a means of providing compensation for injured workmen. SeeBloomer, 445 U.S., at 86, 100 S.Ct., at 932.
23
Three of the 1972 Amendments are pertinent. First, the level of benefits was substantially increased, thereby increasing the likelihood that the statutory compensation recoverable without proof of fault would be adequate.37 Second, the shipowner's right to seek indemnity from the stevedore under Ryan Stevedoring was eliminated, thereby removing a category of litigation from the courts, placing more definite limits on the stevedore's insurance costs, and removing a potential source of conflict between the interests of employers and employees.38 Third, the shipowner's nearly absolute liability for unseaworthiness was eliminated, thereby further narrowing the area of potential litigation and increasing the relative importance of statutory awards as the favored method of compensation.39 See generally Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 164-165, 101 S.Ct. 1614, 1620-1621, 68 L.Ed.2d 1. In making these changes, Congress necessarily balanced the conflicting interests of the vessel owner, the stevedore, and the longshoreman. As with other problems of interpreting the intent of Congress in fashioning various details of this legislative compromise, the wisest course is to adhere closely to what Congress has written.40 The meaning of § 33(b) is plain and should be respected.
V
24
In sum, we conclude that the Court of Appeals in these cases correctly held that § 33(b) precludes petitioners from pursuing their third-party claims. Whatever the continued validity of our decision in Czaplicki, a question we need not and do not decide today,41 these cases do not involve "the peculiar facts" on which Czaplicki was based. Rather, petitioners essentially have relied upon conflicts inherent in the statutory scheme and in the relationships among longshoremen, stevedores, and shipowners. The notion adopted in some post-Czaplicki decisions that a conflict of interest may be presumed whenever an employer does not sue on an assigned claim is simply untenable in light of the plain statutory language and the history of the 1959 and 1972 Amendments. We leave for another day the question whether an assignment under § 33(b) will bar a longshoreman's third-party action if there is specific evidence of a serious conflict of interest Congress could not have foreseen when it enacted and amended § 33.
The judgments of the Court of Appeals are
25
Affirmed.
*
Together with Perez v. Arya National Shipping Line, Ltd., and Barulec v. Ove Skou, R. A., also on certiorari to the same court (see this Court's Rule 19.4).
1
Although a single petition for certiorari was filed on behalf of the three petitioners, their lawsuits proceeded independently of one another at earlier stages of the litigation. Three separate District Court opinions were issued. See Rodriguez v. Compass Shipping Co., 456 F.Supp. 1014 (SDNY 1978); Perez v. Arya National Shipping Line, Ltd., 468 F.Supp. 799 (SDNY 1979); Barulec v. Ove Skou, R. A., 471 F.Supp. 358 (SDNY 1979). The Court of Appeals affirmed the decision in Rodriguez in a published opinion, 617 F.2d 955 (1980), and on the same day affirmed the Perez and Barulec decisions in unpublished orders citing its opinion in Rodriguez. See Barulec v. Ove Skou, R. A., 622 F.2d 572 (1980); Perez v. Arya National Shipping Line, Ltd., 622 F.2d 575 (1980).
2
Section 33(b) of the Act provides:
"Acceptance of such compensation under an award in a compensation order filed by the deputy commissioner or [Benefits Review] Board shall operate as an assignment to the employer of all right of the person entitled to compensation to recover damages against such third person unless such person shall commence an action against such third person within six months after such award." 44 Stat. (part 2) 1440, as amended, 33 U.S.C. § 933(b).
3
In the Rodriguez and Barulec cases, the plaintiffs and their employers agreed to settlements in informal conferences convened by the Office of Workers' Compensation Programs. Although a since-amended regulation required that such settlements be embodied in formal compensation orders, see 20 CFR § 702.315(a) (1976), no formal orders were entered in these cases. Accordingly, the plaintiffs argued in the lower courts that the assignment provision of § 33(b) had not been activated because they had not accepted "compensation under an award in a compensation order filed by the deputy commissioner or Board," as required by the statute. The District Courts rejected petitioners' argument, concluding that settlement agreements reached after official informal conferences were equivalent to formal orders for purposes of § 33(b). See Rodriguez, supra, at 1018-1020; Barulec, 471 F.Supp., at 360-362. The Court of Appeals agreed. See 617 F.2d, at 958-960. Although petitioners challenged this ruling in their petition for certiorari, our order granting the petition did not extend to this question. 449 U.S. 818, 101 S.Ct. 69, 66 L.Ed.2d 20. Accordingly, for purposes of our decision, we assume that their acceptance of compensation operated as an assignment under § 33(b). Petitioner Perez apparently did not contend below that he had not accepted "compensation under an award" within the meaning of § 33(b). See 468 F.Supp. 799 (SDNY 1979).
4
Rodriguez filed suit approximately 32 months, Perez filed suit approximately 15 months, and Barulec filed suit approximately 1 year after accepting compensation. See 617 F.2d, at 957; Perez, 468 F.Supp., at 800; Barulec, 471 F.Supp., at 359.
5
The Act expressly provides that the employee is not required to elect between his right to compensation from his employer and his claim for damages against a third party. Section 33(a), as set forth in 33 U.S.C. § 933(a), provides:
"If on account of a disability or death for which compensation is payable under this chapter the person entitled to such compensation determines that some person other than the employer or a person or persons in his employ is liable in damages, he need not elect whether to receive such compensation or to recover damages against such third person."
Section 5(b) of the Act, as set forth in 33 U.S.C. § 905(b), provides:
"In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 933 of this title, and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void. If such person was employed by the vessel to provide stevedoring services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing stevedoring services to the vessel. If such person was employed by the vessel to provide ship building or repair services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing ship building or repair services to the vessel. The liability of the vessel under this subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred. The remedy provided in this subsection shall be exclusive of all other remedies against the vessel except remedies available under this chapter."
6
In all three cases, although the District Courts rejected the contention that a stevedore's failure to pursue an assigned claim, without more, establishes a conflict of interest resulting in reassignment of the claim to the longshoreman, the plaintiffs were given an opportunity to present evidence establishing a specific conflict of interest, such as that found in Czaplicki v. The Hoegh Silvercloud, 351 U.S. 525, 76 S.Ct. 946, 100 L.Ed. 1387. See Rodriguez, supra, at 1023; Perez, 468 F.Supp., at 801; Barulec, 471 F.Supp., at 362. Despite the opportunity to pursue further discovery, none of the plaintiffs was able to present evidence supporting his conflict-of-interest allegation, and the District Courts accordingly entered summary judgment in favor of the shipowners.
7
See n. 1, supra.
8
The Fourth Circuit issued its opinion in Caldwell eight days after the Rodriguez opinion was issued by the Second Circuit.
9
Section 33(f) of the Act, as set forth in 33 U.S.C. § 933(f), provides:
"If the person entitled to compensation institutes proceedings within the period prescribed in subdivision (b) of this section the employer shall be required to pay as compensation under this chapter a sum equal to the excess of the amount which the Secretary determines is payable on account of such injury or death over the amount recovered against such third person."
10
Section 33(e) of the Act, as set forth in 33 U.S.C. § 933(e), provides:
"Any amount recovered by such employer on account of such assignment, whether or not as the result of a compromise, shall be distributed as follows:
"(1) The employer shall retain an amount equal to—
"(A) the expenses incurred by him in respect to such proceedings or compromise (including a reasonable attorney's fee as determined by the deputy commissioner or Board);
"(B) the cost of all benefits actually furnished by him to the employee under section 907 of this title;
"(C) all amounts paid as compensation;
"(D) the present value of all amounts thereafter payable as compensation, such present value to be computed in accordance with a schedule prepared by the Secretary, and the present value of the cost of all benefits thereafter to be furnished under section 907 of this title, to be estimated by the deputy commissioner, and the amounts so computed and estimated to be retained by the employer as a trust fund to pay such compensation and the cost of such benefits as they become due, and to pay any sum finally remaining in excess thereof to the person entitled to compensation or to the representative; and
"(2) The employer shall pay any excess to the person entitled to compensation or to the representative, less one-fifth of such excess which shall belong to the employer."
11
In Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 269, 99 S.Ct. 2753, 2761, 61 L.Ed.2d 521, we described § 33(b):
"Under § 933(b), an administrative order for benefits operates as an assignment to the stevedore-employer of the longshoreman's rights against the third party unless the longshoreman sues within six months."
12
See nn. 3, 4, supra.
13
As originally enacted, and until 1959, § 33(a) read:
"If on account of a disability or death for which compensation is payable under this Act the person entitled to such compensation determines that some person other than the employer is liable in damages, he may elect, by giving notice to the deputy commissioner in such manner as the commission may provide, to receive such compensation or to recover damages against such third person." 44 Stat. (part 2) 1440.
14
The original § 33(b) provided:
"Acceptance of such compensation shall operate as an assignment to the employer of all right of the person entitled to compensation to recover damages against such third person, whether or not the person entitled to compensation has notified the deputy commissioner of his election." 44 Stat. (part 2) 1440.
15
From 1938 until 1959, § 33(b) provided:
"Acceptance of such compensation under an award in a compensation order filed by the deputy commissioner shall operate as an assignment to the employer of all right of the person entitled to compensation to recover damages against such third person." 52 Stat. 1168.
16
The amendment's purpose was explained in the House Report:
"The purpose of this amendment is to remove possible cause of complaint regarding the operation of the provision in subdivision (b) of section 33 in making the mere acceptance of compensation work automatically an assignment to the employer of all rights of action against the third party tort feasor. Acceptance of compensation without knowledge of the effect upon such rights may work grave injustice. The assignment of this right of action against the third party might properly be contingent upon the acceptance of compensation under an award in a compensation order issued by the deputy commissioner, thus giving opportunity to the injured person . . . to consider the acceptance of compensation from the employer with the resulting loss of right to bring suit in damages against the third party, or a refusal of compensation so as to pursue the remedy against the third party alleged to be liable for the injury." H.R.Rep.No.1945, 75th Cong., 3d Sess., 9 (1938).
See also Hernandez v. Costa Armatori, S. p. A., 467 F.Supp. 1064, 1066 (EDNY 1979), affirmance order, 622 F.2d 573 (CA2 1980).
17
In the interim between the 1938 amendment and the decision in Czaplicki, this Court issued two decisions of some significance to the present case. In 1946, in Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099, the Court concluded that an injured longshoreman could pursue a third-party claim against a shipowner for unseaworthiness, as well as for negligence. In 1956, in Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133, the Court held that a shipowner found liable to a longshoreman for damages in a third-party action could seek indemnification from the stevedore based upon the stevedore's contractual duty to provide workmanlike service. Congress in 1972 overruled both Sieracki and Ryan Stevedoring. See Edmonds v. Compagnie Generale Transatlantique, 443 U.S., at 262, 99 S.Ct., at 2757.
18
Section 33(i) of the Act as it read in 1956 provided that a stevedore's compensation insurer was subrogated to the stevedore's rights in the assigned claim. "Travelers, therefore, was the proper party to sue on those rights of action." 351 U.S., at 529, 76 S.Ct., at 948. The subrogation provision is now § 33(h), 33 U.S.C. § 933(h).
19
The Court explained its reasoning in detail:
"[T]he injured employee has an interest in his right of action even after it has been assigned. Normally, this interest will not be inconsistent with that of the assignee, for presumably the assignee will want to recoup the payments made to the employee. Since the assignee's right to recoup comes before the employee's interest, and because the assignee is likely to be in a better position to prosecute any claims against a third party, control over the right of action is given to the assignee, who can either institute proceedings for the recovery of damages against a third person, 'or may compromise with such third person either without or after instituting such proceeding.' § 33(d), 33 U.S.C. § 933(d). In giving the assignee exclusive control over the right of action, however, we think that the statute presupposes that the assignee's interests will not be in conflict with those of the employee, and that through action of the assignee the employee will obtain his share of the proceeds of the right of action, if there is a recovery. Here, where there is such a conflict of interests, the inaction of the assignee operates to defeat the employee's interest in any possible recovery. Since an action by Travelers would, in effect, be an action against itself, Czaplicki is the only person with sufficient adverse interest to bring suit. In this circumstance, we think the statute should be construed to allow Czaplicki to enforce, in his own name, the rights of action that were his originally." 351 U.S., at 531, 76 S.Ct., at 950.
20
At several points in the Czaplicki opinion, the Court emphasized the limited nature of its holding:
"Czaplicki's rights of action were held by the party most likely to suffer were the rights of action to be successfully enforced. In these circumstances, we cannot agree that Czaplicki is precluded by the assignment of his rights of action from enforcing those rights in an action brought by himself." Id., at 530, 76 S.Ct., at 949.
"Respondents contend that since Czaplicki did not, under § 33(a), 33 U.S.C. § 933(a), elect to proceed against third parties, but rather chose to accept compensation, he can in no event revoke this election and maintain this suit. But, as this Court has already pointed out, 'election not to sue a third party and assignment of the cause of action are two sides of the same coin.' American Stevedores, Inc. v. Porello, 330 U.S. 446, 455, 67 S.Ct. 847, 852, 91 L.Ed. 1011. Czaplicki can bring suit not because there has been no assignment, but because in the peculiar facts here there is no other procedure by which he can secure his statutory share in the proceeds, if any, of his right of action. For the same reason, we hold that the election to accept compensation, as a step toward the compensation award, does not bar this suit." Id., at 532-533, 76 S.Ct., at 950-951.
21
The Court of Appeals explained the conflict created by Ryan Stevedoring:
"Since any recovery by the injured employee against the shipowner could be recouped in an action by the shipowner against the stevedoring company, the practical effect of the Ryan case is to cause the employer-stevedoring companies, who may anticipate a shipowner's claim to indemnity to resist the making of any payment to the injured stevedore until an award is made, at which time assignment of the cause of action by reason of the provisions of the statute takes place. When the statutory assignment has taken place the employer-stevedoring company will then refuse to bring an action against the shipowner, and by the same token would also refuse to reassign the cause of action to the injured stevedore, for to do so might result in an eventual high award by way of indemnification against the stevedoring company and hence against the insurance carrier." 257 F.2d., at 545.
The Court of Appeals essentially articulated in greater detail a concern expressed by Justice Black in his dissenting opinion in Ryan Stevedoring:
"The employer as an assignee of an employee's claim will know that if he wins a lawsuit, he loses a lawsuit." 350 U.S., at 145, 76 S.Ct., at 243.
22
Cf. Di Somma v. N. V. Koninklyke Nederlandsche Stoomboot, 188 F.Supp. 292 (SDNY 1960). This expansion of Czaplicki was not, however, uniformly accepted by all federal courts. Other courts rejected a broad reading of Czaplicki and limited the conflict-of-interest exception to the peculiar situation presented in that case. See, e. g., Sabol v. Merritt Chapman & Scott Corp., 241 F.2d 765 (CA2 1957).
23
See Hearings before a Special Subcommittee of the House Committee on Education and Labor on Bills Relating to the Longshoremen's and Harbor Workers' Compensation Act, 84th Cong., 2d Sess. (May 23, 24, and June 11, 1956) (House Hearings).
24
Congressman Zelenko opened his testimony by inserting into the record a copy of the Ryan Stevedoring decision, which he asserted "endangered or seriously weakened" the right of longshoremen to recover from third parties. See House Hearings, at 1. Congressman Zelenko indicated that Justice Black's dissent accurately summarized the damaging effects of that decision. Id., at 12. He went on to explain:
"H.R.5357 avoids and eliminates the circumstances indicated by Judge Black where to the detriment of the employee, the employer under the present section and by reason of the Ryan decision may decide not to proceed with the third-party action." Ibid.
Later, in response to questioning by members of the Subcommittee, Congressman Zelenko explained the connection between H.R.5357 and Ryan Stevedoring in more detail:
"I hope I have answered your question by trying to show what the situation in the Ryan case would be. That is the factual and the legal situation, and assuming we had the Ryan case pending at this time, the employer would lose any interest in proceeding with it, and the longshoreman would suffer. That is what Judge Black was talking about. Under H.R.5357 both parties go in there and if the longshoreman chooses to go ahead, he does so; and if he does not go ahead, the employer starts a lawsuit in his own behalf only after the longshoreman has had the opportunity to do so, and he does not want to avail himself of it, then they give the employer this right of assignment automatically, so he gets the same measure of protection." House Hearings, at 15.
The Zelenko bill also provided an added incentive for employers to sue by giving them one-third of any excess recovery. See, e. g., id., at 12-13, 19, 43-44, 102.
25
See, e. g., id., at 28, 44-45, 61-62, 72, 103-105, 106-107, 110, 115, 124-125. Cf. id., at 83-84, 92-93. It should be noted that at the time of these hearings Czaplicki was pending before this Court. Czaplicki's attorneys participated in the hearings, and described to the Subcommittee the facts of Czaplicki and the Court of Appeals' decision in that case. They also informed the Subcommittee that this Court had granted Czaplicki's petition for certiorari, and that the case had been argued. See House Hearings, at 59, 62.
26
The House Report on a predecessor of the bill that amended § 33(b) in 1959 stated:
"Developments under the act which concerned the Subcommittee on Safety and Compensation have been . . . the automatic assignment of a third-party cause of action to the employer and the refusal by the employer to pursue the third-party claim because of a conflict of interest . . . ." H.R.Rep.No.229, 86th Cong., 1st Sess., 3 (1959).
27
At the same time, Congress amended § 33(a) to provide expressly that the employee need not elect between his statutory right to compensation from his employer and his claim against a third party. See n. 5, supra.
28
The Senate Report contained the following evaluation of the bill amending § 33(b):
"The bill as amended by the committee would revise section 33 of the act so as to permit an employee to bring a third-party liability suit without forfeiting his right to compensation under the act. . . . The committee believe that in theory and practice this is [a] sound approach to what has been a difficult problem. As embodied in the committee amendment, the principle would be applied with due recognition of the equities and rights of all who are involved.
". . . In the event that an employee does not elect to sue for damages within 6 months of the compensation award the employer is assigned the cause of action." S.Rep.No.428, 86th Cong., 1st Sess., 2 (1959), U.S.Code Cong. & Admin.News 1959, pp. 2134, 2135.
29
See id., at 2-3; H.R.Rep.No.229, supra, at 3-4. See also House Hearings, at 15, 19-20, 44-45.
30
Whether the statutory language provides the exclusive solution for unsuual conflict-of-interest problems, such as that identified in Czaplicki, is a question that is not presented on the facts of these cases. We accordingly do not decide whether, or to what extent, Czaplicki survived the 1959 amendments.
31
"Ordinarily, therefore, it is likely that the interests of both longshoreman and assignee in having their substantive rights pursued and of the third person in facing a single action will be achieved under LHWCA.
"But LHWCA does not yet deal directly with certain practical problems that may interrupt or wrench these expectations. These can arise whenever by design or inadvertence the longshoreman fails during the statutory period to prosecute the claim while the right of action is exclusively his. Following this failure, the assignee may, for a variety of reasons, not then itself prosecute the claim. It may not consider a claim thought meritorious by the longshoreman to be sufficiently so to warrant the expense of litigation. It may have a specific conflict of interest that militates against prosecuting the claim. It may simply be dilatory to the point that the claim is threatened by a limitations bar. Under all of these, and to precisely the same degree under all, the longshoreman faces a practical problem for which LHWCA provides no direct solution: forcing action by the assignee, or somehow retrieving the right of action. While LHWCA does not specifically provide the solution, it certainly cannot be thought to have been intended by Congress that the longshoreman's substantive right might be lost simply through inaction of the assignee until the claim is barred from prosecution by anyone. What is needed is a solution that adequately protects the assignee's first right of exclusive action but that also protects the longshoreman's substantive right against loss through inaction of the assignee for whatever reason." 618 F.2d, at 1045.
32
The District Court in the Perez case aptly evaluated the so-called "problem" created by an employer's failure to sue after statutory assignment of the employee's cause of action:
"[W]hatever the consequences of a failure to sue, an employee who fails to sue within six months of accepting compensation under an award . . . is as responsible for that failure as an employer who neglects, for whatever reason, to pursue an assigned claim." 468 F.Supp., at 802.
33
"Consequently, as we have done before, we must reject a 'theory that nowhere appears in the Act, that was never mentioned by Congress during the legislative process, that does not comport with Congress' intent, and that restricts . . . a remedial Act . . . .' Northeast Marine Terminal Co. v. Caputo, 432 U.S. [249], at 278-279 [97 S.Ct. 2348, at 2365, 53 L.Ed.2d 320]." Edmonds v. Compagnie Generale Transatlantique, 443 U.S., at 271, 99 S.Ct., at 2762.
34
Petitioners suggest that such an automatic rule is justified because of a stevedore's normal reluctance to file suit against a customer. However, in rejecting a similar conflict-of-interest argument, the District Court in Hernandez v. Costa Armatori, S. p. A., 467 F.Supp. 1064, at 1067-1068, identified the flaw in this reasoning:
"[T]his is not the kind of matter that Congress could have viewed as sufficient to invalidate the assignment. Such a conflict has always been inherent in the statutory scheme. Presumably every stevedore would prefer not to give offense to its customer.
* * * * *
"Plaintiff has thus referred only to 'conflicts of interest' of which Congress was aware in enacting the statute. To allow them as exceptions to the statutory assignment would be to read Section 933(b) out of the Act."
In addition, where, as is often the case, the stevedore's insurer is subrogated to the stevedore's interest in an assigned claim, see 33 U.S.C. § 933(h), this potential conflict probably will not be of much significance. The insurer is unlikely to sacrifice a meritorious claim for fear of antagonizing a customer of the stevedore.
35
Nor did it correctly construe Czaplicki. As discussed supra, at 605-607, that decision was narrowly drawn to redress certain inequities that arose from "the peculiar facts" of that case. Czaplicki did not hold that the § 33(b) assignment could be avoided whenever an employer failed to pursue an assigned claim.
36
Indeed, shortly after Wynn was decided, the Fifth Circuit concluded that, while Czaplicki was still good law, it should be narrowly applied to specific conflicts of interest identified on a case-by-case basis. See McClendon v. Charente Steamship Co., 348 F.2d 298, 301-303 (1965). The court expressly declined to adopt the automatic rule applied in Wynn. See 348 F.2d, at 303.
37
See Director, Office of Workers' Compensation Programs v. Rasmussen, 440 U.S. 29, 32-35, 99 S.Ct. 903, 906-908, 59 L.Ed.2d 122.
38
See Edmonds v. Compagnie Generale Transatlantique, supra, at 262, 99 S.Ct., at 2757.
39
In its explanation of the reasons for eliminating the unseaworthiness remedy, the House Report accompanying the 1972 Amendments stated:
"The Committee heard testimony that the number of third-party actions brought under the Sieracki and Ryan line of decisions has increased substantially in recent years and that much of the financial resources which could be better utilized to pay improved compensation benefits were now being spent to defray litigation costs. Industry witnesses testified that despite the fact that since 1961 injury frequency rates have decreased in the industry, and maximum benefits payable under the Act have remained constant, the cost of compensation insurance for longshoremen has increased substantially because of the increased number of third party cases and legal expenses and higher recoveries in such cases. The Committee also heard testimony that in some cases workers were being encouraged not to file claims for compensation or to delay their return to work in the hope of increasing their possible recovery in a third party action." H.R.Rep.No.92-1441, 92d Cong., 2d Sess., p. 5 (1972), U.S.Code Cong. & Admin.News 1972, pp. 4698, 4702.
40
"Congress has put down its pen, and we can neither rewrite Congress' words nor call it back 'to cancel half a Line.' Our task is to interpret what Congress has said . . .." Director, Office of Workers' Compensation Programs v. Rasmussen, supra, at 47, 99 S.Ct., at 913.
41
As our analysis indicates, the 1959 and 1972 Amendments have substantially undercut the basis for the Czaplicki exception to § 33(b). The Court was troubled in Czaplicki because under the Act in 1956 there was "no other procedure" by which a longshoreman could enforce his rights against a third party where the employer failed to sue due to a conflict of interest. 351 U.S., at 532-533, 76 S.Ct., at 950-951. After the 1959 amendments, there is such a procedure: the employee may simply file his own third-party suit within six months after accepting compensation.
Similarly, to the extent that Czaplicki and its progeny sought to mitigate the conflict of interest created by Ryan Stevedoring, the 1972 Amendments eliminate the need for a judicially created exception to § 33(b):
"[B]efore the [1972] Amendments, the longshoreman and the stevedore had adverse interests in the third-party action: if the longshoreman were successful in that suit, the shipowner frequently would attempt to require the stevedore to make payment of amounts due the longshoreman. With the abolition of the shipowner's cause of action, the stevedore and the longshoreman had a common interest in the longshoreman's recovery against the shipowner." Bloomer v. Liberty Mutual Ins. Co., 445 U.S. 74, 84-85, 100 S.Ct. 925, 932-933, 63 L.Ed.2d 215.
See also Valentino v. Rickners Rhederei, G. M. B. H., 552 F.2d 466, 470 (CA2 1977).
| 78
|
451 U.S. 619
101 S.Ct. 1958
68 L.Ed.2d 489
Larry C. FLYNT, Jimmy R. Flynt and Althea Leasure Flynt, Petitioners,v.State of OHIO.
No. 80-420.
May 18, 1981.
PER CURIAM.
1
On July 14, 1976, criminal complaints were issued against petitioners charging them with disseminating obscenity in violation of Ohio Rev.Code Ann. § 2907.32 (1975). The Municipal Court granted petitioners' motions to dismiss the complaints on the ground that petitioners had been subjected to selective and discriminatory prosecution in violation of the Equal Protection Clause of the Fourteenth Amendment. The Court of Appeals of Ohio reversed, finding the evidence insufficient to support petitioners' allegations of selective and discriminatory prosecution. The case was remanded for trial. The Ohio Supreme Court affirmed. 63 Ohio St.2d 132, 407 N.E.2d 15 (1980). We granted certiorari. 449 U.S. 1033, 101 S.Ct. 607, 66 L.Ed.2d 495 (1980). Because the decision of of the Ohio Supreme Court was not a final judgment within the meaning of 28 U.S.C. § 1257, we dismiss the writ for want of jurisdiction.
2
Consistent with the relevant jurisdictional statute, 28 U.S.C. § 1257, the Court's jurisdiction to review a state-court decision is generally limited to a final judgment rendered by the highest court of the State in which decision may be had. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 476-477, 95 S.Ct. 1029, 1036, 43 L.Ed.2d 328 (1975). In general, the final-judgment rule has been interpreted "to preclude reviewability . . . where anything further remains to be determined by a State court, no matter how dissociated from the only federal issue that has finally been adjudicated by the highest court of the State." Radio Station WOW, Inc. v. Johnson, 326 U.S. 120, 124, 65 S.Ct. 1475, 1478, 89 L.Ed. 2092 (1945). Applied in the context of a criminal prosecution, finality is normally defined by the imposition of the sentence. Parr v. United States, 351 U.S. 513, 518, 76 S.Ct. 912, 916, 100 L.Ed. 1377 (1956); Berman v. United States, 302 U.S. 211, 212, 58 S.Ct. 164, 166, 82 L.Ed. 204 (1937); see also Whitus v. Georgia, 385 U.S. 545, 547, 87 S.Ct. 643, 645, 17 L.Ed.2d 599 (1967). Here there has been no finding of guilt and no sentence imposed.
3
The Court has, however, in certain circumstances, treated state-court judgments as final for jurisdictional purposes although there were further proceedings to take place in the state court. Cases of this kind were divided into four categories in Cox Broadcasting Corp. v. Cohn, supra, and each category was described. We do not think that the decision of the Ohio Supreme Court is a final judgment within any of the four exceptions identified in Cox.
4
In the first place, we observed in Cox that in most, if not all, of the cases falling within the four exceptions, not only was there a final judgment on the federal issue for purposes of state-court proceedings, but also there were no other federal issues to be resolved. There was thus no probability of piecemeal review with respect to federal issues. Here, it appears that other federal issues will be involved in the trial court, such as whether or not the publication at issue is obscene.
5
Second, it is not even arguable that the judgment involved here falls within any of the first three categories identified in the Cox opinion, and the argument that it is within the fourth category, although not frivolous, is unsound. The cases falling within the fourth exception were described as those situations:
6
"[w]here the federal issue has been finally decided in the state courts with further proceedings pending in which the party seeking review here might prevail on the merits on nonfederal grounds, thus rendering unnecessary review of the federal issue by this Court, and where reversal of the state court on the federal issue would be preclusive of any further litigation on the relevant cause of action rather than merely controlling the nature and character of, or determining the admissibility of evidence in, the state proceedings still to come. In these circumstances, if a refusal immediately to review the state-court decision might seriously erode federal policy, the Court has entertained and decided the federal issue, which itself has been finally determined by the state courts for purposes of the state litigation." 420 U.S., at 482-483, 95 S.Ct., at 1039-1040.
7
Here, it is apparent that if we reversed the judgment of the Ohio Supreme Court on the federal defense of selective enforcement, there would be no further proceedings in the state courts in this case. But the question remains whether delaying review until petitioners are convicted, if they are, would seriously erode federal policy within the meaning of our prior cases. We are quite sure that this would not be the case and that we do not have a final judgment before us.
8
The cases which the Cox opinion listed as falling in the fourth category involved identifiable federal statutory or constitutional policies which would have been undermined by the continuation of the litigation in the state courts. Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974); Mercantile National Bank v. Langdeau, 371 U.S. 555, 83 S.Ct. 520, 9 L.Ed.2d 523 (1963); Construction Laborers v. Curry, 371 U.S. 542, 83 S.Ct. 531, 9 L.Ed.2d 514 (1963). Here there is no identifiable federal policy that will suffer if the state criminal proceeding goes forward. The question presented for review is whether on this record the decision to prosecute petitioners was selective or discriminatory in violation of the Equal Protection Clause. The resolution of this question can await final judgment without any adverse effect upon important federal interests. A contrary conclusion would permit the fourth exception to swallow the rule. Any federal issue finally decided on an interlocutory appeal in the state courts would qualify for immediate review. That this case involves an obscenity prosecution does not alter the conclusion. Obscene material, properly defined, is beyond the protection of the First Amendment. Miller v. California, 413 U.S. 15, 23-24, 93 S.Ct. 2607, 2614, 37 L.Ed.2d 419 (1973). As this case comes to us, we are confronted only with a state effort to prosecute an unprotected activity, the dissemination of obscenity. The obscenity issue has not yet been decided in the state courts, and no federal policy bars a trial on that question. There is no reason to treat this selective prosecution claim differently than we would treat any other claim of selective prosecution.
9
Accordingly, the writ is dismissed for want of jurisdiction.
10
So ordered.
11
Justice STEWART, with whom Justice BRENNAN and Justice MARSHALL join, dissenting.
12
I believe that a criminal trial of the petitioners under this Ohio obscenity law will violate the Constitution of the United States. See, e. g., Wood v. Georgia, 450 U.S. 261, 275, 101 S.Ct. 1097, 1105, 67 L.Ed.2d 220 (opinion of BRENNAN, J.); ibid. (opinion of STEWART, J.); Sewell v. Georgia, 435 U.S. 982, 988, 98 S.Ct. 1635, 1638, 56 L.Ed.2d 76 (dissenting opinion); Splawn v. California, 431 U.S. 595, 602, 97 S.Ct. 1987, 1991, 52 L.Ed.2d 606 (STEWART, J., dissenting). It is clear to me, therefore, that "identifiable . . . constitutional polic[y]" will be "undermined by the continuation of the litigation in the state courts." Ante, at 622.
13
Accordingly, I think that under the very criteria discussed in the opinion of the Court, the judgment before us is "final for jurisdictional purposes." Ante, at 620. Believing that the Ohio trial court acted correctly in dismissing the complaints, and that the state appellate courts were in error in overturning that dismissal, I would reverse the judgment.
14
Justice STEVENS, dissenting.
15
The decision of a federal question by the highest court of the State is final within the meaning of 28 U.S.C. § 1257 "if a refusal immediately to review the state-court decision might seriously erode federal policy." Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 483, 95 S.Ct. 1029, 1040, 13 L.Ed.2d 328. In the Court's view, this ground does not support reviewability in this case because the Court can discern "no identifiable federal policy that will suffer if the state criminal proceeding goes forward." Ante, at 622. In my opinion, the interest in protecting magazine publishers from being prosecuted criminally because state officials or their constituents are offended by the content of an admittedly nonobscene political cartoon is not merely "an identifiable federal policy"; it is the kind of interest that motivated the adoption of the First Amendment to the United States Constitution.
16
Petitioners publish Hustler, a national magazine. The trial court dismissed the criminal complaint against them after hearing evidence tending to establish that Ohio's decision to bring this prosecution was motivated by hostility to a political cartoon that is constitutionally indistinguishable from the rather trite depiction held to be protected by the First Amendment in Papish v. University of Missouri Curators, 410 U.S. 667, 93 S.Ct. 1197, 35 L.Ed.2d 618. The Ohio Court of Appeals reversed, and that court's decision was affirmed by the Supreme Court of Ohio over the dissent of Justice Brown.
17
Because the Court has decided today to dismiss the writ of certiorari for want of jurisdiction, I will not comment on the merits beyond indicating that they concern the standards that a court must apply in determining whether an exercise of prosecutorial discretion has been based on an impermissible criterion such as race, religion, or the exercise of First Amendment rights. Because I place a high value on the federal interest in preventing such prosecutions and because the reinstatement of this criminal complaint may seriously erode that federal interest, I respectfully dissent.
| 23
|
451 U.S. 527
101 S.Ct. 1908
68 L.Ed.2d 420
Robert PARRATT and Francis Lugenbill, Petitioners,v.Bert TAYLOR, Jr.
No. 79-1734.
Argued March 2, 1981.
Decided May 18, 1981.
Syllabus
Respondent, an inmate of a Nebraska prison, ordered by mail certain hobby materials. After being delivered to the prison, the packages containing the materials were lost when the normal procedure for receipt of mail packages was not followed. Respondent brought an action in Federal District Court under 42 U.S.C. § 1983 against petitioners prison officials to recover the value of the hobby materials, claiming that petitioners had negligently lost the materials and thereby deprived respondent of property without due process of law in violation of the Fourteenth Amendment. The District Court entered summary judgment for respondent, holding that negligent actions by state officials can be a basis for an action under § 1983, that petitioners were not immune from liability, and that the deprivation of the hobby materials implicated due process rights. The Court of Appeals affirmed.
Held : Respondent has not stated a claim for relief under 42 U.S.C. § 1983. Pp. 531-544.
(a) In any § 1983 action the initial inquiry must focus on whether the two essential elements to a § 1983 action are present: (1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States. Pp. 531-535.
(b) Although respondent has been deprived of property under color of state law, he has not sufficiently alleged a violation of the Due Process Clause of the Fourteenth Amendment. The deprivation did not occur as the result of some established state procedure, but as the result of the unauthorized failure of state agents to follow established state procedure. Moreover, Nebraska has a tort claims procedure which provides a remedy to persons who have suffered a tortious loss at the hands of the State, but which respondent did not use. Such procedure could have fully compensated respondent for his property loss and was sufficient to satisfy the requirements of due process. Pp. 535-544.
8th Cir., 620 F.2d 307, reversed.
J. Kirk Brown, Lincoln, Neb., for petitioners.
Kevin Colleran, Lincoln, Neb., for respondent.
[Amicus Curiae Information from pages 528-529 intentionally omitted]
Justice REHNQUIST delivered the opinion of the Court.
1
The respondent is an inmate at the Nebraska Penal and Correctional Complex who ordered by mail certain hobby materials valued at $23.50. The hobby materials were lost and respondent brought suit under 42 U.S.C. § 1983 to recover their value. At first blush one might well inquire why respondent brought an action in federal court to recover damages of such a small amount for negligent loss of property, but because 28 U.S.C. § 1343, the predicate for the jurisdiction of the United States District Court, contains no minimum dollar limitation, he was authorized by Congress to bring his action under that section if he met its requirements and if he stated a claim for relief under 42 U.S.C. § 1983. Respondent claimed that his property was negligently lost by prison officials in violation of his rights under the Fourteenth Amendment to the United States Constitution. More specifically, he claimed that he had been deprived of property without due process of law.1
2
The United States District Court for the District of Nebraska entered summary judgment for respondent, and the United States Court of Appeals for the Eighth Circuit affirmed in a per curiam order. 620 F.2d 307 (1980). We granted certiorari. 449 U.S. 917, 101 S.Ct. 315, 66 L.Ed.2d 145 (1980).
3
* The facts underlying this dispute are not seriously contested. Respondent paid for the hobby materials he ordered with two drafts drawn on his inmate account by prison officials. The packages arrived at the complex and were signed for by two employees who worked in the prison hobby center. One of the employees was a civilian and the other was an inmate. Respondent was in segregation at the time and was not permitted to have the hobby materials. Normal prison procedures for the handling of mail packages is that upon arrival they are either delivered to the prisoner who signs a receipt for the package or the prisoner is notified to pick up the package and to sign a receipt. No inmate other than the one to whom the package is addressed is supposed to sign for a package. After being released from segregation, respondent contacted several prison officials regarding the whereabouts of his packages. The officials were never able to locate the packages or to determine what caused their disappearance.
4
In 1976, respondent commenced this action against the petitioners, the Warden and Hobby Manager of the prison, in the District Court seeking to recover the value of the hobby materials which he claimed had been lost as a result of the petitioners' negligence. Respondent alleged that petitioners' conduct deprived him of property without due process of law in violation of the Fourteenth Amendment of the United States Constitution. Respondent chose to proceed in the United States District Court under 28 U.S.C. § 1343 and 42 U.S.C. § 1983, even though the State of Nebraska had a tort claims procedure which provided a remedy to persons who suffered tortious losses at the hands of the State.
5
On October 25, 1978, the District Court granted respondent's motion for summary judgment. The District Court ruled that negligent actions by state officials can be a basis for an action under 42 U.S.C. § 1983; petitioners were not immune from damages actions of this kind; and the deprivation of the hobby kit "implicate[d] due process rights." The District Court explained:
6
"This is not a situation where prison officials confiscated contraband. The negligence of the officials in failing to follow their own policies concerning the distribution of mail resulted in a loss of personal property for [respondent], which loss should not go without redress." App. to Pet. for Cert. 9.
II
7
In the best of all possible worlds, the District Court's above-quoted statement that respondent's loss should not go without redress would be an admirable provision to be contained in a code which governed the administration of justice in a civil-law jurisdiction. For better or for worse, however, our traditions arise from the common law of case-by-case reasoning and the establishment of precedent. In 49 of the 50 States the common-law system, as modified by statute, constitutional amendment, or judicial decision governs. Coexisting with the 50 States which make it up, and supreme over them to the extent of its authority under Art. IV of the Constitution, is the National Government. At an early period in the history of this Nation, it was held that there was no federal common law of crimes, United States v. Hudson & Goodwin, 7 Cranch 32 (1812), and since Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), there has been no general common law applicable in federal courts merely by reason of diversity-of-citizenship jurisdiction. Therefore, in order properly to decide this case we must deal not simply with a single, general principle, however, just that principle may be in the abstract, but with the complex interplay of the Constitution, statutes, and the facts which form the basis for this litigation.
8
Because federal courts are courts of limited jurisdiction, we must first look to the Act of Congress which confers jurisdiction over claims such as respondent's on a United States district court. Such enactment is found in 28 U.S.C. § 1343, which provides in pertinent part:
9
"The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:
10
* * * * *
11
"(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States."
12
The statute conferring jurisdiction is in turn closely related to 42 U.S.C. § 1983, under which respondent brought this action. Section 1983 provided in the year in question:
13
"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."
14
While we have twice granted certiorari in cases to decide whether mere negligence will support a claim for relief under § 1983, see Procunier v. Navarette, 434 U.S. 555, 98 S.Ct. 855, 55 L.Ed.2d 24 (1978), and Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979), we have in each of those cases found it unnecessary to decide the issue. In Procunier, supra, we held that regardless of whether the § 1983 complaint framed in terms of negligence stated a claim for relief, the defendants would clearly have been entitled to qualified immunity and therefore not liable for damages. In Baker, supra, we held that no deprivation of any rights, privileges, or immunities secured by the Constitution and laws of the United States had occurred, and therefore it was unnecessary to decide whether mere negligence on the part of the actor would have rendered him liable had there been such a deprivation. These two decisions, however, have not aided the various Courts of Appeals and District Courts in their struggle to determine the correct manner in which to analyze claims such as the present one which allege facts that are commonly thought to state a claim for a common-law tort normally dealt with by state courts, but instead are couched in terms of a constitutional deprivation and relief is sought under § 1983. The diversity in approaches is legion. See, e. g. Williams v. Kelley, 624 F.2d 695 (CA5 1980); Beard v. Mitchell, 604 F.2d 485 (CA7 1979); Fulton Market Cold Storage Co. v. Cullerton, 582 F.2d 1071 (CA7 1978); O'Grady v. Montpelier, 573 F.2d 747 (CA2 1978); Bonner v. Coughlin, 517 F.2d 1311 (CA7 1975), modified en banc, 545 F.2d 565 (1976); Hampton v. Holmesburg Prison Officials, 546 F.2d 1077 (CA3 1976); Jones v. Marshall, 528 F.2d 132 (CA2 1975); Diamond v. Thompson, 523 F.2d 1201 (CA5 1975); Kimbrough v. O'Neil, 523 F.2d 1057 (CA7 1975); Carter v. Estelle, 519 F.2d 1136 (CA5 1975); Pitts v. Griffin, 518 F.2d 72 (CA8 1975); Russell v. Bodner, 489 F.2d 280 (CA3 1973); Johnson v. Glick, 481 F.2d 1028 (CA2 1973); McCray v. Maryland, 456 F.2d 1 (CA4 1972); Carter v. Carlson, 144 U.S.App.D.C. 388, 447 F.2d 358 (1971); Madison v. Manter, 441 F.2d 537 (CA1 1971); Howard v. Swenson, 426 F.2d 277 (CA8 1970); Whirl v. Kern, 407 F.2d 781 (CA5 1968); and Striker v. Pancher, 317 F.2d 780 (CA6 1963). We, therefore, once more put our shoulder to the wheel hoping to be of greater assistance to courts confronting such a fact situation than it appears we have been in the past.
15
Nothing in the language of § 1983 or its legislative history limits the statute solely to intentional deprivations of constitutional rights. In Baker v. McCollan, supra, we suggested that simply because a wrong was negligently as opposed to intentionally committed did not foreclose the possibility that such action could be brought under § 1983. We explained:
16
"[T]he question whether an allegation of simple negligence is sufficient to state a cause of action under § 1983 is more elusive than it appears at first blush. It may well not be susceptible of a uniform answer across the entire spectrum of conceivable constitutional violations which might be the subject of a § 1983 action." 443 U.S., at 139-140, 99 S.Ct., at 2692-2693.
17
Section 1983, unlike its criminal counterpart, 18 U.S.C. § 242, has never been found by this Court to contain a state-of-mind requirement.2 The Court recognized as much in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), when we explained after extensively reviewing the legislative history of § 1983, that
18
"[i]t 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.
19
In distinguishing the criminal counterpart which had earlier been at issue in Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945), the Monroe Court stated:
20
"In the Screws case we dealt with a statute that imposed criminal penalties for acts 'willfully' done. We construed that word in its setting to mean the doing of an act with 'a specific intent to deprive a person of a federal right.' 325 U.S., at 103, [65 S.Ct., at 1036]. We do not think that gloss should be put on [§ 1983] which we have here. The word 'willfully' does not appear in [§ 1983]. Moreover, [§ 1983] provides a civil remedy, while in the Screws case we dealt with a criminal law challenged on the grounds of vagueness. [Section 1983] should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions." 365 U.S., at 187, 91 S.Ct., at 494.
21
Both Baker v. McCollan and Monroe v. Pape suggest that § 1983 affords a "civil remedy" for deprivations of federally protected rights caused by persons acting under color of state law without any express requirement of a particular state of mind. Accordingly, in any § 1983 action the initial inquiry must focus on whether the two essential elements to a § 1983 action are present: (1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States.
III
22
Since this Court's decision in Monroe v. Pape, supra, it can no longer be questioned that the alleged conduct by the petitioners in this case satisfies the "under color of state law" requirement. Petitioners were, after all, state employees in positions of considerable authority. They do not seriously contend otherwise. Our inquiry, therefore, must turn to the second requirement—whether respondent has been deprived of any right, privilege, or immunity secured by the Constitution or laws of the United States.
23
The only deprivation respondent alleges in his complaint is that "his rights under the Fourteenth Amendment of the Constitution of the United States were violated. That he was deprived of his property and Due Process of Law." App. 8. As such, respondent's claims differ from the claims which were before us in Monroe v. Pape, supra, which involved violations of the Fourth Amendment, and the claims presented in Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), which involved alleged violations of the Eighth Amendment. Both of these Amendments have been held applicable to the States by virtue of the adoption of the Fourteenth Amendment. See Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). Respondent here refers to no other right, privilege, or immunity secured by the Constitution or federal laws other than the Due Process Clause of the Fourteenth Amendment simpliciter. The pertinent text of the Fourteenth Amendment provides:
24
"Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law ; nor deny to any person within its jurisdiction the equal protection of the laws." (Emphasis supplied.)
25
Unquestionably, respondent's claim satisfies three prerequisites of a valid due process claim: the petitioners acted under color of state law; the hobby kit falls within the definition of property; and the alleged loss, even though negligently caused, amounted to a deprivation.3 Standing alone, however, these three elements do not establish a violation of the Fourteenth Amendment. Nothing in that Amendment protects against all deprivations of life, liberty, or property by the State. The Fourteenth Amendment protects only against deprivations "without due process of law." Baker v. McCollan, 443 U.S., at 145, 99 S.Ct., at 2695. Our inquiry therefore must focus on whether the respondent has suffered a deprivation of property without due process of law. In particular, we must decide whether the tort remedies which the State of Nebraska provides as a means of redress for property deprivations satisfy the requirements of procedural due process.
26
This Court has never directly addressed the question of what process is due a person when an employee of a State negligently takes his property. In some cases this Court has held that due process requires a predeprivation hearing before the State interferes with any liberty or property interest enjoyed by its citizens. In most of these cases, however, the deprivation of property was pursuant to some established state procedure and "process" could be offered before any actual deprivation took place. For example, in Mullane v. Central Hanover Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), the Court struck down on due process grounds a New York statute that allowed a trust company, when it sought a judicial settlement of its trust accounts, to give notice by publication to all beneficiaries even if the whereabouts of the beneficiaries were known. The Court held that personal notice in such situations was required and stated that "when notice is a person's due process which is a mere gesture is not due process." Id., at 315, 70 S.Ct., at 657. More recently, in Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971), we reviewed a state statute which provided for the taking of the driver's license and registration of an uninsured motorist who had been involved in an accident. We recognized that a driver's license is often involved in the livelihood of a person and as such could not be summarily taken without a prior hearing. In Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), we struck down the Florida prejudgment replevin statute which allowed secured creditors to obtain writs in ex parte proceedings. We held that due process required a prior hearing before the State authorized its agents to seize property in a debtor's possession. See also Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); and Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969). In all these cases, deprivations of property were authorized by an established state procedure and due process was held to require predeprivation notice and hearing in order to serve as a check on the possibility that a wrongful deprivation would occur.
27
We have, however, recognized that postdeprivation remedies made available by the State can satisfy the Due Process Clause. In such cases, the normal predeprivation notice and opportunity to be heard is pretermitted if the State provides a postdeprivation remedy. In North American Cold Storage Co. v. Chicago, 211 U.S. 306, 29 S.Ct. 101, 53 L.Ed. 195 (1908), we upheld the right of a State to seize and destroy unwholesome food without a preseizure hearing. The possibility of erroneous destruction of property was outweighed by the fact that the public health emergency justified immediate action and the owner of the property could recover his damages in an action at law after the incident. In Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 70 S.Ct. 870, 94 L.Ed. 1088 (1950), we upheld under the Fifth Amendment Due Process Clause the summary seizure and destruction of drugs without a preseizure hearing. Similarly, in Fahey v. Mallonee, 332 U.S. 245, 67 S.Ct. 1552, 91 L.Ed. 2030 (1947), we recognized that the protection of the public interest against economic harm can justify the immediate seizure of property without a prior hearing when substantial questions are raised about the competence of a bank's management. In Bowles v. Willingham, 321 U.S. 503, 64 S.Ct. 641, 88 L.Ed. 892 (1944), we upheld in the face of a due process challenge the authority of the Administrator of the Office of Price Administration to issue rent control orders without providing a hearing to landlords before the order or regulation fixing rents became effective. See also Corn Exchange Bank v. Coler, 280 U.S. 218, 50 S.Ct. 94, 74 L.Ed. 378 (1930); McKay v. McInnes, 279 U.S. 820, 49 S.Ct. 344, 73 L.Ed. 975 (1929); Coffin Brothers & Co. v. Bennett, 277 U.S. 29, 48 S.Ct. 422, 72 L.Ed. 768 (1928); and Ownbey v. Morgan, 256 U.S. 94, 41 S.Ct. 433, 65 L.Ed. 837 (1921). These cases recognize that either the necessity of quick action by the State or the impracticality of providing any meaningful predeprivation process, when coupled with the availability of some meaningful means by which to assess the propriety of the State's action at some time after the initial taking, can satisfy the requirements of procedural due process.4 As we stated in Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974):
28
"Petitioner asserts that his right to a hearing before his possession is in any way disturbed is nonetheless mandated by a long line of cases in this Court, culminating in Sniadach v. Family Finance Corp., 395 U.S. 337 [89 S.Ct. 1820, 23 L.Ed.2d 349] (1969), and Fuentes v. Shevin, 407 U.S. 67 [92 S.Ct. 1983, 32 L.Ed.2d 556] (1972). The pre-Sniadach cases are said by petitioner to hold that 'the opportunity to be heard must precede any actual deprivation of private property.' Their import, however, is not so clear as petitioner would have it: they merely stand for the proposition that a hearing must be had before one is finally deprived of his property and do not deal at all with the need for a pretermination hearing where a full and immediate post-termination hearing is provided. The usual rule has been '[w]here only property rights are involved, mere postponement of the judicial enquiry is not a denial of due process, if the opportunity given for ultimate judicial determination of liability is adequate.' Phillips v. Commissioner, 283 U.S. 589, 596-597 [51 S.Ct. 608, 611, 75 L.Ed. 1289] (1931)." Id., at 611, 94 S.Ct., at 1902. (footnote omitted).
29
Our past cases mandate that some kind of hearing is required at some time before a State finally deprives a person of his property interests. The fundamental requirement of due process is the opportunity to be heard and it is an "opportunity which must be granted at a meaningful time and in a meaningful manner." Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965). However, as many of the above cases recognize, we have rejected the proposition that "at a meaningful time and in a meaningful manner" always requires the State to provide a hearing prior to the initial deprivation of property.5 This rejection is based in part on the impracticability in some cases of providing any preseizure hearing under a state-authorized procedure, and the assumption that at some time a full and meaningful hearing will be available.
30
The justifications which we have found sufficient to uphold takings of property without any predeprivation process are applicable to a situation such as the present one involving a tortious loss of a prisoner's property as a result of a random and unauthorized act by a state employee. In such a case, the loss is not a result of some established state procedure and the State cannot predict precisely when the loss will occur. It is difficult to conceive of how the State could provide a meaningful hearing before the deprivation takes place. The loss of property, although attributable to the State as action under "color of law," is in almost all cases beyond the control of the State. Indeed, in most cases it is not only impracticable, but impossible, to provide a meaningful hearing before the deprivation. That does not mean, of course, that the State can take property without providing a meaningful postdeprivation hearing. The prior cases which have excused the prior-hearing requirement have rested in part on the availability of some meaningful opportunity subsequent to the initial taking for a determination of rights and liabilities.
31
A case remarkably similar to the present one is Bonner v. Coughlin, 517 F.2d 1311 (CA7 1975), modified en banc, 545 F.2d 565 (1976), cert. denied, 435 U.S. 932, 98 S.Ct. 1507, 55 L.Ed.2d 529 (1978). There, a prisoner alleged that prison officials "made it possible by leaving the door of Plaintiff's cell open, for others without authority to remove Plaintiff's trial transcript from the cell." 517 F.2d, at 1318. The question presented was whether negligence may support a recovery under § 1983. Then Judge Stevens, writing for a panel of the Court of Appeals for the Seventh Circuit, recognized that the question that had to be decided was "whether it can be said that the deprivation was 'without due process of law.' " Ibid. He concluded:
32
"It seems to us that there is an important difference between a challenge to an established state procedure as lacking in due process and a property damage claim arising out of the misconduct of state officers. In the former situation the facts satisfy the most literal reading of the Fourteenth Amendment's prohibition against 'State' deprivations of property; in the latter situation, however, even though there is action 'under color of' state law sufficient to bring the amendment into play, the state action is not necessarily complete. For in a case such as this the law of Illinois provides, in substance, that the plaintiff is entitled to be made whole for any loss of property occasioned by the unauthorized conduct of the prison guards. We may reasonably conclude, therefore, that the existence of an adequate state remedy to redress property damage inflicted by state officers avoids the conclusion that there has been any constitutional deprivation of property without due process of law within the meaning of the Fourteenth Amendment." Id., at 1319.
33
We believe that the analysis recited above in Bonner is the proper manner in which to approach a case such as this. This analysis is also quite consistent with the approach taken by this Court in Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977), where the Court was confronted with the claim that corporal punishment in public schools violated due process. Arguably, the facts presented to the Court in Ingraham were more egregious than those presented here inasmuch as the Court was faced with both an intentional act (as opposed to negligent conduct) and a deprivation of liberty. However, we reasoned:
34
" 'At some point the benefit of an additional safeguard to the individual affected . . . and to society in terms of increased assurance that the action is just, may be outweighed by the cost.' Mathews v. Eldridge, 424 U.S., at 348 [96 S.Ct., at 909]. We think that point has been reached in this case. In view of the low incidence of abuse, the openness of our schools, and the common-law safeguards that already exist, the risk of error that may result in violation of a schoolchild's substantive rights can only be regarded as minimal. Imposing additional administrative safeguards as a constitutional requirement might reduce that risk marginally, but would also entail a significant intrusion into an area of primary educational responsibility." Id., at 682, 97 S.Ct., at 1418. (Emphasis supplied.)
IV
35
Application of the principles recited above to this case leads us to conclude the respondent has not alleged a violation of the Due Process Clause of the Fourteenth Amendment. Although he has been deprived of property under color of state law, the deprivation did not occur as a result of some established state procedure. Indeed, the deprivation occurred as a result of the unauthorized failure of agents of the State to follow established state procedure. There is no contention that the procedures themselves are inadequate nor is there any contention that it was practicable for the State to provide a predeprivation hearing. Moreover, the State of Nebraska has provided respondent with the means by which he can receive redress for the deprivation. The State provides a remedy to persons who believe they have suffered a tortious loss at the hands of the State. See Neb.Rev.Stat. § 81-8,209 et seq. (1976). Through this tort claims procedure the State hears and pays claims of prisoners housed in its penal institutions. This procedure was in existence at the time of the loss here in question but respondent did not use it. It is argued that the State does not adequately protect the respondent's interests because it provides only for an action against the State as opposed to its individual employees, it contains no provisions for punitive damages, and there is no right to a trial by jury. Although the state remedies may not provide the respondent with all the relief which may have been available if he could have proceeded under § 1983, that does not mean that the state remedies are not adequate to satisfy the requirements of due process. The remedies provided could have fully compensated the respondent for the property loss he suffered, and we hold that they are sufficient to satisfy the requirements of due process.
36
Our decision today is fully consistent with our prior cases. To accept respondent's argument that the conduct of the state officials in this case constituted a violation of the Fourteenth Amendment would almost necessarily result in turning every alleged injury which may have been inflicted by a state official acting under "color of law" into a violation of the Fourteenth Amendment cognizable under § 1983. It is hard to perceive any logical stopping place to such a line of reasoning. Presumably, under this rationale any party who is involved in nothing more than an automobile accident with a state official could allege a constitutional violation under § 1983. Such reasoning "would make of the Fourteenth Amendment a font of tort law to be superimposed upon whatever systems may already be administered by the States." Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 1160, 47 L.Ed.2d 405 (1976). We do not think that the drafters of the Fourteenth Amendment intended the Amendment to play such a role in our society.
37
Accordingly, the judgment of the Court of Appeals is
38
Reversed.
39
Justice STEWART, concurring.
40
It seems to me extremely doubtful that the property loss here, even though presumably caused by the negligence of state agents, is the kind of deprivation of property to which the Fourteenth Amendment is addressed. If it is, then so too would be damages to a person's automobile resulting from a collision with a vehicle negligently operated by a state official. To hold that this kind of loss is a deprivation of property within the meaning of the Fourteenth Amendment seems not only to trivialize, but grossly to distort the meaning and intent of the Constitution.
41
But even if Nebraska has deprived the respondent of his property in the constitutional sense, it has not deprived him of it without due process of law. By making available to the respondent a reparations remedy, Nebraska has done all that the Fourteenth Amendment requires in this context.
42
On this understanding, I join the opinion of the Court.
43
Justice WHITE, concurring.
44
I join the opinion of the Court but with the reservations stated by my Brother BLACKMUN in his concurring opinion.
45
Justice BLACKMUN, concurring.
46
While I join the Court's opinion in this case, I write separately to emphasize my understanding of its narrow reach. This suit concerns the deprivation only of property and was brought only against supervisory personnel, whose simple "negligence" was assumed but, on this record, not actually proved. I do not read the Court's opinion as applicable to a case concerning deprivation of life or of liberty. Cf. Moore v. East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977). I also do not understand the Court to intimate that the sole content of the Due Process Clause is procedural regularity. I continue to believe that there are certain governmental actions that, even if undertaken with a full panoply of procedural protection, are, in and of themselves, antithetical to fundamental notions of due process. See, e. g., Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 137 (1973).
47
Most importantly, I do not understand the Court to suggest that the provision of "postdeprivation remedies," ante, at 538, within a state system would cure the unconstitutional nature of a state official's intentional act that deprives a person of property. While the "random and unauthorized" nature of negligent acts by state employees makes it difficult for the State to "provide a meaningful hearing before the deprivation takes place," ante, at 541, it is rare that the same can be said of intentional acts by state employees. When it is possible for a State to institute procedures to contain and direct the intentional actions of its officials, it should be required, as a matter of due process, to do so. See Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). In the majority of such cases, the failure to provide adequate process prior to inflicting the harm would violate the Due Process Clause. The mere availability of a subsequent tort remedy before tribunals of the same authority that, though its employees, deliberately inflicted the harm complained of, might well not provide the due process of which the Fourteenth Amendment speaks.
48
Justice POWELL, concurring in the result.
49
This case presents the question whether a state prisoner may sue to recover damages under 42 U.S.C. § 1983, alleging that a violation of the Due Process Clause of the Fourteenth Amendment occurred when two shipments mailed to him were lost due to the negligence of the prison's warden and "hobby manager." Unlike the Court, I do not believe that such negligent acts by state officials constitute a deprivation of property within the meaning of the Fourteenth Amendment, regardless of whatever subsequent procedure a State may or may not provide. I therefore concur only in the result.
50
The Court's approach begins with three "unquestionable" facts concerning respondent's due process claim: "the petitioners acted under color of state law; the hobby kit falls within the definition of property; and the alleged loss, even though negligently caused, amounted to a deprivation." Ante, at 536-537. It then goes on to reject respondent's claim on the theory that procedural due process is satisfied in such a case where a State provides a "postdeprivation" procedure for seeking redress—here a tort claims procedure. I would not decide this case on that ground for two reasons. First, the Court passes over a threshold question—whether a negligent act by a state official that results in loss of or damage to property constitutes a deprivation of property for due process purposes.1 Second, in doing so, the Court suggests a narrow, wholly procedural view of the limitation imposed on the States by the Due Process Clause.
51
The central question in this case is whether unintentional but negligent acts by state officials, causing respondent's loss of property, are actionable under the Due Process Clause. In my view, this question requires the Court to determine whether intent is an essential element of a due process claim, just as we have done in cases applying the Equal Protection Clause2 and the Eighth Amendment's prohibition of "cruel and unusual punishment."3 The intent question cannot be given "a uniform answer across the entire spectrum of conceivable constitutional violations which might be the subject of a § 1983 action," Baker v. McCollan, 443 U.S. 137, 139-140, 99 S.Ct. 2689, 2692-2693, 61 L.Ed.2d 433 (1979). Rather, we must give close attention to the nature of the particular constitutional violation asserted in determining whether intent is a necessary element of such a violation.
52
In the due process area, the question is whether intent is required before there can be a "deprivation" of life, liberty, or property. In this case, for example, the negligence of the prison officials caused respondent to lose his property. Nevertheless, I would not hold that such a negligent act, causing unintended loss of or injury to property, works a deprivation in the constitutional sense. Thus, no procedure for compensation is constitutionally required.
53
A "deprivation" connotes an intentional act denying something to someone, or, at the very least, a deliberate decision not to act to prevent a loss.4 The most reasonable interpretation of the Fourteenth Amendment would limit due process claims to such active deprivations.5 This is the view adopted by an overwhelming number of lower courts, which have rejected due process claims premised on negligent acts without inquiring into the existence or sufficiency of the subsequent procedures provided by the States.6 In addition, such a rule would avoid trivializing the right of action provided in § 1983. That provision was enacted to deter real abuses by state officials in the exercise of governmental powers. It would make no sense to open the federal courts to lawsuits where there has been no affirmative abuse of power, merely a negligent deed by one who happens to be acting under color of state law. See n. 12, infra.7
54
The Court appears unconcerned about this prospect, probably because of an implicit belief in the availability of state tort remedies in most cases. In its view, such remedies will satisfy procedural due process, and relegate cases of official negligence to nonfederal forums. But the fact is that this rule would "make of the Fourteenth Amendment a font of tort law," Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 1160, 47 L.Ed.2d 405 (1976), whenever a State has failed to provide a remedy for negligent invasions of liberty or property interests.8 Moreover, despite the breadth of state tort remedies such claims will be more numerous than might at first be supposed. InKent v. Prasse, 385 F.2d 406 (CA3 1967) (per curiam), for example, a state prisoner was forced to work on a faulty machine, sustained an injury, and brought suit against prison officials. The United States Court of Appeals for the Third Circuit noted that the State, unfortunately, did not provide compensation for this injury, but stated:
55
"Nor are we able to perceive that a tort committed by a state official acting under color of law is, in and of itself, sufficient to show an invasion of a person's right under [§ 1983]. While not dispositive, we note that there is no allegation that defendants violated any state criminal law or acted out of bad motive. Nor [is it] alleged that any state law was not enforced by the defendants." Id., at 407.9
56
Rather than reject this reasoning, I would adopt the view that negligent official acts do not provide any basis for inquiries by federal courts into the existence, or procedural adequacy, of applicable state tort remedies.
57
Such an approach has another advantage; it avoids a somewhat disturbing implication in the Court's opinion concerning the scope of due process guarantees. The Court analyzes this case solely in terms of the procedural rights created by the Due Process Clause. Finding state procedures adequate, it suggests that no further analysis is required of more substantive limitations on state action located in this Clause. Cf. Paul v. Davis, supra, at 712-714, 96 S.Ct., at 1165-67 (assessing the claim presented in terms of the "substantive aspects of the Fourteenth Amendment"); Ingraham v. Wright, 430 U.S. 651, 679, n. 47, 97 S.Ct. 1401, 1416, n. 47, 51 L.Ed.2d 711 (1977) (leaving open the question whether "corporal punishment of a public school child may give rise to an independent federal cause of action to vindicate substantive rights under the Due Process Clause").
58
The Due Process Clause imposes substantive limitations on state action and under proper circumstances10 these limitations may extend to intentional and malicious deprivations of liberty11 and property,12 even where compensation is available under state law. The Court, however, fails altogether to discuss the possibility that the kind of state action alleged here constitutes a violation of the substantive guarantees of the Due Process Clause. As I do not consider a negligent act the kind of deprivation that implicates the procedural guarantees of the Due Process Clause, I certainly would not view negligent acts as violative of these substantive guarantees. But the Court concludes that there has been such a deprivation. And yet it avoids entirely the question whether the Due Process Clause may place substantive limitations on this form of governmental conduct.
59
In sum, it seems evident that the reasoning and decision of the Court today, even if viewed as compatible with our precedents, creates new uncertainties as well as invitations to litigate under a statute that already has burst its historical bounds.13
60
Justice MARSHALL, concurring in part and dissenting in part.
61
I join the opinion of the Court insofar as it holds that negligent conduct by persons acting under color of state law may be actionable under 42 U.S.C. § 1983. Ante, at 534-535. I also agree with the majority that in cases involving claims of negligent deprivation of property without due process of law, the availability of an adequate postdeprivation cause of action for damages under state law may preclude a finding of a violation of the Fourteenth Amendment. I part company with the majority, however, over its conclusion that there was an adequate state-law remedy available to respondent in this case. My disagreement with the majority is not because of any shortcomings in the Nebraska tort claims procedure.1 Rather, my problem is with the majority's application of its legal analysis to the facts of this case.
62
It is significant, in my view, that respondent is a state prisoner whose access to information about his legal rights is necessarily limited by his confinement. Furthermore, there is no claim that either petitioners or any other officials informed respondent that he could seek redress for the alleged deprivation of his property by filing an action under the Nebraska tort claims procedure. This apparent failure takes on additional significance in light of the fact that respondent pursued his complaint about the missing hobby kit through the prison's grievance procedure.2 In cases such as this, I believe prison officials have an affirmative obligation to inform a prisoner who claims that he is aggrieved by official action about the remedies available under state law. If they fail to do so, then they should not be permitted to rely on the existence of such remedies as adequate alternatives to a § 1983 action for wrongful deprivation of property. Since these prison officials do not represent that respondent was informed about his rights under state law, I cannot join in the judgment of the Court in this case.
63
Thus, although I agree with much of the majority's reasoning, I would affirm the judgment of the Court of Appeals.
1
As we explained in Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), property 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." Id., at 577, 92 S.Ct., at 2709. It is not contended that under Nebraska law respondent does not enjoy a property interest in the hobby materials here in question.
2
Title 18 U.S.C. § 242 provides in pertinent part:
"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 . . . shall be fined not more that $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." (Emphasis supplied.)
3
Petitioners argue that even if a negligent deprivation of respondent's property occurred, there is no evidence in the record of negligence on their part. There is merit to petitioners' arguments. Petitioners were not personally involved in the handling of the packages and respondent's basic allegation appears to be that subordinates of petitioners violated established procedures which, if properly followed, would have ensured the proper delivery of respondent's packages. In the past, this Court has refused to accept § 1983 actions premised on theories of respondeat superior. Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976). On the other hand, there is no indication in the record that the petitioners ever raised in the District Court the argument that the loss of property was not caused by their negligence. Certainly, the District Court did not consider this an open question. In such a context and with little or no factual development at the trial level, we can only accept for purposes of this opinion the District Court's assumption that petitioners were negligent and that this negligence contributed to respondent's loss.
4
In Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974), Justice WHITE noted the importance of a meaningful postdeprivation hearing when referring to many of the above cases:
"While these cases indicate that the particular interests involved might not have demanded a hearing immediately, they also reaffirm the principle that property may not be taken without a hearing at some time." Id., at 179, 94 S.Ct., at 1656 (concurring in part and dissenting in part).
5
As we explained in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976):
"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, 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." Id., at 333, 96 S.Ct., at 902.
1
Assuming that there was a "deprivation" of the hobby kit under color of state law in this case, I would agree with the Court's conclusion that state tort remedies provide adequate procedural protection. Cf. Ingraham v. Wright, 430 U.S. 651, 674-682, 97 S.Ct. 1401, 1414-1418, 51 L.Ed.2d 711 (1977) (common-law remedies are adequate to afford procedural due process in cases of corporal punishment of students).
2
Washington v. Davis, 429 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976); Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977) (invidious discriminatory purpose required for claim of racial discrimination under the Equal Protection Clause).
3
In Estelle v. Gamble, 429 U.S. 97, 105, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976), we held that "deliberate indifference to a prisoner's serious illness or injury" on the part of prison officials is sufficient to constitute an "infliction" of cruel and unusual punishment under the Eighth Amendment. We also stated that an "accident, although it may produce added anguish, is not on that basis alone to be characterized as wanton infliction of unnecessary pain." Ibid. Estelle v. Gamble thus supports my view of the Due Process Clause—which requires consideration not only of the effect of an injury or loss on a citizen but also of the intent of the state official whose actions caused the injury or loss.
4
According to Webster's New International Dictionary of the English Language (2d ed. 1945), to "deprive" is to "dispossess; bereave; divest; to hinder from possessing; debar; shut out."
5
In analogous contexts, we have held that the intent of state officials is a relevant factor to consider in determining whether an individual has suffered a denial of due process. In United States v. Lovasco, 431 U.S. 783, 790, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977), involving preindictment prosecutorial delay, we held that "proof of prejudice is generally a necessary but not sufficient element of a due process claim, and . . . the due process inquiry must consider the reasons for the delay as well as the prejudice to the accused."
Similarly, in Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979), the Court reviewed a claimed violation of due process occurring when a sheriff arrested the individual named in an arrest warrant and failed for a time to realize that the warrant itself had named the wrong person. The Court there noted that "the state of mind of the defendant may be relevant on the issue of whether a constitutional violation has occurred in the first place," id., at 140, n. 1, 99 S.Ct., at 2692, n. 1, and went on to hold that there had been no deprivation of liberty without due process of law. The Court reasoned that there is no duty to investigate "every claim of innocence," id., at 146, 99 S.Ct., at 2695, and no constitutional requirement of an "error-free investigation of such a claim," ibid. It relied on the fact that the sheriff had acted reasonably in relying on a facially valid arrest warrant, thus implicitly distinguishing a case involving an intentional deprivation of liberty without cause.
To be sure, even where there has been an intentional deprivation of property, due process claims also must satisfy the requirement that the act be sufficiently linked to an official's state-created duties or powers to constitute "state action." See n. 10, infra.
6
See, e. g., Williams v. Kelley, 624 F.2d 695 (CA5 1980), cert. pending, No. 80-6165; Bonner v. Coughlin, 545 F.2d 565 (CA7 1976) (en banc), cert. denied, 435 U.S. 932, 98 S.Ct. 1507, 55 L.Ed.2d 529 (1978); Harper v. Cserr, 544 F.2d 1121, 1124 (CA1 1976); Williams v. Vincent, 508 F.2d 541, 546 (CA2 1974); Jenkins v. Averett, 424 F.2d 1228, 1232 (CA4 1970); Kent v. Prasse, 385 F.2d 406 (CA3 1967) (per curiam ). See also Paul v. Davis, 424 U.S. 693, 698, 96 S.Ct. 1155, 1159, 47 L.Ed.2d 405 (1976) (suggesting that there should not be a § 1983 action in favor of "the survivors of an innocent bystander mistakenly shot by a policeman or negligently killed by a sheriff driving a government vehicle").
There is no occasion here to express any view as to the possibility of negligent violations of other, more particular constitutional guarantees.
7
We have previously expressed concerns about the prospect that the Due Process Clause may become a vehicle for federal litigation of state torts. In Paul v. Davis, supra, we held that an official action damaging the reputation of a private citizen, although an actionable tort under state law, did not constitute a deprivation of "liberty" within the meaning of the Fourteenth Amendment. In so holding we relied principally on the fact that the individual's interest in his reputation was not accorded a "legal guarantee of present enjoyment" under state law, since it was "simply one of a number [of interests] which the State may protect against injury by virtue of its tort law." Id., at 711-712, 96 S.Ct., at 1165.
Attention to the "guarantees" provided by state law is at least as appropriate in a case involving an alleged deprivation of "property." It is clear that the hobby kit was respondent's "property." But it also is clear that under state law no remedy other than tort law protects property from interferences caused by the negligence of others. The reasoning of Paul v. Davis would suggest, therefore, that the enjoyment of property free of negligent interference is not sufficiently "guaranteed" by state law to justify a due process claim based on official negligence.
A State perhaps could constitutionalize certain negligent actions by state officials by criminalizing negligence, thus extending its guarantee to this kind of interference. Instead, the States merely have created systems for civil compensation of tort victims. In the sense, state law draws a clear distinction between negligently caused injuries and intentional thefts or assaults.
8
One additional problem with the Court's purely procedural approach is worth noting. In Kent v. Prasse, supra, the Third Circuit faced a claimed deprivation of procedural due process by prison officials based on the failure of a State to provide a tort remedy for official negligence—the exact claim validated by the Court today. The court noted that "[i]n any event, such a deprivation would be the work of the state, not these defendants." 385 F.2d, at 407. Arguably, if the absence of a tort remedy is the heart of one's constitutional claim, the defendant in the § 1983 suit must be the State itself, or its lawmakers, both of whom are immune from suit. See Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951) (legislators); Edelman v. Jordan, 415 U.S. 651, 662-663, 94 S.Ct. 1347, 1355, 39 L.Ed.2d 662 (1974) (Eleventh Amendment bars suits against States in federal court). If so, the only remedy available to plaintiffs would be a more substantive due process claim—where grounds for such a claim exist. The Court does not discuss this possibility.
9
Another example is presented in the case of Hamilton v. Stover, cert. pending, No. 80-1419 (filed Feb. 20, 1981), involving a collision between a police car and another car. In an unpublished order, the Sixth Circuit affirmed dismissal of a resulting § 1983 action against the policeman, reasoning that negligent driving cannot constitute a deprivation of constitutional rights. Hamilton v. Stover, 636 F.2d 1217 (1980). In his brief in this Court, however, the policeman points out that he and the employing municipality possess absolute immunity under Ohio law, Ohio Rev. Code § 701.02 (1976), for acts while responding to an emergency call. If this immunity has the effect of cutting off all state-law remedies, under the Court's reasoning there appears to be a deprivation of procedural due process, actionable in federal court.
10
Even intentional injuries inflicted by state officials must be "state action" to implicate the due process guarantees, and must be "under color of" state law in order to be actionable under § 1983. In this area we have drawn a distinction between mere "torts of state officials" and "acts done 'under color' of law . . . which deprived a person of some right secured by the Constitution or laws of the United States." Screws v. United States, 325 U.S. 91, 109, 65 S.Ct. 1031, 1039, 89 L.Ed. 1495 (1945) (plurality opinion of Douglas, J.) (discussing the criminal analogue of § 1983—now codified as 18 U.S.C. § 242). Actionable deprivations must be based 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.' " Ibid. (quoting United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941)). See also Screws, supra, at 134, 65 S.Ct., at 1051 (Rutledge, J., concurring in result) (the Constitution protects the "right not to be deprived of life or liberty by a state officer who takes it by abuse of his office and its power ") (emphasis added). Where state officials cause injuries in ways that are equally available to private citizens, constitutional issues are not necessarily raised. As Justice Douglas put it in Screws : "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, 65 S.Ct., at 1038.
11
See, e. g., Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952); Hall v. Tawney, 621 F.2d 607, 613 (CA4 1980) (corporal punishment of students may have violated due process if it "amounted to a brutal and inhumane abuse of official power literally shocking to the conscience"); Bellows v. Dainack, 555 F.2d 1105, 1106, n. 1 (CA2 1977) (use of excessive force by policeman during the course of an arrest constitutes a deprivation of "liberty" without due process).
12
See, e. g., Kimbrough v. O'Neil, 545 F.2d 1059, 1061 (CA7 1976) (en banc) ("a taking with intent (or reckless disregard) of a claimant's property by a State agent violates the Due Process Clause of the Fourteenth Amendment and is actionable under Section 1983"); Carter v. Estelle, 519 F.2d 1136, 1136-1137 (CA5 1975) (per curiam) (same). See also San Diego Gas & Electric Co. v. San Diego, 450 U.S. 621, 656, n. 23, 101 S.Ct. 1287, 1306, n. 23, 67 L.Ed.2d 551 (1981) (BRENNAN, J., dissenting) (when property is taken by the government but not in furtherance of a "public use", "the government entity may not be forced to pay just compensation under the Fifth Amendment, [but] the landowner may nevertheless have a damages cause of action under 42 U.S.C. § 1983 for a Fourteenth Amendment due process violation").
13
Section 1983 was enacted in 1871 as one of the statutes intended to implement the Fourteenth Amendment. For many years it remained a little-used, little-known section of the Code. In the past two decades, however, resourceful counsel and receptive courts have extended its reach vastly. The statute with a clearly understood and commendable purpose no longer is confined to deprivations of individual rights as intended in 1871. As a result, § 1983 has become a major vehicle for general litigation in the federal courts by individuals and corporations.
Professor Christina Whitman recently has addressed this expansion of § 1983 with a comprehensive assessment of arguable pluses and minuses. See Whitman, Constitutional Torts, 79 Mich.L.Rev. 5 (1980). There will be no pluses, however, if the striking escalation of suits under § 1983 against state and local officials is augmented by suits based on negligent conduct. Professor Whitman noted, for example, that civil rights petitions by state prisoners in federal court increased from 218 cases in 1966 to 11,195 in 1979. Id., at 6. See also the Annual Report of the Director of the Administrative Office of the U.S. Courts 62 (1980), reporting a further increase in this number to 12,397 in 1980. The societal costs of using this statute for a purpose never contemplated are high indeed:
"First, the existence of the statutory cause of action means that every expansion of constitutional rights [through § 1983] will increase the caseload of already overburdened federal courts. This increase dilutes the ability of federal courts to defend our most significant rights. Second, every [such] expansion . . . displaces state lawmaking authority by diverting decision-making to the federal courts." Whitman, supra, at 25.
The present case, involving a $23 loss, illustrates the extent to which constitutional law has been trivialized, and federal courts often have been converted into small-claims tribunals. There is little justification for making such a claim a federal case, requiring a decision by a district court, an appeal as a matter of right to a court of appeals, and potentially, consideration of a petition for certiorari in this Court. It is not in the interest of claimants or of society for disputes of this kind to be resolved by litigation that may take years, particularly in an overburdened federal system that never was designed to be utilized in this way. Congress, recognizing the problem with respect to prisoner petitions, enacted last year the Civil Rights of Institutionalized Persons Act, Pub.L. 96-247, 94 Stat. 349, authorizing federal courts to continue § 1983 prisoner cases for up to 90 days to allow recourse to administrative remedies. The grievance procedures, however, must be certified by the Attorney General or determined by the court to be in compliance with not insubstantial procedural requirements. Id., § 7, 42 U.S.C. § 1997e (1976 ed., Supp. IV). As a result, the Act continues to allow resort to the federal courts in many cases of this kind. In view of increasing damages-suit litigation under § 1983, and the inability of courts to identify principles that can be applied consistently, perhaps the time has come for a revision of this century-old statute—a revision that would clarify its scope while preserving its historical function of protecting individual rights from unlawful state action.
1
To be sure, the state remedies would not have afforded respondent all the relief that would have been available in a § 1983 action. See ante, at 543-544. I nonetheless agree with the majority that "they are sufficient to satisfy the requirements of due process." Ante, at 544.
2
In fact, the prison officials did not raise the issue of the availability of a state-law remedy in either the District Court or the Court of Appeals. The issue was first presented in the petition for rehearing filed in the Court of Appeals.
| 12
|
451 U.S. 504
101 S.Ct. 1895
68 L.Ed.2d 402
Joseph ALESSI et al., Appellants,v.RAYBESTOS-MANHATTAN, INC., et al. Henry BUCZYNSKI et al., Petitioners, v. The GENERAL MOTORS CORPORATION et al.
Nos. 79-1943, 80-193.
Argued March 4, 1981.
Decided May 18, 1981.
Syllabus
In two suits initiated in New Jersey state court, retired employees who had received workers' compensation awards subsequent to retirement challenged the validity of provisions in their employers' pension plans reducing a retiree's pension benefits by an amount equal to a workers' compensation award for which the retiree is eligible. These private pension plans are subject to federal regulation under the Employee Retirement Income Security Act of 1974 (ERISA). The employers independently removed the suits to Federal District Court, where the judges in each suit held that the pension offset provisions were invalid under a provision of the New Jersey Workers' Compensation Act prohibiting such offsets; that Congress had not intended ERISA to pre-empt such state laws; that the offsets were prohibited by ERISA's provision, 29 U.S.C. § 1053(a), prohibiting forfeitures of pension rights except under specified conditions inapplicable to these cases; and that a Treasury Regulation authorizing offsets based on workers' compensation awards was invalid. The Court of Appeals consolidated appeals from the two decisions and reversed.
Held :
1. Congress contemplated and approved the kind of pension provisions challenged here. Pp. 509-521.
(a) Pension plan provisions for offsets based on workers' compensation awards do not contravene ERISA's nonforfeiture provisions. While § 1053(a) prohibits forfeitures of vested rights, with specified exceptions that do not include workers' compensation offsets, nevertheless other provisions make it clear that ERISA leaves to the private parties creating the pension plan the determination of the content or amount of benefits that, once vested, cannot be forfeited. The statutory definition of "nonforfeitable" pension benefits, 29 U.S.C. § 1002(19), assures that an employee's claim to the protected benefit is legally enforceable, but it does not guarantee a particular amount or a method for calculating the benefit. Cf. Nachman Corp. v. Pension Benefit Guaranty Corp., 446 U.S. 359, 100 S.Ct. 1723, 64 L.Ed.2d 354. It is particularly pertinent that Congress did not prohibit "integration," a calculation practice under which benefit levels are determined by combining pension funds with other public income streams available to the retired employee. Rather, Congress accepted the practice by expressly preserving the option of pension fund integration with benefits available under both the Social Security Act and the Railroad Retirement Act. Offsets against pension benefits for workers' compensation awards work much like the integration of pension benefits with Social Security or Railroad Retirement payments, and thus the nonforfeiture provision of § 1053(a) has no more applicability to the former kind of integration than it does to the latter. Pp. 510-517.
(b) Although neither ERISA nor its legislative history mentions integration with workers' compensation, ERISA does not forbid the Treasury Regulation permitting reductions of pension benefits based on awards under state workers' compensation laws, or Internal Revenue Service rulings to the same effect. There is no merit in the argument that integration of pension funds with workers' compensation awards, which are based on work-related injuries, lacks the rationale behind ERISA's permission of integration of pension funds with Social Security and Railroad Retirement payments, which supply payments for wages lost due to retirement. Both the Social Security and Railroad Retirement Acts also provide payments for disability, and ERISA permits pension integration with such benefits as well as with benefits for wages lost due to retirement. Moreover, when it enacted ERISA, Congress knew of the IRS rulings permitting integration with workers' compensation benefits and left them in effect. Pp. 517-521.
2. The New Jersey statute in question is pre-empted by federal law insofar as it eliminates a method for calculating pension benefits under plans governed by ERISA. The provision of ERISA, 29 U.S.C. § 1144(a), stating that the Act's provisions shall supersede any state laws that "relate to any [covered] employee benefit plan," demonstrates that Congress meant to establish pension plan regulation as exclusively a federal concern. Regardless of whether the purpose of the New Jersey statute might have been to protect the employee's right to workers' compensation disability benefits rather than to regulate pension plans, the statute "relate[s] to pension plans" governed by ERISA because it eliminates one method for calculating pension benefits—integration—that is permitted by federal law, and the state provision thus is an impermissible intrusion on the federal regulatory scheme. It is of no moment that New Jersey intrudes indirectly, through a workers' compensation law, rather than directly, through a statute called "pension regulation," since ERISA makes clear that even indirect state action bearing on private pensions may encroach upon the area of exclusive federal concern. Moreover, where, as here, pension plans emerge from collective bargaining, the additional federal interest in precluding state interference in labor-management negotiations calls for pre-emption of state efforts to regulate pension terms. Pp. 521-526.
616 F.2d 1238, affirmed.
Theodore Sachs, Detroit, Mich., for appellants in No. 79-1943.
Marc C. Gettis, Roselle Park, N. J., for petitioners in No. 80-193.
Laurence Reich, Newark, N. J., for respondent in No. 80-193.
Warren J. Casey, Morristown, N. J., for appellees in No. 79-1943.
Justice MARSHALL delivered the opinion of the Court.
1
Some private pension plans reduce a retiree's pension benefits by the amount of workers' compensation awards received subsequent to retirement. In these cases we consider whether two such offset provisions are lawful under the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 829, as amended, 29 U.S.C. § 1001 et seq. (1976 ed. and Supp. III), and whether they may be prohibited by state law.
2
* Raybestos-Manhattan, Inc., and General Motors Corp. maintain employee pension plans that are subject to federal regulation under ERISA. Both plans provide that an employee's retirement benefits shall be reduced, or offset, by an amount equal to workers' compensation awards for which the individual is eligible.1 In 1977, the New Jersey Legislature amended its Workers' Compensation Act to expressly prohibit such offsets. The amendment states that "[t]he right of compensation granted by this chapter may be set off against disability pension benefits or payments but shall not be set off against employees' retirement pension benefits or payments." N.J.Stat.Ann. § 34:15-29 (West Supp. 1980-1981) (as amended by 1977 N.J.Laws, ch. 156).
3
Alleging violations of this provision of state law, two suits were initiated in New Jersey state court. The plaintiffs in both suits were retired employees who had obtained workers' compensation awards subject to offsets against their retirement benefits under their pension plans.2 The defendant companies independently removed the suits to the United States District Court for the District of New Jersey. There, both District Court Judges ruled that the pension offset provisions were invalid under New Jersey law, and concluded that Congress had not intended ERISA to pre-empt state laws of this sort. The District Court Judges also held that the offsets were prohibited by § 203(a) of ERISA, 29 U.S.C. § 1053(a). This section prohibits forfeitures of vested pension rights except under four specific conditions inapplicable to these cases.3 The judges concluded that offsets based on workers' compensation awards would be forbidden forfeitures, and struck down a contrary federal Treasury Regulation authorizing such offsets.4
4
The United States Court of Appeals for the Third Circuit consolidated the appeals from these two decisions and reversed. 616 F.2d 1238 (1980). It rejected the District Court Judges' view that the offset provisions caused a forfeiture of vested pension rights forbidden by § 1053. Instead, the Court of Appeals reasoned, such offsets merely reduce pension benefits in a fashion expressly approved by ERISA for employees receiving Social Security benefits. Accordingly, the Court of Appeals found no conflict between ERISA and the Treasury Regulation approving reductions based on workers' compensation awards and ERISA. Finally, the court concluded that the New Jersey statute forbidding offsets of pension benefits by the amount of workers' compensation awards could not withstand ERISA's general pre-emption provision, 29 U.S.C. § 1144(a). We noted probable jurisdiction of the appeal taken by the former employees of Raybestos-Manhattan, Inc., and granted certiorari on the petition of former employees of General Motors Corp. 449 U.S. 949 and 950, 101 S.Ct. 351 and 352, 66 L.Ed.2d 213 (1980). For convenience, we refer to the former employees in both cases as retirees. We affirm the judgment of the Court of Appeals.
II
5
Retirees claim that the workers' compensation offset provisions of their pension plans contravene ERISA's nonforfeiture provisions and that the Treasury Regulation to the contrary is inconsistent with the Act. Both claims require examination of the relevant sections of ERISA.
6
* As we recently observed, ERISA is a "comprehensive and reticulated statute," which Congress adopted after careful study of private retirement pension plans. Nachman Corp. v. Pension Benefit Guaranty Corp., 446 U.S. 359, 361, 100 S.Ct. 1723, 1726, 64 L.Ed.2d 354 (1980). In Nachman, we observed that Congress through ERISA wanted to ensure that "if a worker has been promised a defined pension benefit upon retirement—and if he has fulfilled whatever conditions are required to obtain a vested benefit—. . . he actually receives it." Id., at 375, 100 S.Ct., at 1733.5 For this reason, the concepts of vested rights and nonforfeitable rights are critical to the ERISA scheme. See id., at 370, 378, 100 S.Ct., at 1730, 1734. ERISA prescribes vesting and accrual schedules, assuring that employees obtain rights to at least portions of their normal pension benefits even if they leave their positions prior to retirement.6 Most critically, ERISA establishes that "[e]ach pension plan shall provide that an employee's right to his normal retirement benefit is nonforfeitable upon the attainment of normal retirement age." 29 U.S.C. § 1053(a).7
7
Retirees rely on this sweeping assurance that pension rights become nonforfeitable in claiming that offsetting those benefits with workers' compensation awards violates ERISA. Retirees argue first that no vested benefits may be forfeited except as expressly provided in § 1053. Second, retirees assert that offsets based on workers' compensation fall into none of those express exceptions. Both claims are correct; § 1053(a) prohibits forfeitures of vested rights except as expressly provided in § 1053(a)(3), and the challenged workers' compensation offsets are not among those permitted in that section.8
8
Despite this facial accuracy, retirees' argument overlooks a threshold issue: what defines the content of the benefit that, once vested, cannot be forfeited? ERISA leaves this question largely to the private parties creating the plan. That the private parties, not the Government, control the level of benefits is clear from the statutory language defining nonforfeitable rights as well as from other portions of ERISA. ERISA defines a "nonforfeitable" pension benefit or right as "a claim obtained by a participant or his beneficiary to that part of an immediate or deferred benefit under a pension plan which arises from the participant's service, which is unconditional, and which is legally enforceable against the plan." 29 U.S.C. § 1002(19). In construing this definition last Term, we observed:
9
"[T]he term 'forfeiture' normally connotes a total loss in consequence of some event rather than a limit on the value of a person's rights. Each of the examples of a plan provision that is expressly described as not causing a forfeiture listed in [§ 1053(a)(3)] describes an event—such as death or temporary re-employment—that might otherwise be construed as causing a forfeiture of the entire benefit. It is therefore surely consistent with the statutory definition of "nonforfeitable" to view it as describing the quality of the participant's right to a pension rather than a limit on the amount he may collect." Nachman Corp. v. Pension Benefit Guaranty Corp., 446 U.S., at 372-373, 100 S.Ct., at 1731-1732.
10
Similarly, the statutory definition of "nonforfeitable" assures that an employee's claim to the protected benefit is legally enforceable, but it does not guarantee a particular amount or a method for calculating the benefit. As we explained last Term, "it is the claim to the benefit, rather than the benefit itself, that must be 'unconditional' and 'legally enforceable against the plan.' " Id., at 371, 100 S.Ct., at 1731.
11
Rather than imposing mandatory pension levels or methods for calculating benefits, Congress in ERISA set outer bounds on permissible accrual practices, 29 U.S.C. § 1054(b)(1), and specified three alternative schedules for the vesting of pension rights, 29 U.S.C. § 1053(a)(2). In so doing, Congress limited the variation permitted in accrual rates applicable across the entire period of an employee's participation in the pension plan.9 And Congress disapproved pension practices unduly delaying an employee's acquisition of a right to enforce payment of the portion of benefits already accrued, without further employment.10 These provisions together assure at minimum a legally enforceable claim to 100% of the pension benefits created by a covered plan for those employees who have completed 15 years of service and for those employees aged 45 or older who have completed 10 years of service.11 Other than these restrictions, ERISA permits the total benefit levels and formulas for determining their accrual before completion of 15 years of service to vary from plan to plan. See 29 U.S.C. §§ 1002(22), (23) (benefits defined merely as those "under the plan").
12
It is particularly pertinent for our purposes that Congress did not prohibit "integration," a calculation practice under which benefit levels are determined by combining pension funds with other income streams available to the retired employees. Through integration, each income stream contributes for calculation purposes to the total benefit pool to be distributed to all the retired employees, even if the nonpension funds are available only to a subgroup of the employees. The pension funds are thus integrated with the funds from other income maintenance programs, such as Social Security, and the pension benefit level is determined on the basis of the entire pool of funds. Under this practice, an individual employee's eligibility for Social Security would advantage all participants in his private pension plan, for the addition of his anticipated Social Security payments to the total benefit pool would permit a higher average pension payout for each participant. The employees as a group profit from that higher pension level, although an individual employee may reach that level by a combination of payments from the pension fund and payments from the other income maintenance source. In addition, integration allows the employer to attain the selected pension level by drawing on the other resources, which, like Social Security, also depend on employer contributions.
13
Following its extensive study of private pension plans before the adoption of ERISA, Congress expressly preserved the option of pension fund integration with benefits available under both the Social Security Act, 42 U.S.C. § 401 et seq. (1976 ed. and Supp. III), and the Railroad Retirement Act of 1974, 45 U.S.C. § 231 et seq. (1976 ed. and Supp. III); 29 U.S.C. §§ 1054(b)(1)(B)(iv), 1054(b)(1)(C), 1054(b)(1)(G). Congress was well aware that pooling of nonpension retirement benefits and pension funds would limit the total income maintenance payments received by individual employees and reduce the cost of pension plans to employers. Indeed, in considering this integration option, the House Ways and Means Committee expressly acknowledged the tension between the primary goal of benefiting employees and the subsidiary goal of containing pension costs. The Committee Report noted that the proposed bill would
14
"not affect the ability of plans to use the integration procedures to reduce the benefits that they pay to individuals who are currently covered when social security benefits are liberalized. Your committee, however, believes that such practices raise important issues. On the one hand, the objective of the Congress in increasing social security benefits might be considered to be frustrated to the extent that individuals with low and moderate incomes have their private retirement benefits reduced as a result of the integration procedures. On the other hand, your committee is very much aware that many present plans are fully or partly integrated and that elimination of the integration procedures could substantially increase the cost of financing private plans. Employees, as a whole, might be injured rather than aided if such cost increases resulted in slowing down the growth or perhaps even eliminat[ing] private retirement plans." H.R.Rep.No.93-807, p. 69 (1974), reprinted in 2 Legislative History of the Employee Retirement Income Security Act of 1974 (Committee Print compiled for the Senate Committee on Labor and Public Welfare) 3189 (1976) (Leg.Hist.)12
15
The Committee called for further study of the problem and recommended that Congress impose a restriction on integration of pension benefits with Social Security and Railroad Retirement payments. Congress adopted this recommendation and forbade any reductions in pension payments based on increases in Social Security or Railroad Retirement benefits authorized after ERISA took effect. 29 U.S.C. § 1056(b). See 29 U.S.C. §§ 1054(b)(1)(B)(iv), 1054(b)(1)(C); H.R.Rep.No.93-807, at 69, 2 Leg.Hist. 3189; U.S.Code Cong. & Admin.News 1974, p. 4639. See also 26 U.S.C. § 401(a)(15).
16
In setting this limitation on integration with Social Security and Railroad Retirement benefits, Congress acknowledged and accepted the practice, rather than prohibiting it. Moreover, in permitting integration at least with these federal benefits, Congress did not find it necessary to add an exemption for this purpose to its stringent nonforfeiture protections in 29 U.S.C. § 1053(a). Under these circumstances, we are unpersuaded by retirees' claim that the nonforfeiture provisions by their own force prohibit any offset of pension benefits by workers' compensation awards. Such offsets work much like the integration of pension benefits with Social Security or Railroad Retirement payments. The individual employee remains entitled to the established pension level, but the payments received from the pension fund are reduced by the amount received through workers' compensation. The nonforfeiture provision of § 1053(a) has no more applicability to this kind of integration than it does to the analogous reduction permitted for Social Security or Railroad Retirement payments. Indeed, the same congressional purpose promoting a system of private pensions by giving employers avenues for cutting the cost of their pension obligations—underlies all such offset possibilities.
17
Nonetheless, ERISA does not mention integration with workers' compensation, and the legislative history is equally silent on this point. An argument could be advanced that Congress approved integration of pension funds only with the federal benefits expressly mentioned in the Act. A current regulation issued by the Internal Revenue Service, however, goes further, and permits integration with other benefits provided by federal or state law. We now must consider whether this regulation is itself consistent with ERISA.
B
18
Codified at 26 CFR §§ 1.411(a)-(4)(a) (1980), the Treasury Regulation provides that "nonforfeitable rights are not considered to be forfeitable by reason of the fact that they may be reduced to take into account benefits which are provided under the Social Security Act or under any other Federal or State law and which are taken into account in determining plan benefits." The Regulation interprets 26 U.S.C. § 411, the section of the Internal Revenue Code which replicates for IRS purposes ERISA's nonforfeiture provision, 29 U.S.C. § 1053(a).13 The Regulation plainly encompasses awards under state workers' compensation laws. In addition, in Revenue Rulings issued prior to ERISA, the IRS expressly had approved reductions in pension benefits corresponding to workers' compensation awards. See, e. g., Rev.Rul. 69-421, Part 4(j), 1969-2 Cum.Bull. 72; Rev.Rul. 68-243, 1968-1 Cum.Bull. 157.14
19
Retirees contend that the Treasury Regulation and IRS rulings to this effect contravene ERISA. They object first that ERISA's approval of integration was limited to Social Security and Railroad Retirement payments. This objection is precluded by our conclusion that reduction of pension benefits based on the integration procedure are not per se prohibited by § 1053(a), for the level of pension benefits is not prescribed by ERISA. Retirees' only remaining objection is that workers' compensation awards are so different in kind from Social Security and Railroad Retirement payments that their integration could not be authorized under the same rubric.
20
Developing this argument, retirees claim that workers' compensation provides payments for work-related injuries, while Social Security and Railroad Retirement supply payments solely for wages lost due to retirement. Because of this distinction, retirees conclude that integration of pension funds with workers' compensation awards lacks the rationale behind integration of pension funds with Social Security and Railroad Retirement. Retirees' claim presumes that ERISA permits integration with Social Security or Railroad Retirement only where there is an identity between the purposes of pension payments and the purposes of the other integrated benefits. But not even the funds that the Congress clearly has approved for integration purposes share the identity of purpose ascribed to them by petitioners. Both the Social Security and Railroad Retirement Acts provide payments for disability as well as for wages lost due to retirement, and ERISA permits pension integration without distinguishing these different kinds of benefits.
21
Furthermore, when it enacted ERISA, Congress knew of the IRS rulings permitting integration and left them in effect.15 These rulings do not draw the line between permissible and impermissible integration where retirees would prefer them to, and instead they include workers' compensation offsets within the ambit of permissible integration. The IRS rulings base their allowance of pension payment integration on three factors: the employer must contribute to the other benefit funds, these other funds must be designed for general public use, and the benefits they supply must correspond to benefits available under the pension plan. The IRS employed these considerations in approving integration with workers' compensation benefits. E. g., Rev.Rul. 69-421, Part 4(j), 1969-2 Cum.Bull. 72; Rev.Rul. 68-243, 1968-1 Cum.Bull. 157. In contrast, the IRS has disallowed offsets of pension benefits with damages recovered by an employee through a common-law action against the employer. Rev.Rul. 69-421, Part 4(j)(4), 1969-2 Cum.Bull. 72; Rev.Rul. 68-243, 1968-1 Cum.Bull. 157-158.16 The IRS also has not permitted integration with reimbursement for medical expenses or with fixed sums made for bodily impairment because such payments do not match up with any benefits available under a pension plan qualified under the Internal Revenue Code and ERISA. Rev.Rul. 78-178, 1978-1 Cum.Bull. 118.17 Similarly, the IRS has disapproved integration with unemployment compensation, for, as payment for temporary layoffs, it too is a kind of benefit not comparable to any permitted in a qualified pension plan. Id., at 117-118.
22
Without speaking directly of its own rationale, Congress embraced such IRS rulings. See H.R.Conf.Rep.No.93-1280, p. 277 (1974), 3 Leg.Hist. 4544 (approving existing antidiscrimination rules). Congress thereby permitted integration along the lines already approved by the IRS which had specifically allowed pension benefit offsets based on workers' compensation. Our judicial function is not to second-guess the policy decisions of the legislature, no matter how appealing we may find contrary rationales.
23
As a final argument, retirees claim that we should defer to the policy decisions of the state legislature. To this claim we now turn.
III
24
The New Jersey Legislature attempted to outlaw the offset clauses by providing that "[t]he right of compensation granted by [the New Jersey Workers' Compensation Act] may be set off against disability pension benefits or payments but shall not be set off against employees' retirement pension benefits or payments." N.J.Stat.Ann. § 34:15-29 (West Supp.1980) (emphasis added).18 To resolve retirees' claim that this state policy should govern, we must determine whether such state laws are pre-empted by ERISA. Our analysis of this problem must be guided by respect for the separate spheres of governmental authority preserved in our federalist system. Although the Supremacy Clause invalidates state laws that "interfere with, or are contrary to the laws of Congress . . .," Gibbons v. Ogden, 9 Wheat. 1, 211, 6 L.Ed. 23 (1824), the " 'exercise of federal supremacy is not lightly to be presumed,' " New York Dept. of Social Services v. Dublino, 413 U.S. 405, 413, 93 S.Ct. 2507, 2513, 37 L.Ed.2d 688 (1973), quoting Schwartz v. Texas, 344 U.S. 199, 203, 73 S.Ct. 232, 235, 97 L.Ed. 231 (1952). As we recently reiterated "[p]re-emption of state law by federal statute or regulation is not favored '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.' " Chicago & North Western Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 317, 101 S.Ct. 1124, 1130, 67 L.Ed.2d 258 (1981), quoting Florida Lime & Avocado Growers v. Paul, 373 U.S. 132, 142, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248 (1963). See Jones v. Rath Packing Co., 430 U.S. 519, 525-526, 97 S.Ct. 1305, 1309-1310, 51 L.Ed.2d 604 (1977); Perez v. Campbell, 402 U.S. 637, 649, 91 S.Ct. 1704, 1711, 29 L.Ed.2d 233 (1971); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947); Hines v. Davidowitz, 312 U.S. 52, 61-62, 61 S.Ct. 399, 401-402, 85 L.Ed. 581 (1941).
25
In this instance, we are assisted by an explicit congressional statement about the pre-emptive effect of its action. The same chapter of ERISA that defines the scope of federal protection of employee pension benefits provides that
26
"the provisions of this subchapter . . . shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 1003(a) of this title and not exempt under section 1003(b) of this title." 29 U.S.C. § 1144(a).
27
This provision demonstrates that Congress intended to depart from its previous legislation that "envisioned the exercise of state regulation power over pension funds," Malone v. White Motor Corp., 435 U.S. 497, 512, 514, 98 S.Ct. 1185, 1193, 1194, 55 L.Ed.2d 443 (1978) (plurality opinion), and meant to establish pension plan regulation as exclusively a federal concern.19 But for the pre-emption provision to apply here, the New Jersey law must be characterized as a state law "that relate[s] to any employee benefit plan." 29 U.S.C. § 1144(a).20 That phrase gives rise to some confusion where, as here, it is asserted to apply to a state law ostensibly regulating a matter quite different from pension plans. The New Jersey law governs the State's workers' compensation awards, which obviously are subject to the State's police power. As a result, one of the District Court Judges below concluded that the New Jersey provision "is in no way concerned with pension plans qua pension plans. On the contrary, the New Jersey statute is solely concerned with protecting the employee's right to worker's compensation disability benefits." Buczynski v. General Motors Corp., 456 F.Supp. 867, 873 (NJ 1978). Similarly, the other District Court Judge below reasoned that the New Jersey law "only has a collateral effect on pension plans." Alessi v. Raybestos-Manhattan, Inc., Civ. No. 78-0434 (NJ, Feb. 15, 1979). The Court of Appeals rejected these analyses on two grounds. It read the "relate to pension plans" language in "its normal dictionary sense" as indicating a broad pre-emptive intent, and it also reasoned that the "only purpose and effect of the [New Jersey] statute is to set forth an additional statutory requirement for pension plans," a purpose not permitted by ERISA. 616 F.2d, at 1250 (emphasis in original).
28
We agree with the conclusion reached by the Court of Appeals but arrive there by a different route. Whatever the purpose or purposes of the New Jersey statute, we conclude that it "relate[s] to pension plans" governed by ERISA because it eliminates one method for calculating pension benefits—integration—that is permitted by federal law. ERISA permits integration of pension funds with other public income maintenance moneys for the purpose of calculating benefits, and the IRS interpretation approves integration with the exact funds addressed by the New Jersey workers' compensation law. New Jersey's effort to ban pension benefit offsets based on workers' compensation applies directly to this calculation technique. We need not determine the outer bounds of ERISA's pre-emptive language to find this New Jersey provision an impermissible intrusion on the federal regulatory scheme.21
29
It is of no moment that New Jersey intrudes indirectly, through a workers' compensation law, rather than directly, through a statute called "pension regulation." ERISA makes clear that even indirect state action bearing on private pensions may encroach upon the area of exclusive federal concern. For the purposes of the pre-emption provision, ERISA defines the term "State" to include: "a State, any political subdivision thereof, or any agency or instrumentality of either, which purports to regulate, directly or indirectly, the terms and conditions of employee benefit plans covered by this subchapter." 29 U.S.C. § 1144(c)(2) (emphasis added). ERISA's authors clearly meant to preclude the States from avoiding through form the substance of the pre-emption provision.
30
Another consideration bolsters our conclusion that the New Jersey provision is pre-empted insofar as it bears on pensions regulated by ERISA. ERISA leaves integration, along with other pension calculation techniques, subject to the discretion of pension plan designers. See supra, at 514-516. Where, as here, the pension plans emerge from collective bargaining, the additional federal interest in precluding state interference with labor-management negotiations calls for pre-emption of state efforts to regulate pension terms. See Teamsters v. Oliver, 358 U.S. 283, 296, 79 S.Ct. 297, 304, 3 L.Ed.2d 312 (1959); Railway Employees v. Hanson, 351 U.S. 225, 232, 76 S.Ct. 714, 718, 100 L.Ed. 1112 (1956). Cf. Motor Coach Employees v. Lockridge, 403 U.S. 274, 91 S.Ct. 1909, 29 L.Ed.2d 473 (1971); San ¢s526¢s Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959).22 As a subject of collective bargaining, pension terms themselves become expressions of federal law, requiring pre-emption of intrusive state law.23
IV
31
We conclude that N.J.Stat.Ann. § 34:15-29 (West Supp.1980) is pre-empted by federal law insofar as it bears on pension plans governed by ERISA. We find further that Congress contemplated and approved the kind of pension provisions challenged here, which permit offsets of pension benefits based on workers' compensation awards. The decision of the Court of Appeals is
32
Affirmed.
33
Justice BRENNAN took no part of the decision in these cases.
1
The Raybestos-Manhattan, Inc., plan provides:
"All Retirement Income payments shall be reduced by the entire amount of any and all payments the Member is eligible to receive under any and all statutes pertaining to workmen's compensation, occupational disease, unemployment compensation, cash sickness benefits, and similar laws, other than primary Social Security benefits, Presently in effect or which may be enacted from time to time, which payments are paid concurrently with the Retirement Income."
The offset clause under the General Motors Corp. plan provides:
"In determining the monthly benefits payable under this Plan, a deduction shall be made unless prohibited by law, equivalent to all or any part of Workmen's Compensation (including compromise or redemption settlements) payable to such employee by reason of any law of the United States, or any political subdivision thereof, which has been or shall be enacted, provided that such deductions shall be to the extent that such Workmen's Compensation has been provided by premiums, taxes or other payments paid by or at the expense of the Corporation, except that no deduction shall be made for the following:
"(a) Workmen's Compensation payments specifically allocated for hospitalization or medical expense, fixed statutory payments for the loss of any bodily member, or 100% loss of use of any bodily member, or payments for loss of industrial vision.
"(b) Compromise or redemption settlements payable prior to the date monthly pension benefits first become payable.
"(c) Workmen's Compensation payments paid under a claim filed not later than two years after the breaking of seniority."
2
In No. 79-1943, former employees of Raybestos-Manhattan, Inc., sought permanently to enjoin such offsets and to recover damages for the offsets already made. Similar relief was pursued in No. 80-193, where several former employees of General Motors Corp. brought suit for themselves and on behalf of others similarly situated.
3
See n. 8, infra.
4
The Regulation provides that "nonforfeitable rights are not considered to be forfeitable by reason of the fact that they may be reduced to take into account benefits which are provided under the Social Security Act or under any other Federal or State law and which are taken into account in determining plan benefits." 26 CFR § 1.411(a)-4(a) (1980).
5
In its statement of findings and declaration of policy, Congress noted that "despite the enormous growth in such plans many employees with long years of employment are losing anticipated retirement benefits owing to the lack of vesting provisions in such plans." 29 U.S.C. § 1001(a). ERISA was designed to prescribe minimum vesting and accrual standards in response to such problems. Ibid. To ensure that employee pension expectations are not defeated, the Act establishes minimum rules for employee participation, §§ 1051-1061; funding standards to increase solvency of pension plans, §§ 1081-1085; fiduciary standards for plan managers, §§ 1101-1114; and an insurance program in case of plan termination, §§ 1341-1348 (1976 ed. and Supp. III).
6
ERISA establishes three accrual techniques for pension plans covered by the Act. 29 U.S.C. § 1054(b)(1). See n. 9, infra. Similarly ERISA establishes several approved vesting schedules. Under any of the approved schedules, at a time prior to normal retirement age but after a given period of service or a combination of age and length of service, the employee is to be guaranteed 100% interest in the pension benefit. 29 U.S.C. § 1053(a)(2). See n. 10, infra.
7
ERISA defines "normal retirement benefit" as "the greater of the early retirement benefit under the plan, or the benefit under the plan commencing at normal retirement age." 29 U.S.C. § 1002(22).
8
The statute expressly exempts from its forfeiture ban offsets that: (1) are contingent on the employee's death, 29 U.S.C. § 1053(a)(3)(A); (2) occur when the employee takes a job under certain circumstances, § 1053(a)(3)(B); (3) are due to certain retroactive amendments to a pension plan, § 1053(a)(3)(C); or (4) result from withdrawals of benefits derived from mandatory contributions, § 1053(a)(3)(D). Retirees correctly point out that workers' compensation offsets fall into none of these categories.
9
The three different accrual practices approved for defined benefits plans are described in 29 U.S.C. § 1054(b)(1). One prescribes a minimum percentage of the total retirement benefit that must be accrued in any given year. § 1054(b)(1)(A). Another permits the use of any accrual formula as long as the accrual rate for a given year of service does not vary beyond a specified percentage from the accrual rate of any other year under the plan. § 1054(b)(1)(B). The third is essentially a pro rata rule under which in any given year, the employee's accrued benefit is proportionate to the number of years of service as compared with the number of total years of service appropriate to the normal retirement age. § 1054(b)(1)(C).
10
Congress approved some delay in an employee's acquisition of a vested right to portions of his pension derived from employer contributions. Thus, ERISA specifies that this right could be hinged on a minimum length of service, but an employee reaching the minimum should not lose that right even if he does not continue working for that particular employer until reaching retirement age. That minimum period of service can be calculated under three different formulas, two of which permit gradual vesting of percentages of the accrued benefits over time. Compare 29 U.S.C. § 1053(a)(2)(A) with §§ 1053(a)(2)(B), (C). See also Schiller, Proposed ERISA Vesting Regulations: Not What They Seem To Be, 6 J.Corp.L. 263 (1981) (discussing Internal Revenue Service implementation of vesting provisions). In essence, pension plans qualifying for tax treatment advantageous to the employer both must ensure nonforfeiture of all accrued benefits derived from employee contributions and must use vesting and accrual rates assuring portions of the benefits derived from the employer contributions should the employee leave the job before the normal retirement age. 29 U.S.C. §§ 1053(a)(1), (2).
11
This minimum results from the formulas approving gradual vesting over time of benefits derived from employer contributions. See 29 U.S.C. §§ 1053(a)(2)(B), (C). Alternatively, a plan may comply with ERISA "if an employee who has at least 10 years of service has a nonforfeitable right to 100 percent of his accrued benefit derived from employer contributions." 29 U.S.C. § 1053(a)(2)(A).
12
The vesting, nonforfeiture, and pension benefits provisions of the bill discussed in H.R.Rep.No.93-807 were substantially identical to those portions in the bill ultimately enacted as ERISA. The bill reported out of the Conference Committee included an additional provision to restrict temporarily any increases in pension reductions due to increases in Social Security benefits occurring after December 31, 1971. H.R.Conf.Rep.No.93-1280, p. 131 (1974), 3 Leg.Hist. 4405; U.S.Code Cong. & Admin.News 1974, p. 4639. Senator Harrison Williams explained that this provision ultimately was deleted because:
"We have been told that this will greatly increase the costs of private pension plans, something that I am sure none of the Senators would like to see occur. This is particularly true if these increased pension costs result in the termination of private pension plans. Certainly that is not the intent of this legislation which is designed to improve and encourage the expansion of private pension plans." 120 Cong.Rec. 29928 (1974), 3 Leg.Hist. 4732.
13
The Court of Appeals characterized the Treasury Regulation as a "legislative" regulation, entitled to a more restricted scope of review than is applied to "interpretive rules." 616 F.2d 1238, 1242. Nonetheless, the Government here represents that the Treasury Regulation is an interpretive rule. Brief for United States as Amicus Curiae 19, n.12. Because an agency empowered to enact legislative rules may choose to issue nonlegislative statements, we review this Treasury Regulation under the scrutiny applicable to interpretive rules, with due deference to consistent agency practice. See Batterton v. Francis, 432 U.S. 416, 425, n.9, 97 S.Ct. 2399, 2405, n.9, 53 L.Ed.2d 464 (1977); Batterton v. Marshall, 208 U.S.App.D.C. 321, 332-333, 648 F.2d 694, 705-706 (1980); 2 K. Davis, Administrative Law Treatise § 7.8 (2d ed. 1979).
14
Furthermore, integration with workers' compensation has been approved by the agency created under ERISA to guarantee payment of all nonforfeitable pension benefits despite termination of the relevant pension plan. That agency, the Pension Benefit Guaranty Corporation, has defined the benefits it guarantees to include "a benefit payable as an annuity, or one or more payments related thereto, to a participant who permanently leaves or has permanently left covered employment, or to a surviving beneficiary, which payments by themselves or in combination with Social Security, Railroad Retirement, or workmen's compensation benefits provide a substantially level income to the recipient." 29 CFR § 2605.2 (1980).
15
The House Ways and Means Committee Report proposed codification of the contemporaneous administrative practice developed by the IRS. That practice included IRS approval of integration procedures. See, e. g., 26 CFR § 1.401-3(e) (1973); Rev.Rul. 69-421, Part 4, 1969-2 Cum.Bull. 70-74; Rev.Rul. 12, 1953-1 Cum.Bull. 290. These IRS rulings implemented a provision of the Internal Revenue Code, 26 U.S.C. § 401(a)(4), which forbids favorable tax treatment for pension plans discriminating in favor of company officers, shareholders, or highly compensated employees. The Internal Revenue Code, long before the enactment of ERISA, specified that such forbidden discrimination does not include differences in benefits "because of any retirement benefits created under State or Federal law." 26 U.S.C. § 401(a)(5) (1976 ed., Supp. III). The IRS has consistently interpreted this discrimination provision to permit pension benefit integration with Social Security and other funds receiving employer contributions and making benefits available to the general public. See, e. g., Rev.Rul. 69-4, 1969-1 Cum.Bull. 118; Rev.Rul. 69-5, 1969-1 Cum.Bull. 125; Rev.Rul. 68-243, 1968-1 Cum.Bull. 157; Rev.Rul. 61-75, 1961-1 Cum.Bull. 140. Congress essentially approved these rulings when its Conference Committee reported: "[T]he conferees intend that the antidiscrimination rules of present law in areas other than the vesting schedule are not to be changed. Thus, the present antidiscrimination rules with respect to coverage, and with respect to contributions and benefits are to remain in effect." H.R.Conf.Rep.No.93-1280, p. 277 (1974), 3 Leg.Hist. 4544; U.S.Code Cong. & Admin.News 1974, p. 5058.
16
Retirees argue that workers' compensation should be treated the same as common-law tort damages for the purposes of integration with pension payments. Although workers' compensation resembles tort judgments against employers for employee injuries, there are differences which could explain their different treatment by the IRS. A tort judgment typically represents a finding of the employer's fault for the employee's injury. Workers' compensation, in contrast, is generally available with no showing of an employer's fault or an employee's lack of fault for the work-related injury. 1 A. Larson, Workmen's Compensation Law §§ 2.10, 6.00 (1979). In treating the two sources of payments differently, the IRS may have concluded that workers' compensation is as much an income maintenance program, responding to wage loss, as it is remuneration for injury, and therefore it may be integrated with pension benefits to the advantage of the entire employee group. See generally 4 id., §§ 96.10, 97.10, 97.50. Cf. Richardson v. Belcher, 404 U.S. 78, 83, 92 S.Ct. 254, 258, 30 L.Ed.2d 231 (1971) (reductions of Social Security based on workers' compensation comports with due process). In this light, the agency may well have employed the very rationale proffered by retirees—that two benefits systems must have identical purposes before they may be integrated—and departed from retirees' reasoning only in concluding that these two benefit systems share the same purpose of replacing lost wages, whatever the cause. Regardless of which view of workers' compensation this Court finds most compelling, we must defer to the consistent agency position that is itself reasonable and consonant with the Act.
17
We note that the General Motors offset clause avoids any ambiguity on this point. It disallows deductions for medical expenses or fixed payments for bodily impairment. See n.1, supra. Although the Raybestos-Manhattan, Inc., plan is silent on this point, it is certainly subject to IRS regulation.
18
Adopted as an amendment to the New Jersey Workers' Compensation Act, this provision reversed New Jersey's prior approval of workers' compensation offsets in collectively bargained pension agreements. See, Brief for Appellee New Jersey in No. 79-1943, pp. 6-7.
19
The scope of federal concern is, however, limited by ERISA itself. The statute explicitly preserves state regulation of "insurance, banking, or securities," 29 U.S.C. § 1144(b)(2)(A); and "generally applicable criminal law[s] of a State," § 1144(6)(2)(B)(4). ERISA also exempts from its coverage several kinds of plans, which may be subject to state regulation. §§ 1144(a), 1144(b)(2)(B). See also H.R.Conf.Rep.No.93-1280, p. 383 (1974), 3 Leg.Hist. 4650.
20
ERISA's pre-emption clause exempts state laws relating to pension plans that do not fall within the Act's coverage, see n. 19, supra, but no such exemptions are applicable here. The only exemption with any conceivable relevance pertains to state laws governing plans "maintained solely for the purpose of complying with applicable workmen's compensation laws." 29 U.S.C. § 1003(b)(3). Retirees in No. 80-193 concede that this exception is inapplicable because the General Motors plan is not maintained solely to comply with a workmen's compensation law. Brief for Petitioners in No. 80-193, p. 44.
Retirees in No. 79-1943, however, claim that the exception should apply more generally to plans governed by state workers' compensation laws. They reason that "if a plan which is designed to 'comply with [an] applicable workmen's compensation law' is not preempted by ERISA, then a fortiori the underlying statute with which such plan is permitted to comply equally escapes coverage." Reply Brief for Appellants in No. 79-1943, p. 18. This reasoning wreaks havoc on ERISA's plain language, which pre-empts not plans, but "State laws." 29 U.S.C. § 1144(a). The only relevant state laws, or portions thereof, that survive this pre-emption provision are those relating to plans that are themselves exempted from ERISA's scope. And the relevant exemption from ERISA's coverage for plans maintained solely for compliance with state workers' compensation laws—has no bearing on the plans involved here, which more broadly serve employee needs as a result of collective bargaining. As retirees do not, and cannot, claim that the plans involved here are free from ERISA's coverage, they cannot claim the exception to pre-emption restricted to laws governing such exempted plans.
21
Other courts have reached varying conclusions as to the meaning of ERISA's pre-emptive language in other contexts. See, e. g., American Telephone & Telegraph Co. v. Merry, 592 F.2d 118 (CA2 1979); Stone v. Stone, 450 F.Supp. 919 (N.D.Cal.1978); Gast v. State, 36 Or.App. 441, 585 P.2d 12 (1978). We express no views on the merits of any of those decisions.
22
In light of its reading of ERISA, the Court of Appeals declined to reach the issue of pre-emption under the National Labor Relations Act. 616 F.2d, at 1250, n. 17. The issue was, however, addressed by the District Court below in Alessi v. Raybestos-Manhattan, Inc., Civ. No. 78-0434 (N.J., Feb. 15, 1979). That court reasoned that federal labor law pre-emption does not extend so far as to preclude state regulation of conduct touching deeply rooted local concerns. Ibid. (citing San Diego Building Trades Council v. Garmon, 359 U.S., at 244, 79 S.Ct., at 779. Although this reasoning may apply in other contexts, we do not find it compelling in light of the direct clash between the state statute and the federal policy to keep calculation of pension benefits a subject of either labor-management negotiations or federal legislation. In this context, integration of pension benefits with other public income maintenance funds can be forbidden only by the terms of pension plans themselves, or by new federal legislation.
23
This conclusion follows naturally from the view of a plurality of this Court in Malone v. White Motor Corp., 435 U.S. 497, 98 S.Ct. 1185, 55 L.Ed.2d 443 (1978). There, because Congress preserved a state role in pension regulation before ERISA, the plurality created an exception to the general rule pre-empting state regulation of collective bargaining. Id., at 513-514, 98 S.Ct., at 1194-1195. This exception no longer applies, however, now that ERISA, with express pre-emptive intent, has eliminated state regulation of most pension plans.
| 78
|
451 U.S. 477
101 S.Ct. 1880
68 L.Ed.2d 378
Robert EDWARDS, Petitioner,v.State of ARIZONA.
No. 79-5269.
Argued Nov. 5, 1980.
Decided May 18, 1981.
Rehearing Denied June 22, 1981.
See 452 U.S. 973, 101 S.Ct. 3128.
Syllabus
After being arrested on a state criminal charge, and after being informed of his rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, petitioner was questioned by the police on January 19, 1976, until he said that he wanted an attorney. Questioning then ceased, but on January 20 police officers came to the jail and, after stating that they wanted to talk to him and again informing petitioner of his Miranda rights, obtained his confession when he said that he was willing to talk. The trial court ultimately denied petitioner's motion to suppress his confession, finding the statement to be voluntary, and he was thereafter convicted. The Arizona Supreme Court held that during the January 20 meeting he waived his right to remain silent and his right to counsel when he voluntarily gave his statement after again being informed of his rights.
Held: The use of petitioner's confession against him at his trial violated his right under the Fifth and Fourteenth Amendments to have counsel present during custodial interrogation, as declared in Miranda, supra. Having exercised his right on January 19 to have counsel present during interrogation, petitioner did not validly waive that right on the 20th. Pp. 481-487.
(a) A waiver of the right to counsel, once invoked, not only must be voluntary, but also must constitute a knowing and intelligent relinquishment of a known right or privilege. Here, however, the state courts applied an erroneous standard for determining waiver by focusing on the voluntariness of petitioner's confession rather than on whether he understood his right to counsel and intelligently and knowingly relinquished it. Pp. 482-484.
(b) When an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to police-initiated interrogation after being again advised of his rights. An accused, such as petitioner, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation until counsel has been made available to him, unless the accused has himself initiated further communication, exchanges, or conversations with the police. Here, the interrogation of petitioner on January 20 was at the instance of the authorities, and his confession, made without having had access to counsel did not amount to a valid waiver and hence was inadmissible. Pp. 484-487.
122 Ariz. 206, 594 P.2d 72, reversed.
Michael J. Meehan, Tucson, Ariz., for petitioner.
Crane McClennen, Asst. Atty. Gen., Phoenix, Ariz., for respondent.
Justice WHITE delivered the opinion of the Court.
1
We granted certiorari in this case, 446 U.S. 950, 100 S.Ct. 2915, 64 L.Ed.2d 807 (1980), limited to Q 1 presented in the petition, which in relevant part was "whether the Fifth, Sixth, and Fourteenth Amendments require suppression of a post-arrest confession, which was obtained after Edwards had invoked his right to consult counsel before further interrogation . . . ."
2
* On January 19, 1976, a sworn complaint was filed against Edwards in Arizona state court charging him with robbery, burglary, and first-degree murder.1 An arrest warrant was issued pursuant to the complaint, and Edwards was arrested at his home later that same day. At the police station, he was informed of his rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Petitioner stated that he understood his rights, and was willing to submit to questioning. After being told that another suspect already in custody had implicated him in the crime, Edwards denied involvement and gave a taped statement presenting an alibi defense. He then sought to "make a deal." The interrogating officer told him that he wanted a statement, but that he did not have the authority to negotiate a deal. The officer provided Edwards with the telephone number of a county attorney. Petitioner made the call, but hung up after a few moments. Edwards then said: "I want an attorney before making a deal." At that point, questioning ceased and Edwards was taken to county jail.
3
At 9:15 the next morning, two detectives, colleagues of the officer who had interrogated Edwards the previous night, came to the jail and asked to see Edwards. When the detention officer informed Edwards that the detectives wished to speak with him, he replied that he did not want to talk to anyone. The guard told him that "he had" to talk and then took him to meet with the detectives. The officers identified themselves, stated they wanted to talk to him, and informed him of his Miranda rights. Edwards was willing to talk, but he first wanted to hear the taped statement of the alleged accomplice who had implicated him.2 After listening to the tape for several minutes, petitioner said that he would make a statement so long as it was not tape-recorded. The detectives informed him that the recording was irrelevant since they could testify in court concerning whatever he said. Edwards replied: "I'll tell you anything you want to know, but I don't want it on tape." He thereupon implicated himself in the crime.
4
Prior to trial, Edwards moved to suppress his confession on the ground that his Miranda rights had been violated when the officers returned to question him after he had invoked his right to counsel. The trial court initially granted the motion to suppress,3 but reversed its ruling when presented with a supposedly controlling decision of a higher Arizona court.4 The court stated without explanation that it found Edwards' statement to be voluntary. Edwards was tried twice and convicted.5 Evidence concerning his confession was admitted at both trials.
5
On appeal, the Arizona Supreme Court held that Edwards had invoked both his right to remain silent and his right to counsel during the interrogation conducted on the night of January 19.6 The court then went on to determine, however, that Edwards had waived both rights during the January 20 meeting when he voluntarily gave his statement to the detectives after again being informed that he need not answer questions and that he need not answer without the advice of counsel: "The trial court's finding that the waiver and confession were voluntarily and knowingly made is upheld."
6
Because the use of Edwards' confession against him at his trial violated his rights under the Fifth and Fourteenth Amendments as construed in Miranda v. Arizona, supra, we reverse the judgment of the Arizona Supreme Court.7
II
7
In Miranda v. Arizona, the Court determined that the Fifth and Fourteenth Amendments' prohibition against compelled self-incrimination required that custodial interrogation be preceded by advice to the putative defendant that he has the right to remain silent and also the right to the presence of an attorney. 384 U.S., at 479, 86 S.Ct., at 1630. The Court also indicated the procedures to be followed subsequent to the warnings. If the accused indicates that he wishes to remain silent, "the interrogation must cease." If he requests counsel, "the interrogation must cease until an attorney is present." Id., at 474, 86 S.Ct., at 1627.
8
Miranda thus declared that an accused has a Fifth and Fourteenth Amendment right to have counsel present during custodial interrogation. Here, the critical facts as found by the Arizona Supreme Court are that Edwards asserted his right to counsel and his right to remain silent on January 19, but that the police, without furnishing him counsel, returned the next morning to confront him and as a result of the meeting secured incriminating oral admissions. Contrary to the holdings of the state courts, Edwards insists that having exercised his right on the 19th to have counsel present during interrogation, he did not validly waive that right on the 20th. For the following reasons, we agree.
9
First, the Arizona Supreme Court applied an erroneous standard for determining waiver where the accused has specifically invoked his right to counsel. It is reasonably clear under our cases that waivers of counsel must not only be voluntary, but must also constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege, a matter which depends in each case "upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). See Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975); North Carolina v. Butler, 441 U.S. 369, 374-375, 99 S.Ct. 1755, 1758, 60 L.Ed.2d 286 (1979); Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424 (1977); Fare v. Michael C., 442 U.S. 707, 724-725, 99 S.Ct. 2560, 2571-2572, 61 L.Ed.2d 197 (1979).
10
Considering the proceedings in the state courts in the light of this standard, we note that in denying petitioner's motion to suppress, the trial court found the admission to have been "voluntary," App. 3, 95, without separately focusing on whether Edwards had knowingly and intelligently relinquished his right to counsel. The Arizona Supreme Court, in a section of its opinion entitled "Voluntariness of Waiver," stated that in Arizona, confessions are prima facie involuntary and that the State had the burden of showing by a preponderance of the evidence that the confession was freely and voluntarily made. The court stated that the issue of voluntariness should be determined based on the totality of the circumstances as it related to whether an accused's action was "knowing and intelligent and whether his will [was] overborne." 122 Ariz., at 212, 594 P.2d, at 78. Once the trial court determines that "the confession is voluntary, the finding will not be upset on appeal absent clear and manifest error." Ibid. The court then upheld the trial court's finding that the "waiver and confession were voluntarily and knowingly made." Ibid.
11
In referring to the necessity to find Edwards' confession knowing and intelligent, the State Supreme Court cited Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973). Yet, it is clear that Schneckloth does not control the issue presented in this case. The issue in Schneckloth was under what conditions an individual could be found to have consented to a search and thereby waived his Fourth Amendment rights. The Court declined to impose the "intentional relinquishment or abandonment of a known right or privilege" standard and required only that the consent be voluntary under the totality of the circumstances. The Court specifically noted that the right to counsel was a prime example of those rights requiring the special protection of the knowing and intelligent waiver standard, id., at 241, 93 S.Ct., at 2055, but held that "[t]he considerations that informed the Court's holding in Miranda are simply inapplicable in the present case." Id., at 246, 93 S.Ct., at 2057. Schneckloth itself thus emphasized that the voluntariness of a consent or an admission on the one hand, and a knowing and intelligent waiver on the other, are discrete inquiries. Here, however sound the conclusion of the state courts as to the voluntariness of Edwards' admission may be, neither the trial court nor the Arizona Supreme Court undertook to focus on whether Edwards understood his right to counsel and intelligently and knowingly relinquished it. It is thus apparent that the decision below misunderstood the requirement for finding a valid waiver of the right to counsel, once invoked.
12
Second, although we have held that after initially being advised of his Miranda rights, the accused may himself validly waive his rights and respond to interrogation, see North Carolina v. Butler, supra, 441 U.S., at 372-376, 99 S.Ct., at 1757-1759, the Court has strongly indicated that additional safeguards are necessary when the accused asks for counsel; and we now hold that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.8 We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.
13
Miranda itself indicated that the assertion of the right to counsel was a significant event and that once exercised by the accused, "the interrogation must cease until an attorney is present." 384 U.S., at 474, 86 S.Ct., at 1627. Our later cases have not abandoned that view. In Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), the Court noted that Miranda had distinguished between the procedural safeguards triggered by a request to remain silent and a request for an attorney and had required that interrogation cease until an attorney was present only if the individual stated that he wanted counsel. 423 U.S., at 104, n. 10, 96 S.Ct., at 326, n. 10; see also id., at 109-111, 96 S.Ct., at 329-330 (White, J., concurring). In Fare v. Michael C., supra, 442 U.S., at 719, 99 S.Ct., at 2569, the Court referred to Miranda's "rigid rule that an accused's request for an attorney is per se an invocation of his Fifth Amendment rights, requiring that all interrogation cease." And just last Term, in a case where a suspect in custody had invoked his Miranda right to counsel, the Court again referred to the "undisputed right" under Miranda to remain silent and to be free of interrogation "until he had consulted with a lawyer." Rhode Island v. Innis, 446 U.S. 291, 298, 100 S.Ct. 1682, 1688, 64 L.Ed.2d 297 (1980). We reconfirm these views and, to lend them substance, emphasize that it is inconsistent with Miranda and its progeny for the authorities, at their instance, to reinterrogate an accused in custody if he has clearly asserted his right to counsel.
14
In concluding that the fruits of the interrogation initiated by the police on January 20 could not be used against Edwards, we do not hold or imply that Edwards was powerless to countermand his election or that the authorities could in no event use any incriminating statements made by Edwards prior to his having access to counsel. Had Edwards initiated the meeting on January 20, nothing in the Fifth and Fourteenth Amendments would prohibit the police from merely listening to his voluntary, volunteered statements and using them against him at the trial. The Fifth Amendment right identified in Miranda is the right to have counsel present at any custodial interrogation. Absent such interrogation, there would have been no infringement of the right that Edwards invoked and there would be no occasion to determine whether there had been a valid waiver. Rhode Island v. Innis, supra, makes this sufficiently clear. 446 U.S., at 298, n. 2, 100 S.Ct., at 1688, n. 2.9
15
But this is not what the facts of this case show. Here, the officers conducting the interrogation on the evening of January 19 ceased interrogation when Edwards requested counsel as he had been advised he had the right to do. The Arizona Supreme Court was of the opinion that this was a sufficient invocation of his Miranda rights, and we are in accord. It is also clear that without making counsel available to Edwards, the police returned to him the next day. This was not at his suggestion or request. Indeed, Edwards informed the detention officer that he did not want to talk to anyone. At the meeting, the detectives told Edwards that they wanted to talk to him and again advised him of his Miranda rights. Edwards stated that he would talk, but what prompted this action does not appear. He listened at his own request to part of the taped statement made by one of his alleged accomplices and then made an incriminating statement, which was used against him at his trial. We think it is clear that Edwards was subjected to custodial interrogation on January 20 within the meaning of Rhode Island v. Innis, supra, and that this occurred at the instance of the authorities. His statement made without having had access to counsel, did not amount to a valid waiver and hence was inadmissible.10
16
Accordingly, the holding of the Arizona Supreme Court that Edwards had waived his right to counsel was infirm, and the judgment of that court is reversed.
17
So ordered.
18
Chief Justice BURGER, concurring in the judgment.
19
I concur only in the judgment because I do not agree that either any constitutional standard or the holding of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)—as distinguished from its dicta—calls for a special rule as to how an accused in custody may waive the right to be free from interrogation. The extraordinary protections afforded a person in custody suspected of criminal conduct are not without a valid basis, but as with all "good" things they can be carried too far. The notion that any "prompting" of a person in custody is somehow evil per se has been rejected. Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). For me, the inquiry in this setting is whether resumption of interrogation is a result of a voluntary waiver, and that inquiry should be resolved under the traditional standards established in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938):
20
"A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver . . . must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused."
21
Accord, e. g., Fare v. Michael C., 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979); North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979). In this case, the Supreme Court of Arizona described the situation as follows:
22
"When the detention officer told Edwards that the detectives were there to see him, he told the officer that he did not wish to speak to anyone. The officer told him that he had to." 122 Ariz. 206, 209, 594 P.2d 72, 75 (1979) (emphasis added).
23
This is enough for me, and on this record the Supreme Court of Arizona erred in holding that the resumption of interrogation was the product of a voluntary waiver, such as I found to be the situation in both Innis, supra, 446 U.S., at 304, 100 S.Ct., at 1691 (concurring opinion), and Brewer v. Williams, 430 U.S. 387, 417-418, 97 S.Ct. 1232, 1248-1249, 51 L.Ed.2d 424 (1977) (dissenting opinion).
24
Justice POWELL, with whom Justice REHNQUIST joins, concurring in the result.
25
Although I agree that the judgment of the Arizona Supreme Court must be reversed, I do not join the Court's opinion because I am not sure what it means.
26
I can agree with much of the opinion. It states the settled rule:
27
"It is reasonably clear under our cases that waivers of counsel must not only be voluntary, but must also constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege, a matter which depends in each case 'upon the particular facts and circumstances surrounding that case, including the background, experience and conduct of the accused.' Johnson v. Zerbst, 304 U.S. 458, 464 [58 S.Ct. 1019, 1023, 82 L.Ed. 1461] (1938). Faretta v. California, 422 U.S. 806, 835 [95 S.Ct. 2525, 2541, 45 L.Ed.2d 562] (1975); North Carolina v. Butler, 441 U.S. 369, 374-375 [99 S.Ct. 1755, 1758, 60 L.Ed.2d 286] (1979); Brewer v. Williams, 430 U.S. 387, 404 [97 S.Ct. 1232, 1242, 51 L.Ed.2d 424] (1977); Fare v. Michael C., 442 U.S. 707, 724-725 [99 S.Ct. 2560, 2571-2572, 61 L.Ed.2d 197] (1979)." Ante, at 482-483.
28
I have thought it settled law, as these cases tell us, that one accused of crime may waive any of the constitutional safeguards—including the right to remain silent, to jury trial, to call witnesses, to cross-examine one's accusers, to testify in one's own behalf, and—of course—to have counsel. Whatever the right, the standard for waiver is whether the actor fully understands the right in question and voluntarily intends to relinquish it.
29
In its opinion today, however, the Court—after reiterating the familiar principles of waiver—goes on to say:
30
"We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused [has] himself initiate[d] further communication, exchanges, or conversations with the police." Ante, at 484-485 (emphasis added).
31
In view of the emphasis placed on "initiation," see also ante, at 485-486, n. 9, I find the Court's opinion unclear. If read to create a new per se rule, requiring a threshold inquiry as to precisely who opened any conversation between an accused and state officials, I cannot agree. I would not superimpose a new element of proof on the established doctrine of waiver of counsel.
32
Perhaps the Court's opinion can be read as not departing from established doctrine. Accepting the formulation quoted above, two questions are identifiable: (i) was there in fact "interrogation," see Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), and (ii) did the police "initiate" it? Each of these questions is, of course, relevant to the admissibility of a confession. In this case, for example, it is clear that Edwards was taken from his cell against his will and subjected to renewed interrogation. Whether this is described as police-"initiated" interrogation or in some other way, it clearly was questioning under circumstances incompatible with a voluntary waiver of the fundamental right to counsel.
33
But few cases will be as clear as this one. Communications between police and a suspect in custody are common-place. It is useful to contrast the circumstances of this case with typical, and permissible, custodial communications between police and a suspect who has asked for counsel. For example, police do not impermissibly "initiate" renewed interrogation by engaging in routine conversations with suspects about unrelated matters. And police legitimately may inquire whether a suspect has changed his mind about speaking to them without an attorney. E. g., State v. Turner, 32 Or.App. 61, 65, 573 P.2d 326, 327 (1978); see State v. Crisler, 285 N.W.2d 679, 682 (Minn.1979); State v. Marcum, 24 Wash.App. 441, 445-446, 601 P.2d 975, 978 (1979). It is not unusual for a person in custody who previously has expressed an unwillingness to talk or a desire to have a lawyer, to change his mind and even welcome an opportunity to talk. Nothing in the Constitution erects obstacles that preclude police from ascertaining whether a suspect has reconsidered his original decision. As Justice WHITE has observed, this Court consistently has "rejected any paternalistic rule protecting a defendant from his intelligent and voluntary decisions about his own criminal case." Michigan v. Mosley, 423 U.S. 96, 109, 96 S.Ct. 321, 329, 46 L.Ed.2d 313 (1975) (WHITE, J., concurring in result).1
34
In sum, once warnings have been given and the right to counsel has been invoked, the relevant inquiry—whether the suspect now desires to talk to police without counsel—is a question of fact to be determined in light of all of the circumstances. Who "initiated" a conversation may be relevant to the question of waiver, but it is not the sine qua non to the inquiry. The ultimate question is whether there was a free and knowing waiver of counsel before interrogation commenced.
35
If the Court's opinion does nothing more than restate these principles, I am in agreement with it. I hesitate to join the opinion only because of what appears to be an undue and undefined, emphasis on a single element: "initiation." As Justice WHITE has noted, the Court in Miranda v. Ari- zona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1965), imposed a general prophylactic rule that is not manifestly required by anything in the text of the Constitution. Id., at 526, 86 S.Ct., at 1654 (WHITE, J., dissenting); see Michigan v. Tucker, 417 U.S. 433, 443-444, 94 S.Ct. 2357, 2363, 41 L.Ed.2d 182 (1974). Miranda itself recognized, moreover, that counsel's assistance can be waived. 384 U.S., at 475, 86 S.Ct., at 1628 (opinion of Warren, C. J.). Waiver always has been evaluated under the general formulation of the Zerbst standard quoted above. My concern is that the Court's opinion today may be read as "constitutionalizing" not the generalized Zerbst standard but a single element of fact among the various facts that may be relevant to determining whether there has been a valid waiver.2
1
The facts stated in text are for the most part taken from the opinion of the Supreme Court of Arizona.
2
It appears from the record that the detectives had brought the tape-recording with them.
3
The trial judge emphasized that the detectives had met with Edwards on January 20, without being requested by Edwards to do so, and concluded that they had ignored his request for counsel made the previous evening. App. 91-93.
4
The case was State v. Travis, 26 Ariz.App. 24, 545 P.2d 986 (1976).
5
The jury in the first trial was unable to reach a verdict.
6
This issue was disputed by the State. The court, while finding that the question was arguable, held that Edwards' request for an attorney to assist him in negotiating a deal was "sufficiently clear" within the context of the interrogation that it "must be interpreted as a request for counsel and as a request to remain silent until counsel was present."
7
We thus need not decide Edwards' claim that the State deprived him of his right to counsel under the Sixth and Fourteenth Amendments as construed and applied in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). In that case, the Court held that the Sixth Amendment right to counsel arises whenever an accused has been indicted or adversary criminal proceedings
have otherwise begun and that this right is violated when admissions are subsequently elicited from the accused in the absence of counsel. While initially conceding in its opening brief on the merits that Edwards' right to counsel under Massiah attached immediately after he was formally charged, the State in its supplemental brief and during oral argument took the position that under Kirby v. Illinois, 406 U.S. 682, 689-690, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972), and Moore v. Illinois, 434 U.S. 220, 226-227, 98 S.Ct. 458, 463-464, 54 L.Ed.2d 424 (1977), the filing of the formal complaint did not constitute the "adversary judicial criminal proceedings" necessary to trigger the Sixth Amendment right to counsel. Under the State Constitution, "[n]o person shall be prosecuted criminally in any court of record for felony or misdemeanor, otherwise than by information or indictment; no person shall be prosecuted for felony by information without having had a preliminary examination before a magistrate or having waived such preliminary examination." Ariz.Const., Art. 2, § 30. The State contends that the Sixth Amendment right to counsel does not attach until either the constitutionally required indictment or information is filed or at least no earlier than the preliminary hearing to which a defendant is entitled if the matter proceeds by complaint. Under Arizona law, a felony prosecution may be commenced by way of a complaint, Ariz. Rule of Criminal Procedure 2.2. The complaint is a "written statement of the essential facts constituting a public offense, made upon oath before a magistrate," Rule 2.3, upon which the magistrate either issues an arrest warrant or dismisses the complaint. Rule 2.4. Once arrested, the accused must be taken before the magistrate for a hearing. Rule 4.1. At that hearing, the magistrate ascertains the accused's true name and address, and informs him of the charges against him, his right to counsel, his right to remain silent, and his right to a preliminary hearing if charged via complaint. Rule 4.2. Unless waived, the preliminary hearing must take place no later than 10 days after the defendant is placed in custody. Rule 5.1. The purpose of the hearing is to determine whether probable cause exists to hold the defendant for trial. Rule 5.3. Against this background and in support of its position, the State relies on Moore v. Illinois, supra, where after recognizing that under Illinois law "[t]he prosecution in this case was commenced . . . when the victim's complaint was filed in court," we noted that "adversary judicial criminal proceedings" were initiated when the ensuing preliminary hearing occurred. Moore, supra, at 228, 98 S.Ct., at 464. Cf. United States v. Duvall, 537 F.2d 15, 20-22 (CA2) (the filing of a complaint and the issuance of an arrest warrant does not trigger the right to counsel under the Sixth Amendment, that right accruing only upon further proceedings), cert. denied, 426 U.S. 950, 96 S.Ct. 3173, 49 L.Ed.2d 1188 (1976). The Arizona Supreme Court did not address the Sixth Amendment question, nor do we.
8
In Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 423 (1977), where, as in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), the Sixth Amendment right to counsel had accrued, the Court held that a valid waiver of counsel rights should not be inferred from the mere response by the accused to overt or more subtle forms of interrogation or other efforts to elicit incriminating information. In Massiah and Brewer, counsel had been engaged or appointed and the admissions in question were elicited in his absence. But in McLeod v. Ohio, 381 U.S. 356, 85 S.Ct. 1556, 14 L.Ed.2d 682 (1965), we summarily reversed a decision that the police could elicit information after indictment even though counsel had not yet been appointed.
9
If, as frequently would occur in the course of a meeting initiated by the accused, the conversation is not wholly one-sided, it is likely that the officers will say or do something that clearly would be "interrogation." In that event, the question would be whether a valid waiver of the right to counsel and the right to silence had occurred, that is, whether the purported waiver was knowing and intelligent and found to be so under the totality of the circumstances, including the necessary fact that the accused, not the police, reopened the dialogue with the authorities.
Various decisions of the Courts of Appeals are to the effect that a valid waiver of an accused's previously invoked Fifth Amendment right to counsel is possible. See, e. g., White v. Finkbeiner, 611 F.2d 186, 191 (CA7 1979) ("in certain instances, for various reasons, a person in custody who has previously requested counsel may knowingly and voluntarily decide that he no longer wishes to be represented by counsel"), cert. pending, No. 79-6601; Kennedy v. Fairman, 618 F.2d 1242 (CA7 1980); United States v. Rodriguez-Gastelum, 569 F.2d 482, 486 (CA9) (en banc) (stating that it makes no sense to hold that once an accused has requested counsel, "[he] may never, until he has actually talked with counsel, change his mind and decide to speak with the police without an attorney being present"), cert. denied, 436 U.S. 919, 98 S.Ct. 2266, 56 L.Ed.2d 760 (1978). See generally Cobbs v. Robinson, 528 F.2d 1331, 1342 (CA2 1975); United States v. Grant, 549 F.2d 942 (CA4 1977), vacated on other grounds sub nom. Whitehead v. United States, 435 U.S. 912, 98 S.Ct. 1463, 55 L.Ed.2d 502 (1978); United States v. Hart, 619 F.2d 325 (CA4 1980); United States v. Hauck, 586 F.2d 1296 (CA8 1978). The rule in the Fifth Circuit is that a knowing and intelligent waiver cannot be found once the Fifth Amendment right to counsel has been clearly invoked unless the accused initiates the renewed contact. See, e. g., United States v. Massey, 550 F.2d 300 (1977); United States v. Priest, 409 F.2d 491 (1969). Waiver is possible, however, when the request for counsel is equivocal. Nash v. Estelle, 597 F.2d 513 (CA5 1979) (en banc). See Thompson v. Wainwright, 601 F.2d 768 (CA5 1979).
10
We need not decide whether there would have been a valid waiver of counsel had the events of January 20 been the first and only interrogation to which Edwards had been subjected. Cf. North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979).
1
Justice WHITE noted in Michigan v. Mosley:
"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." 423 U.S., at 109, n. 1, 96 S.Ct., at 329, n. 1 (WHITE, J., concurring in result).
In Michigan v. Mosley, of course, the question was whether a suspect who had invoked his right to remain silent later could change his mind and speak to police. The facts of Mosley differ somewhat from the present case because here petitioner had requested counsel. It is nevertheless true in both cases that "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." Id., at 102, 96 S.Ct., at 326 (opinion of STEWART, J.).
2
Such a step should be taken only if it is demonstrably clear that the traditional waiver standard is ineffective. There is no indication, in the multitude of cases that come to us each Term, that Zerbst and its progeny have failed to protect constitutional rights.
| 01
|
451 U.S. 625
101 S.Ct. 1961
68 L.Ed.2d 495
Antonia BELTRAN, Petitioner,v.Beverlee A. MYERS, Individually and as Director, California State Department of Health, et al.
No. 80-5303.
May 18, 1981.
PER CURIAM.
1
We granted a writ of certiorari, 449 U.S. 951, 101 S.Ct. 353, 66 L.Ed.2d 214 (1980), to review a decision of the United States Court of Appeals for the Ninth Circuit, holding that California's "transfer-of-assets" statute applicable to "medically needy" recipients of Medicaid benefits does not conflict with governing federal law. Dawson v. Myers, 622 F.2d 1304 (1980). Petitioner is an individual considered "medically needy" under California's Medicaid plan,1 who represents the class of all such persons who have been denied Medicaid benefits because of previous transfers of assets for less than full consideration.2 She argues that this exclusion is impermissible because it is based on a rule applicable only to "medically needy" recipients, and could not apply under federal law to "categorically needy" recipients.3
2
After our grant of certiorari on November 3, 1980, Congress passed § 5 of Pub.L. 96-611, 94 Stat. 3567 (Dec. 28, 1980) (the "Boren-Long Amendment"), which made material changes in the law in this area. This section creates a presumption that assets disposed of for less than full consideration within the preceding 24 months should be included in the resources of an applicant for SSI benefits. The applicant can overcome this presumption with "convincing evidence to establish that the transaction was exclusively for some . . . purpose" other than establishing eligibility. § 5(a) (amending § 1613 of the Social Security Act, 42 U.S.C. § 1382b). This section goes on to allow state Medicaid plans to apply similar rules to Medicaid recipients—including both the categorically needy and the medically needy. Pub.L. 96-611, § 5(b), 94 Stat. 3568 (amending § 1902 of the Social Security Act, 42 U.S.C. § 1396a). It states that if the state plan includes a transfer-of-assets rule, it shall specify a procedure for implementing the denial of benefits "which, except as provided in paragraph (2), is not more restrictive than the procedure specified" for SSI. Paragraph (2) provides that where the uncompensated value of the disposed-of resources exceeds $12,000, the States may impose a period of ineligibility exceeding 24 months, as long as this period bears "a reasonable relationship to such uncompensated value."
3
In sum, it would appear that in the future the States will be permitted to impose transfer-of-assets restrictions generally similar to that of California. This change will take effect on July 1, 1981, Pub.L. 96-611, § 2, 94 Stat. 3567—a matter of weeks from now. This raises the question whether it is appropriate for the Court to decide the merits of the underlying dispute as considered by the Court of Appeals.
4
We have determined that the change caused by the recent statutory amendment requires reconsideration of the decision below by the Court of Appeals. Because of the statutory change, the federal standards governing state plans with respect to transfer-of-asset rules have been altered significantly. Although it is fair to say that Congress generally endorsed rules like California's, the detailed provisions recently enacted may require some changes in the California rule. We note in particular that California seems to include the residence of the claimant among the assets that may not be given away without a corresponding loss in Medicaid coverage.4 Under the Boren-Long Amendment, however, arguably such an asset must be excluded.5 Petitioner should have the opportunity to argue the validity of the California law under the new federal law—an issue that was not addressed by the parties in this Court.
5
We vacate the decision below, and remand this case to the Court of Appeals for reconsideration of its decision in light of the recent statutory change.
6
It is so ordered.
7
Justice STEVENS, with whom Justice BRENNAN, Justice WHITE, and Justice MARSHALL join, concurring in the judgment.
8
For the reasons stated by the United States Court of Appeals for the Second Circuit in Caldwell v. Blum, 621 F.2d 491 (1980), cert. pending, No. 79-2034,1 the application of California's "transfer-of-assets" rule to the medically needy class members prior to the effective date of the Boren-Long Amendment, Pub. L. 96-611, 94 Stat. 3567, is prohibited by existing federal law. The judgment of the Court of Appeals for the Ninth Circuit in this case must therefore be set aside. On remand, the Court of Appeals should, of course, consider the impact of the statutory change on the class members' future rights, but it also should determine what relief is appropriate to remedy the past violations.2 Cf. Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358.
9
Accordingly, I concur in the Court's decision to vacate the judgment of the Court of Appeals and to remand this case for further proceedings.
1
"Medically needy" persons are included in the categories of Medicaid recipients—aged, blind, disabled, or dependent children—which are derived from Social Security welfare programs. They have income levels, however, that are too high to qualify for regular income assistance under the Supplemental Security Income (SSI) or Aid to Families with Dependent Children programs, and for this reason are distinguished from "categorically needy" recipients. 42 CFR § 435.4 (1980).
2
The California rule is set out in Cal.Welf. & Inst.Code Ann. § 14015 (West 1980). This statute provides in part:
"[A]ny transfer of the holdings by gift or, knowingly, without adequate and reasonable consideration, shall be presumed to constitute a gift of property with intent to qualify for assistance and such act shall disqualify the owner for further aid for a period determined under standards established by the director, and in no event for less than half of the period that the capital value of the transferred property would have supplied the person's maintenance needs based on his circumstances at the time of his transfer plus the cost of any needed medical care."
3
See n. 1, supra. The categorically needy receive Medicaid benefits merely by virtue of their eligibility for income assistance under the SSI or AFDC programs. Since that eligibility has not, until recently, been conditioned on a person's retention of existing assets, States could not apply a transfer-of-assets disqualification to the categorically needy.
Petitioner's claim here is that she must be accorded the same treatment under the terms of 42 U.S.C. §§ 1396a(a)(10)(C), (17)(B). See also 42 CFR § 435.401 (1980).
4
Petitioner herself was penalized by California for a gift of her home to relatives.
5
The amendment to § 1613 of the Social Security Act, 42 U.S.C. § 1382b, in § 5(a) of Pub.L. 96-611, 94 Stat. 3567, provides for consideration in the SSI program of any disposed of resources "(but subject to the exclusions under subsection (a))." Subsection (a) of § 1613, 42 U.S.C. § 1382b(a), provides for exclusion from consideration of a claimant's home, household effects, and certain other items. If the new law has the effect of allowing uncompensated disposal of these excluded items without corresponding reductions in SSI benefits, it may also have the effect of requiring States to ignore transfer of these same assets in administering Medicaid. See Pub.L. 96-611, § 5(b), 94 Stat. 3568 (providing that the state plan's "procedure" cannot be more restrictive than the rules applicable to SSI, except that the period of ineligibility may be longer than 24 months if the value of the assets exceeds $12,000). See also 126 Cong.Rec. 33928 (1980) (Sen. Long) ("Generally, State [Medicaid] rules could not be more restrictive than the Federal SSI rule except that the period of disqualification could be longer than 24 months in cases where a very large disposal of assets—more than $12,000—is involved"). But see Senate Committee on Finance, Spending Reductions: Recommendations Required by the Reconciliation Process in Section 3(a)(15) of H.Con.Res. 307, the First Budget Resolution for Fiscal Year 1981, 96th Cong., 2d Sess., 20 (Comm. Print 1980) (analysis of an identical amendment of the SSI statute included in S. 2885, 96th Cong., 2d Sess., § 511 (1980)) ("the committee amendment would require that any resources which an individual has given away or sold for less than fair market value would still be considered as available for his support, during the 2 years following the transfer of the asset") (emphasis added).
1
See also Fabula v. Buck, 598 F.2d 869 (CA4 1979); Robinson v. Pratt, 497 F.Supp. 116 (Mass.1980), appeal dism'd, vacated and remanded, 647 F.2d 160 (CA1 1981); Scarpuzza v. Blum, 73 A.D.2d 237, 426 N.Y.S.2d 505 (1980). Cf. Blum v. Caldwell, 446 U.S. 1311, 100 S.Ct. 1635, 64 L.Ed.2d 225 (MARSHALL, J., in chambers).
2
In addition to declaratory and injunctive relief, the plaintiffs seek "reimbursement for those amounts which they had been forced to pay because of the state's transfer rule." Dawson v. Myers, 622 F.2d 1304, 1309 (CA9 1980). The Boren-Long Amendment clearly does not control this claim for reimbursement for sums paid by the plaintiffs in the past.
| 12
|
68 L.Ed.2d 442
101 S.Ct. 1923
451 U.S. 557
J. TRUETT PAYNE COMPANY, INC., Petitioner,v.CHRYSLER MOTORS CORPORATION.
No. 79-1944.
Argued Jan. 21, 1981.
Decided May 18, 1981.
Syllabus
Petitioner, a former automobile dealer, brought suit against respondent automobile manufacturer in Federal District Court, alleging that respondent's "sales incentive" programs over a certain period violated the price-discrimination prohibition of § 2(a) of the Clayton Act, as amended by the Robinson-Patman Act. Under its programs, respondent paid a bonus to its dealers if they exceeded their quotas—set by respondent for each dealer—of cars to be sold at retail or purchased from respondent. Petitioner alleged that respondent set petitioner's quotas higher than those of its competitors; that to the extent it failed to meet its quotas, and to the extent its competitors met their lower quotas, petitioner received fewer bonuses; and that the net effect was that it paid more for its automobiles than did its competitors. Petitioner contended that the amount of the price discrimination the amount of the price difference multiplied by the number of petitioner's purchases—was $81,248, and that when petitioner went out of business, the going-concern value of the business ranged between $50,000 and $170,000. Respondent maintained that the sales incentive programs were nondiscriminatory, and that they did not injure petitioner or adversely affect competition. The jury returned a verdict awarding petitioner $111,247.48 in damages, which the District Court trebled. The Court of Appeals reversed, holding that it was unnecessary to consider whether a violation of § 2(a) had been proved, since petitioner had failed to introduce substantial evidence of injury attributable to the programs, much less substantial evidence of the amount of such injury, as was required in order to recover treble damages under § 4 of the Clayton Act.
Held:
1. Petitioner's contention that once it has proved a price discrimination in violation of § 2(a) it is entitled at a minimum to so-called "automatic damages" in the amount of the price discrimination is without merit. Section 2(a), a prophylactic statute which is violated merely upon a showing that "the effect of such discrimination may be substantially to lessen competition," does not require, for purposes of injunctive actions, that the discrimination must in fact have harmed competition. Corn Products Co. v. FTC, 324 U.S. 726, 65 S.Ct. 961, 89 L.Ed. 1320; FTC v. Morton Salt Co., 334 U.S. 37, 68 S.Ct. 822, 92 L.Ed. 1196. However, under § 4 of the Clayton Act, which is essentially a remedial statute providing treble damages to any person "who shall be injured in his business or property by reason of anything forbidden in the antitrust laws," a plaintiff must make some showing of actual injury attributable to something the antitrust laws were designed to prevent. Thus it must prove more than a violation of § 2(a), since such proof establishes only that injury may result. Cf. Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 97 S.Ct. 690, 50 L.Ed.2d 701. Pp. 561-563.
2. The rule excusing antitrust plaintiffs from an unduly rigorous standard of proving antitrust injury, see, e. g., Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 89 S.Ct. 1562, 23 L.Ed.2d 129, will not be applied here to determine whether petitioner, though not entitled to "automatic damages," has produced enough evidence of actual injury to sustain recovery. While it is a close question whether petitioner's evidence would be sufficient to support a jury award even under such rule, a more fundamental difficulty is that the cases relied upon by petitioner all depend in greater or lesser part on the inequity of a wrongdoer defeating the recovery of damages against him by insisting upon a rigorous standard of proof. In this case, it cannot be said with assurance that respondent is a "wrongdoer" since the Court of Appeals went directly to the issue of damages after bypassing the question whether respondent in fact violated § 2(a). The proper course is to remand the case so that the Court of Appeals may pass upon respondent's contention that the evidence was insufficient to support a finding of such violation. If the court determines that respondent did violate the Act, it should then consider the sufficiency of petitioner's evidence of injury. Pp. 563-568.
607 F.2d 1133, vacated and remanded.
C. Lee Reeves, Birmingham, Ala., for petitioners.
J. Ross Forman, III, Birmingham, Ala., for respondent.
Justice REHNQUIST delivered the opinion of the Court.
1
The question presented in this case is the appropriate measure of damages in a suit brought under § 2(a) of the Clayton Act, as amended by the Robinson-Patman Act.1
2
Petitioner, for several decades a Chrysler-Plymouth dealer in Birmingham, Ala., went out of business in 1974. In subsequently brought suit against respondent in the United States District Court for the Northern District of Alabama, alleging that from January 1970 to May 1974 respondent's various "sales incentive" programs violated § 2(a). Under one type of program, respondent assigned to each participating dealer a sales objective and paid to the dealer a bonus on each car sold in excess of that objective. Under another type of program, respondent required each dealer to purchase from it a certain quota of automobiles before it would pay a bonus on the sale of automobiles sold at retail. The amount of the bonus depended on the number of retail sales (or wholesale purchases) made in excess of the dealer's objective, and could amount to several hundred dollars. Respondent set petitioner's objectives higher than those of its competitors, requiring it to sell (or purchase) more automobiles to obtain a bonus than its competitors. To the extent petitioner failed to meet those objectives and to the extent its competitors met their lower objectives, petitioner received fewer bonuses. The net effect of all this, according to petitioner, was that it paid more money for its automobiles than did its competitors. It contended that the amount of the price discrimination—the amount of the price difference multiplied by the number of petitioner's purchases—was $81,248. It also claimed that the going-concern value of the business as of May 1974 ranged between $50,000 and $170,000.
3
Respondent maintained that the sales incentive programs were nondiscriminatory, and that they did not injure petitioner or adversely affect competition. The District Court denied respondent's motion for a directed verdict. The jury returned a verdict against respondent and awarded petitioner $111,247.48 in damages, which the District Court trebled.
4
The Court of Appeals for the Fifth Circuit reversed with instructions to dismiss the complaint. 607 F.2d 1133 (1979). It found that in order to recover treble damages under § 4 of the Clayton Act, a plaintiff must prove (1) a violation of the antitrust laws, (2) cognizable injury attributable to the violation, and (3) at least the approximate amount of damage. It found it unnecessary to consider whether petitioner proved that respondent's incentive programs violated § 2(a) because, in its view, petitioner had "failed to introduce substantial evidence of injury attributable to the programs, much less substantial evidence of the amount of such injury." Id., at 1135. Rejecting petitioner's theory of "automatic damages," under which mere proof of discrimination establishes the fact and amount of injury, the court held that injury must be proved by more than mere "[c]onclusory statements by the plaintiff, without evidentiary support." Id., at 1136-1137. The court concluded that the District Court erred in refusing respondent's motion for a directed verdict and in denying its motion for judgment notwithstanding the verdict. We granted certiorari, 449 U.S. 819, 101 S.Ct. 70, 66 L.Ed.2d 20 (1980), to review the decision of the Court of Appeals.
5
* Petitioner first contends that once it has proved a price discrimination in violation of § 2(a) it is entitled at a minimum to so-called "automatic damages" in the amount of the price discrimination. Petitioner concedes that in order to recover damages it must establish cognizable injury attributable to an antitrust violation and some approximation of damage. Brief for Petitioner 9. It insists, however, that the jury should be permitted to infer the requisite injury and damage from a showing of a substantial price discrimination. Petitioner notes that this Court has consistently permitted such injury to be inferred in injunctive actions brought to enforce § 2(a), e. g., FTC v. Morton Salt Co., 334 U.S. 37, 68 S.Ct. 822, 92 L.Ed. 1196 (1948), and argues that private suits for damages under § 4 should be treated no differently. We disagree.2
6
By its terms § 2(a) is a prophylactic statute which is violated merely upon a showing that "the effect of such discrimination may be substantially to lessen competition." (Emphasis supplied.) As our cases have recognized, the statute does not "require that the discriminations must in fact have harmed competition." Corn Products Refining Co. v. FTC, 324 U.S. 726, 742, 65 S.Ct. 961, 969, 89 L.Ed. 1320 (1942); FTC v. Morton Salt Co., supra, at 46, 68 S.Ct., at 828 ("the statute does not require the Commission to find that injury has actually resulted"). Section 4 of the Clayton Act, in contrast, is essentially a remedial statute. It provides treble damages to "[a]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws. . . ." (Emphasis supplied.) To recover treble damages, then, a plaintiff must make some showing of actual injury attributable to something the antitrust laws were designed to prevent. Perkins v. Standard Oil Co., 395 U.S. 642, 648, 89 S.Ct. 1871, 1874, 23 L.Ed.2d 599 (1969) (plaintiff "must, of course, be able to show a causal connection between the price discrimination in violation of the Act and the injury suffered.") It must prove more than a violation of § 2(a), since such proof establishes only that injury may result.
7
Our decision here is virtually governed by our reasoning in Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 97 S.Ct. 690, 50 L.Ed.2d 701 (1977). There we rejected the contention that the mere violation of § 7 of the Clayton Act, which prohibits mergers which may substantially lessen competition, gives rise to a damages claim under § 4. We explained that "to recover damages [under § 4] respondents must prove more than that the petitioner violated § 7, since such proof establishes only that injury may result." Id., at 486, 97 S.Ct., at 696. Likewise in this case, proof of a violation does not mean that a disfavored purchaser has been actually "injured" within the meaning of § 4.
8
The legislative history buttresses this view. Both the Patman bill, H.R.8442, § 2(d), 74th Cong., 1st Sess. (1935), as introduced in the House, and the Robinson bill, S.3154, § 2(d), 74th Cong., 2d Sess. (1935), as introduced in the Senate, provided that a plaintiff's damages for a violation of § 2(a) shall be presumed to be the amount of the price discrimination. The provision, however, encountered such strong opposition in both Houses that the House Committee eliminated it from its bill, H.R.Rep.No.2287, 74th Cong., 2d Sess., 16 (1936), and the Senate Committee modified the provision to authorize presumptive damages in the amount of the discrimination only when plaintiff shows the "fact of damage." S.Rep.No.1502, 74th Cong., 2d Sess., 8 (1936). The Conference Committee eliminated even that compromise, and § 2(a) was passed in its present form. Congress thus has rejected the very concept which petitioner seeks to have the Court judicially legislate. Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 199-201, 95 S.Ct. 392, 400, 42 L.Ed.2d 378 (1974).3
II
9
Petitioner next contends that even though it may not be entitled to "automatic damages" upon a showing of a violation of § 2(a), it produced enough evidence of actual injury to survive a motion for a directed verdict. That evidence consisted primarily of the testimony of petitioner's owner, Mr. Payne, and an expert witness, a professor of economics. Payne testified that the price discrimination was one of the causes of the dealership going out of business. In support of that contention, he testified that his salesmen told him that the dealership lost sales to its competitors, and that its market share of retail Chrysler-Plymouth sales in the Birmingham area was 24% in 1970, 27% in 1971, 23% in 1972, and 25% in 1973. Payne contended that it was proper to infer that the 4% drop in 1972 was a result of the incentive programs. He also testified that the discrimination caused him to "force" business so that he could meet his assigned quotas. That is, his desire to make a sale induced him to "overallow" on trade-ins, thus reducing his profits on his used car operation. App. 51-52. Payne adduced evidence showing that his average gross profit on used car sales was below that of his competitors, though that same evidence revealed that his average gross profit on new sales was higher. Id., at 269.
10
Neither Payne nor petitioner's expert witness offered documentary evidence as to the effect of the discrimination on retail prices. Although Payne asserted that his salesmen and customers told him that the dealership was being undersold, id., at 35-37, 92, 95, he admitted he did not know if his competitors did in fact pass on their lower costs to their customers. Id., at 44, 57. Petitioner's expert witness took a somewhat different position. He believed that the discrimination would ultimately cause retail prices to be held at an artificially high level, since petitioner's competitors would not reduce their retail prices as much as they would have done if petitioner received an equal bonus from respondent. Id., at 103, 135. He also testified that petitioner was harmed by the discrimination even if the favored purchasers did not lower their retail prices, since petitioner in that case would make less money per car.4 Id., at 139.
11
Even construed most favorably to petitioner, the evidence of injury is weak. Petitioner nevertheless asks us to consider the sufficiency of its evidence in light of our traditional rule excusing antitrust plaintiffs from an unduly rigorous standard of proving antitrust injury. In Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123-124, 89 S.Ct. 1562, 1576, 23 L.Ed.2d 129 (1969), for example, the Court discussed at some length the fixing of damages in a case involving market exclusion. We accepted the proposition that damages could be awarded on the basis of plaintiff's estimate of sales it could have made absent the violation:
12
"[D]amage issues in these cases are rarely susceptible of the kind of concrete, detailed proof of injury which is available in other contexts. The Court has repeatedly held that in the absence of more precise proof, the factfinder may 'conclude as a matter of just and reasonable inference from the proof of defendants' wrongful acts and their tendency to injure plaintiffs' business, and from the evidence of the decline in prices, profits and values, not shown to be attributable to other causes, that defendants' wrongful acts had caused damage to the plaintiffs.' Bigelow v. RKO Pictures, Inc., supra [327 U.S.], at 264 [66 S.Ct., at 579]. See also Eastman Kodak Co. v. Southern Photo Materials Co., 273 U.S. 359, 377-379 [47 S.Ct. 400, 404, 405, 71 L.Ed. 684] (1927); Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 561-566, 51 S.Ct. 248, 250, 75 L.Ed. 544 (1931)." Ibid.
13
In Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 66 S.Ct. 574, 90 L.Ed. 652 (1946), relied on in Zenith, film distributors had conspired to deny the plaintiff theater access to first-run films. The jury awarded damages based on a comparison of plaintiff's actual profits with the contemporaneous profits of a competing theater with access to first-run films. Plaintiff had also adduced evidence comparing his actual profits during the conspiracy with his profits when he had been able to obtain first-runs. The lower court thought the evidence too imprecise to support the award, but we reversed because the evidence was sufficient to support a "just and reasonable inference" of damage. We explained:
14
"Any other rule would enable the wrongdoer to profit by his wrongdoing at the expense of his victim. It would be an inducement to make wrongdoing so effective and complete in every case as to preclude any recovery, by rendering the measure of damages uncertain. Failure to apply it would mean that the more grievous the wrong done, the less likelihood there would be of a recovery." 327 U.S., at 264-265, 66 S.Ct., at 580.
15
Our willingness to accept a degree of uncertainty in these cases rests in part on the difficulty of ascertaining business damages as compared, for example, to damages resulting from a personal injury or from condemnation of a parcel of land. The vagaries of the marketplace usually deny us sure knowledge of what plaintiff's situation would have been in the absence of the defendant's antitrust violation. But our willingness also rests on the principle articulated in cases such a Bigelow, that it does not " 'come with very good grace' " for the wrongdoer to insist upon specific and certain proof of the injury which it has itself inflicted. Hetzel v. Baltimore & Ohio R. Co., 169 U.S. 26, 39, 18 S.Ct. 255, 260, 42 L.Ed. 648 (1898) (quoting United States Trust Co. v. O'Brien, 143 N.Y. 284, 289, 38 N.E. 266, 267 (1894). Accord, Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 563, 51 S.Ct. 248, 250, 75 L.Ed. 544 (1931) ("Where the tort itself is of such a nature as to preclude the ascertainment of the amount of damages with certainty, it would be a perversion of fundamental principles of justice to deny all relief to the injured person, and thereby relieve the wrongdoer from making any amend for his acts"); Eastman Kodak Co. v. Southern Photo Materials Co., 273 U.S. 359, 379, 47 S.Ct. 400, 405, 71 L.Ed. 684 (1927).
16
Applying the foregoing principles to this case is not without difficulty. In the first place, it is a close question whether petitioner's evidence would be sufficient to support a jury award even under our relaxed damages rules. In those cases where we have found sufficient evidence to permit a jury to infer antitrust injury and approximate the amount of damages, the evidence was more substantial than the evidence presented here. In Zenith, for example, plaintiff compared its sales in Canada, where it was subject to a violation, with its sales in the United States, where it was not. And in Bigelow, plaintiff adduced evidence not only comparing its profits with a competitor not subject to the violation but also comparing its profits during the time of the violation with the period immediately preceding the violation.5
17
But a more fundamental difficulty confronts us in this case. The cases relied upon by petitioner all depend in greater or lesser part on the inequity of a wrongdoer defeating the recovery of damages against him by insisting upon a rigorous standard of proof. In this case, however, we cannot say with assurance that respondent is a "wrongdoer." Because the court below bypassed the issue of liability and went directly to the issue of damages, we simply do not have the benefit of its views as to whether respondent in fact violated § 2(a). Absent such a finding, we decline to apply to this case the lenient damages rules of our previous cases. Had the court below found a violation, we could more confidently consider the adequacy of petitioner's evidence.
18
Accordingly, we think the proper course is to remand the case so that the Court of Appeals may pass upon respondent's contention that the evidence adduced at trial was insufficient to support a finding of violation of the Robinson-Patman Act. We do not ordinarily address for the first time in this Court an issue which the Court of Appeals has not addressed, and we think this would be a poor case in which to depart from that practice. If the court determines on remand that respondent did violate the Act, the court should then consider the sufficiency of petitioner's evidence of injury in light of the cases discussed above. We, of course, intimate no views as to how that issue should be decided. We emphasize that even if there has been a violation of the Robinson-Patman Act, petitioner is not excused from its burden of proving antitrust injury and damages. It is simply that once a violation has been established, that burden is to some extent lightened.
19
For the foregoing reasons, the judgment of the Court of Appeals is vacated, and the case is remanded for proceedings consistent with this opinion.
20
It is so ordered.
21
Justice POWELL, with whom Justice BRENNAN, Justice MARSHALL and Justice BLACKMUN join, dissenting in part.
22
I concur in Part I of the Court's opinion, but simply would affirm the judgment of the Court of Appeals.
23
The Court of Appeals concluded that petitioner "failed to introduce substantial evidence of injury attributable to [respondent's program], much less substantial evidence of the amount of such injury." 607 F.2d 1133, 1135. In Part II of its opinion, the Court today reviews the evidence, vacates the judgment of the Court of Appeals, and remands the case for a resifting of the evidence and determination of whether respondent violated the Clayton Act as amended by the Robinson-Patman Act. The Court identifies no error of fact or law in the judgment of the Court of Appeals, but vacates that judgment only because the Court finds it "unclear" whether there is sufficient evidence. I find no basis for this Court undertaking to second-guess the Court of Appeals as to the sufficiency of evidence.
24
Even if there were some satisfactory reason for us to review the evidence in this relatively uncomplicated case, I think the Court of Appeals was plainly correct in finding petitioner's evidence insufficient to show a competitive injury of the kind that the antitrust laws were enacted to prevent. See Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 488-489, 97 S.Ct. 690, 697, 50 L.Ed.2d 701 (1977). Section 2(a) is a prophylactic statute that makes unlawful price discrimination that "may . . . lessen competition." Thus, a court cannot infer from the fact of a violation that defendant's behavior has caused plaintiff any injury. A plaintiff must show, to recover damages for violation of § 2(a) that unlawful discrimination in price allowed a favored competitor to draw sales or profits from him, the unfavored competitor. See Enterprise Industries, Inc. v. Texas Co., 240 F.2d 457, 458 (CA2), cert. denied, 353 U.S. 965, 77 S.Ct. 1049, 1 L.Ed.2d 914 (1957). Petitioner's evidence, which the Court concedes to be "weak," ante, at 565, amounts to nothing more than a showing that its market share declined temporarily 4% in 1972. Petitioner presented no substantial evidence that respondent's incentive program caused its market share to shrink. Indeed, over the 4-year period of the challenged programs its market share increased 1%. Rather, petitioner relied on its president's conclusory testimony, which consisted in major part of hearsay statements from petitioner's automobile salesmen. Hypothetical analysis of the "predicted effects" of respondent's program by an economics professor also was relied upon by petitioner to prove the actual cause of injury. One hardly would expect this Court to reject a Court of Appeals judgment that evidence as flimsy as this was insufficient to go to the jury.
25
My concern with the Court's opinion, however, goes beyond its reviewing the evidence. I have understood that in a Robinson-Patman Act case the plaintiff has the burden of proving the fact of antitrust injury by a preponderance of the evidence. See Perkins v. Standard Oil Co., 395 U.S. 642, 648, 89 S.Ct. 1871, 1874, 23 L.Ed.2d 599 (1969). Only when this fact has been proved may a court properly be lenient in the evidence it requires to prove the amount of damages. See Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 562, 51 S.Ct. 248, 250, 75 L.Ed. 544 (1931). It is not at all apparent that the Court adequately recognizes this distinction.
26
It seems to me that today's remand measurably increases the uncertainty inherent in the generalities of the Robinson-Patman Act. Accordingly, I dissent.
1
Section 2(a) of the Clayton Act, 38 Stat. 730, as amended by the Robinson-Patman Act, 49 Stat. 1526, 15 U.S.C. § 13(a), provides in pertinent part:
"It shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality, where either or any of the purchases involved in such discrimination are in commerce, where such commodities are sold for use, consumption, or resale within the United States . . . and where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy or prevent competition with any person who either grants or knowingly receives the benefits of such discrimination, or with customers of either of them. . . ." Section 4 of the Clayton Act, 38 Stat. 731, 15 U.S.C. § 15, provides:
"Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover three-fold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee."
2
The automatic-damages theory has split the lower courts. The leading case approving the theory is Fowler Manufacturing Co. v. Gorlick, 415 F.2d 1248 (CA9 1969), cert. denied, 396 U.S. 1012, 90 S.Ct. 571, 24 L.Ed.2d 503 (1970). See also Elizabeth Arden Sales Corp. v. Gus Blass Co., 150 F.2d 988 (CA8) (involving §§ 2(d) and 2(e) of the Act), cert. denied, 326 U.S. 773, 66 S.Ct. 231, 90 L.Ed. 467 (1945); Grace v. E. J. Kozin Co., 538 F.2d 170 (CA7 1976) (involving § 2(c) of the Act). The leading case rejecting the theory is Enterprise Industries, Inc. v. Texas Co., 240 F.2d 457 (CA2), cert. denied, 353 U.S. 965, 77 S.Ct. 1049, 1 L.Ed.2d 914 (1957). Accord, Edward J. Sweeney & Sons, Inc. v. Texaco, Inc., 637 F.2d 105 (CA3 1980); McCaskill v. Texaco, Inc., 351 F.Supp. 1332 (SD Ala.1972), affirmance order, 486 F.2d 1400 (CA5 1973); Kidd v. Esso Standard Oil Co., 295 F.2d 497 (CA6 1961).
3
Relying on Bruce's Juices, Inc. v. American Can Co., 330 U.S. 743, 757, 67 S.Ct. 1015, 1021, 91 L.Ed. 1219 (1947), petitioner argues that this Court has previously accepted the automatic-damages theory. In that case the Court stated that if petitioner can show an illegal price discrimination under the Act, "it would establish its right to recover three times the discriminatory difference without proving more than the illegality of the prices." Ibid. But that statement is merely dictum, since the only issue before the Court was whether a violation of § 2(a) could be used as an affirmative defense to void a contract.
4
Respondent suggests that petitioner's inability to show that his favored competitors lowered their retail sales price should defeat recovery. That argument assumes that evidence of a lower retail price is the sine qua non of antitrust injury, that the disfavored purchaser is simply not "injured" unless the favored purchaser has lowered his price. If the favored purchaser has lowered his retail price, for example, the disfavored purchaser will lose sales to the extent it does not match that lower price. Similarly, if the disfavored purchaser matches the lower price, it will lose profits. Because petitioner has not shown that the favored purchasers have lowered their retail price, petitioner is arguably foreclosed from showing that it lost either sales or profits. Justice Cardozo seemingly adopted this position in ICC v. United States, 289 U.S. 385, 390-391, 53 S.Ct. 607, 609, 77 L.Ed. 1273 (1933), a case involving rate discrimination under the Interstate Commerce Act:
"If by reason of the discrimination, the preferred producers have been able to divert business that would otherwise have gone to the disfavored shipper, damage has resulted to the extent of the diverted profits. If the effect of the discrimination has been to force the shipper to sell at a lowered price . . . damage has resulted to the extent of the reduction. But none of these consequences is a necessary inference from discrimination without more."
Petitioner argues that is an overly narrow view of antitrust injury. To the extent a disfavored purchaser must pay more for its goods than its competitors, it is less able to compete. It has fewer funds available with which to advertise, make capital expenditures, and the like. Although the inability of petitioner to show that the favored retailers lowered their retail price makes petitioner's argument particularly weak, we find it unnecessary to decide in this case whether such failure as a matter of law demonstrates no competitive injury.
5
Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 51 S.Ct. 248, 75 L.Ed. 544 (1931), is similarly distinguishable. In upholding a jury verdict against respondents for a violation of § 2 of the Sherman Act, the Court observed:
"It is true that there was uncertainty as to the extent of damage, but there was none as to the fact of damage; and there is a clear distinction between the measure of proof necessary to establish the fact that petitioner had sustained some damage, and the measure of proof necessary to enable the jury to fix the amount. The rule which precludes the recovery of uncertain damages applies to such as are not the certain result of the wrong, not to those damages which are definitely attributable to the wrong and only uncertain in respect of their amount. . . ." Id., at 562, 51 S.Ct., at 250.
"If the damage is certain, the fact that its extent is uncertain does not prevent a recovery." Id., at 566, 51 S.Ct., at 251. In this case, by contrast, the issue is not so much the amount of damages as whether petitioner has in fact been injured by an antitrust violation.
| 78
|
451 U.S. 704
101 S.Ct. 2102
68 L.Ed.2d 558
H. A. ARTISTS & ASSOCIATES, INC., et al., Petitioners,v.ACTORS' EQUITY ASSOCIATION et al.
No. 80-348.
Argued March 23, 1981.
Decided May 26, 1981.
Syllabus
Respondent union, which represents most of the stage actors and actresses in the United States, has entered into collective-bargaining agreements with virtually all major theatrical producers throughout the country, fixing minimum (scale) wages and other conditions of employment for those represented by the union. Because of abuses by theatrical agents who, as independent contractors, negotiated employment contracts for actors and actresses with producers, particularly abuses as to the extraction of high commissions tending to undermine collectively bargained rates of compensation, the union in 1928 unilaterally established a licensing system for the regulation of agents, prohibiting union members from using an agent who has not obtained a license from the union. The essential elements of the licensing system have remained unchanged. To obtain a license, an agent must agree to comply with union regulations which, inter alia, prohibit agent commissions on scale portions of wages received by an actor or an actress from a producer, limit commissions on wages in excess of scale pay, and require payment to the union of franchise fees. Petitioners, agents who refused to obtain union licenses, instituted this action, contending that the union's regulations violated §§ 1 and 2 of the Sherman Act. After trial, the District Court dismissed the complaint, finding that the union's agency franchise system was protected from liability by the antitrust exemptions of unions and their members arising under the Clayton Act and the Norris-LaGuardia Act. The Court of Appeals affirmed, determining that the central feature of the union's franchising system—the exaction of an agreement by agents as to their commissions—was immune from antitrust challenge. The court suggested that if the exactions of franchise fees exceeded the union's costs in administering its license system, they could not legally be collected; but despite the lack of any cost evidence at trial, the court concluded that the fees were sufficiently low that a remand on the point would not serve any useful purpose.
Held :
1. Labor unions acting in their self-interest and not in combination with nonlabor groups enjoy statutory exemption from Sherman Act liability, but the exemption does not apply when a union combines with a "nonlabor group," or persons who are not "parties to a labor dispute" within the meaning of the Norris-LaGuardia Act. United States v. Hutcheson, 312 U.S. 219, 61 S.Ct. 463, 85 L.Ed. 788. Here, the union's franchising of agents did not involve any combination between the union and any "nonlabor groups." The record amply supports the conclusion that there was no combination between the union and the theatrical producers, and the determination of whether the combination between the union and those agents who agreed to become franchised was a combination with a "nonlabor group" depends on whether there was "job or wage competition or some other economic interrelationship affecting legitimate union interests between the union members and the independent contractors." Musicians v. Carroll, 391 U.S. 99, 106, 88 S.Ct. 1562, 1567, 20 L.Ed.2d 460. Because of the peculiar structure of the legitimate theater industry, where it is customary if not essential for union members to secure employment through agents whose fees are calculated as a percentage of the member's wage—thus making it impossible for the union to defend even the integrity of the minimum wages it has negotiated with producers without regulation of agency fees—the union's regulations are within the labor exemption. Agents must, therefore, be considered a "labor group" and their controversy with the union is plainly a "labor dispute" as defined in the Norris-LaGuardia Act. The union's regulations are also clearly designed to promote its legitimate self-interest. Pp. 713-722.
2. However, the union's justification for the franchise fees based only on the suggestion in the most general terms that they are related to the basic purposes of its regulations—is inadequate to warrant the conclusion that the fees are a permissible component of the exempt regulatory system. Pp. 722.
622 F.2d 647, affirmed in part, reversed in part, and remanded.
Howard Breindel, New York City, for petitioners.
Jerome B. Lurie, New York City, for respondents.
Laurence Gold, Washington, D. C., for AFL-CIO as amicus curiae, by special leave of Court.
Justice STEWART delivered the opinion of the Court.
1
The respondent Actors' Equity Association (Equity) is a union representing the vast majority of stage actors and actresses in the United States. It enters into collective-bargaining agreements with theatrical producers that specify minimum wages and other terms and conditions of employment for those whom it represents. The petitioners are independent theatrical agents who place actors and actresses in jobs with producers. The Court of Appeals for the Second Circuit held that the respondents'1 system of regulation of theatrical agents is immune from antitrust liability by reason of the statutory labor exemption from the antitrust laws, 622 F.2d 647.2 We granted certiorari to consider the availability of that exemption in the circumstances presented by this case. 449 U.S. 991, 101 S.Ct. 526, 66 L.Ed.2d 288.
2
* A.
3
Equity is a national union that has represented stage actors and actresses since early in this century. Currently representing approximately 23,000 actors and actresses, it has collective-bargaining agreements with virtually all major theatrical producers in New York City, on and off Broadway, and with most other theatrical producers throughout the United States. The terms negotiated with producers are the minimum conditions of employment (called "scale"); an actor or actress is free to negotiate wages or terms more favorable than the collectively bargained minima.
4
Theatrical agents are independent contractors who negotiate contracts and solicit employment for their clients. The agents do not participate in the negotiation of collective-bargaining agreements between Equity and the theatrical producers. If an agent succeeds in obtaining employment for a client, he receives a commission based on a percentage of the client's earnings. Agents who operate in New York City must be licensed as employment agencies and are regulated by the New York City Department of Consumer Affairs pursuant to New York law, which provides that the maximum commission a theatrical agent may charge his client is 10% of the client's compensation.
5
In 1928, concerned with the high unemployment rates in the legitimate theater and the vulnerability of actors and actresses to abuses by theatrical agents,3 including the extraction of high commissions that tended to undermine collectively bargained rates of compensation, Equity unilaterally established a licensing system for the regulation of agents. The regulations permitted Equity members to deal only with those agents who obtained Equity licenses and thereby agreed to meet the conditions of representation prescribed by Equity. Those members who dealt with nonlicensed agents were subject to union discipline.
6
The system established by the Equity regulations was immediately challenged.4 In Edelstein v. Gillmore, 35 F.2d 723, the Court of Appeals for the Second Circuit concluded that the regulations were a lawful effort to improve the employment conditions of Equity members. In an opinion written by Judge Swan and joined by Judge Augustus N. Hand,5 the court said:
7
"The evils of unregulated employment agencies (using this term broadly to include also the personal representative) are set forth in the defendants' affidavits and are corroborated by common knowledge. . . . Hence the requirement that, as a condition to writing new business with Equity's members, old contracts with its members must be made to conform to the new standards, does not seem to us to justify an inference that the primary purpose of the requirement is infliction of injury upon plaintiff, and other personal representatives in a similar situation, rather than the protection of the supposed interests of Equity's members. The terms they insist upon are calculated to secure from personal representatives better and more impartial service, at uniform and cheaper rates, and to improve conditions of employment of actors by theater managers. Undoubtedly the defendants intend to compel the plaintiff to give up rights under existing contracts which do not conform to the new standards set up by Equity, but, as already indicated, their motive in so doing is to benefit themselves and their fellow actors in the economic struggle. The financial loss to plaintiff is incidental to this purpose." Id., at 726 (emphasis added).6
8
The essential elements of Equity's regulation of theatrical agents have remained unchanged since 1928.7 A member of Equity is prohibited, on pain of union discipline, from using an agent who has not, through the mechanism of obtaining an Equity license (called a "franchise"), agreed to comply with the regulations. The most important of the regulations requires that a licensed agent must renounce any right to take a commission on an employment contract under which an actor or actress receives scale wages.8 To the extent a contract includes provisions under which an actor or actress will sometimes receive scale pay—for rehearsals or "chorus" employment, for example—and sometimes more, the regulations deny the agent any commission on the scale portions of the contract. Licensed agents are also precluded from taking commissions on out-of-town expense money paid to their clients. Moreover, commissions are limited on wages within 10% of scale pay,9 and an agent must allow his client to terminate a representation contract if the agent is not successful in procuring employment within a specified period.10 Finally, agents are required to pay franchise fees to Equity. The fee is $200 for the initial franchise, $60 a year thereafter for each agent, and $40 for any sub-agent working in the office of another. These fees are deposited by Equity in its general treasury and are not segregated from other union funds.
9
In 1977, after a dispute between Equity and Theatrical Artists Representatives Associates (TARA)—a trade association representing theatrical agents, see n. 7, supra —a group of agents, including the petitioners, resigned from TARA because of TARA's decision to abide by Equity's regulations. These agents also informed Equity that they would not accept Equity's regulations, or apply for franchises. The petitioners instituted this lawsuit in May 1978, contending that Equity's regulations of theatrical agents violated §§ 1 and 2 of the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. §§ 1 and 2.
B
10
The District Court found, after a bench trial, that Equity's creation and maintenance of the agency franchise system were fully protected by the statutory labor exemptions from the antitrust laws, and accordingly dismissed the petitioners' complaint. 478 F.Supp. 496 (SDNY). Among its factual conclusions, the trial court found that in the theatrical industry, agents play a critical role in securing employment for actors and actresses:
11
"As a matter of general industry practice, producers seek actors and actresses for their productions through agents. Testimony in this case convincingly established that an actor without an agent does not have the same access to producers or the same opportunity to be seriously considered for a part as does an actor who has an agent. Even principal interviews, in which producers are required to interview all actors who want to be considered for principal roles, do not eliminate the need for an agent, who may have a greater chance of gaining an audition for his client.
12
* * * * *
13
"Testimony confirmed that agents play an integral role in the industry; without an agent, an actor would have significantly lesser chances of gaining employment." Id., at 497, 502.
14
The court also found "no evidence to suggest the existence of any conspiracy or illegal combination between Actors' Equity and TARA or between Actors' Equity and producers," and concluded that "[t]he Actors Equity franchising system was employed by Actors' Equity for the purpose of protecting the wages and working conditions of its members." Id., at 499.
15
The Court of Appeals unanimously affirmed the judgment of the District Court. It determined that the threshold issue was, under United States v. Hutcheson, 312 U.S. 219, 232, 61 S.Ct. 463, 466, 85 L.Ed. 788, whether Equity's franchising system involved any combination between Equity and any "non-labor groups" or persons who are not "parties to a labor dispute." 622 F.2d, at 648-649. If it did, the court reasoned, the protection of the statutory labor exemption would not apply.
16
First, the Court of Appeals held that the District Court had not been clearly erroneous in finding no agreement, explicit or tacit, between Equity and the producers to establish or police the franchising system. Ibid. Next, the court turned to the relationship between the union and those agents who had agreed to become franchised, in order to determine whether those agreements would divest Equity's system of agency regulation of the statutory exemption. Relying on Musicians v. Carroll, 391 U.S. 99, 88 S.Ct. 1562, 20 L.Ed.2d 460, the court concluded that the agents were themselves a "labor group," because of their substantial "economic inter-relationship" with Equity, under which "the union [could] not eliminate wage competition among its members without regulation of the fees of the agents." 622 F.2d, at 650, 651. Accordingly, since the elimination of wage competition is plainly within the area of a union's legitimate self-interest, the court concluded that the exemption was applicable.11
17
After deciding that the central feature of Equity's franchising system—the union's exaction of an agreement by agents not to charge commissions on certain types of work—was immune from antitrust challenge, the Court of Appeals turned to the petitioners' challenge of the franchise fees exacted from agents. Equity had argued that the fees were necessary to meet its expenses in administering the franchise system, but no evidence was presented at trial to show that the costs justified the fees actually levied. The Court of Appeals suggested that if the exactions exceeded the true costs, they could not legally be collected, as such exactions would be unconnected with any of the goals of national labor policy that justify the labor antitrust exemption. Despite the lack of any cost evidence at trial, however, the appellate court reasoned that the fees were sufficiently low that a remand to the District Court on this point "would not serve any useful purpose." Id., at 651.
II
A.
18
Labor unions are lawful combinations that serve the collective interests of workers, but they also possess the power to control the character of competition in an industry. Accordingly, there is an inherent tension between national antitrust policy, which seeks to maximize competition, and national labor policy, which encourages cooperation among workers to improve the conditions of employment.12 In the years immediately following passage of the Sherman Act, courts enjoined strikes as unlawful restraints of trade when a union's conduct or objectives were deemed "socially or economically harmful." Duplex Printing Press Co. v. Deering, 254 U.S. 443, 485, 41 S.Ct. 172, 183, 65 L.Ed. 349 (Brandeis, J., dissenting).13 In response to these practices, Congress acted, first in the Clayton Act, 38 Stat. 731, and later in the Norris-LaGuardia Act, 47 Stat. 70, to immunize labor unions and labor disputes from challenge under the Sherman Act.
19
Section 6 of the Clayton Act, 15 U.S.C. § 17, declares that human labor "is not a commodity or article of commerce," and immunizes from antitrust liability labor organizations and their members "lawfully carrying out" their "legitimate object[ives]." Section 20 of the Act prohibits injunctions against specified employee activities, such as strikes and boycotts, that are undertaken in the employees' self-interest and that occur in the course of disputes "concerning terms or conditions of employment," and states that none of the specified acts can be "held to be [a] violatio[n] of any law of the United States." 29 U.S.C. § 52. This protection is re-emphasized and expanded in the Norris-LaGuardia Act, which prohibits federal-court injunctions against single or organized employees engaged in enumerated activities,14 and specifically forbids such injunctions notwithstanding the claim of an unlawful combination or conspiracy. While the Norris-LaGuardia Act's bar of federal-court labor injunctions is not explicitly phrased as an exemption from the antitrust laws, it has been interpreted broadly as a statement of congressional policy that the courts must not use the antitrust laws as a vehicle to interfere in labor disputes.15
20
In United States v. Hutcheson, 312 U.S. 219, 61 S.Ct. 463, 85 L.Ed. 788, the Court held that labor unions acting in their self-interest and not in combination with nonlabor groups enjoy a statutory exemption from Sherman Act liability. After describing the congressional responses to judicial interference in union activity, id., at 229-230, 61 S.Ct., at 464-465, the Court declared that
21
"[s]o long as a union acts in its self-interest and does not combine with non-labor groups, the licit and the illicit under § 20 [of the Clayton Act] are not to be distinguished by any judgment regarding the wisdom or unwisdom, the rightness or wrongness, the selfishness or unselfishness of the end of which the particular union activities are the means." Id., at 232, 61 S.Ct., at 466 (footnote omitted).
22
The Court explained that this exemption derives not only from the Clayton Act, but also from the Norris-LaGuardia Act, particularly its definition of a "labor dispute," see n. 14, supra, in which Congress "reasserted the original purpose of the Clayton Act by infusing into it the immunized trade union activities as redefined by the later Act." 312 U.S., at 236, 61 S.Ct., at 468. Thus under Hutcheson, no federal injunction may issue over a "labor dispute," and "§ 20 [of the Clayton Act] removes all such allowable conduct from the taint of being a 'violation of any law of the United States,' including the Sherman [Act]." Ibid.16
23
The statutory exemption does not apply when a union combines with a "non-labor group." Hutcheson, supra, at 232, 61 S.Ct., at 466. Accordingly, antitrust immunity is forfeited when a union combines with one or more employers in an effort to restrain trade. In Allen Bradley Co. v. Electrical Workers, 325 U.S. 797, 65 S.Ct. 1533, 89 L.Ed. 1939, for example, the Court held that a union had violated the Sherman Act when it combined with manufacturers and contractors to erect a sheltered local business market in order "to bar all other business men from [the market], and to charge the public prices above a competitive level." Id., at 809, 65 S.Ct., at 1539.17 The Court indicated that the union efforts would, standing alone, be exempt from antitrust liability, ibid., but because the union had not acted unilaterally, the exemption was denied.18 Congress "intended to outlaw business monopolies. A business monopoly is no less such because a union participates, and such participation is a violation of the Act." Id., at 811, 65 S.Ct., at 1540.19
B
24
The Court of Appeals properly recognized that the threshold issue was to determine whether or not Equity's franchising of agents involved any combination between Equity and any "non-labor groups," or persons who are not "parties to a labor dispute." 622 F.2d, at 649 (quoting Hutcheson, 312 U.S., at 232, 61 S.Ct., at 466).20 And the court's conclusion that the trial court had not been clearly erroneous in its finding that there was no combination between Equity and the theatrical producers21 to create or maintain the franchise system is amply supported by the record.
25
The more difficult problem is whether the combination between Equity and the agents who agreed to become franchised was a combination with a "nonlabor group." The answer to this question is best understood in light of Musicians v. Carroll, 391 U.S. 99, 88 S.Ct. 1562, 20 L.Ed.2d 460. There, four orchestra leaders, members of the American Federation of Musicians, brought an action based on the Sherman Act challenging the union's unilateral system of regulating "club dates," or one-time musical engagements. These regulations, inter alia, enforced a closed shop; required orchestra leaders to engage a minimum number of "sidemen," or instrumentalists; prescribed minimum prices for local engagements;22 prescribed higher minimum prices for traveling orchestras; and permitted leaders to deal only with booking agents licensed by the union.
26
Without disturbing the finding of the Court of Appeals that the orchestra leaders were employers and independent contractors, the Court concluded that they were nonetheless a "labor group" and parties to a "labor dispute" within the meaning of the Norris-LaGuardia Act, and thus that their involvement in the union regulatory scheme was not an unlawful combination between "labor" and "nonlabor" groups. The Court agreed with the trial court that the applicable test was whether there was "job or wage competition or some other economic interrelationship affecting legitimate union interests between the union members and the independent contractors." Id., at 106, 88 S.Ct., at 1567.
27
The Court also upheld the restrictions on booking agents, who were not involved in job or wage competition with union members. Accordingly, these restrictions had to meet the "other economic interrelationship" branch of the disjunctive test quoted above. And the test was met because those restrictions were " 'at least as intimately bound up with the subject of wages' . . . as the price floors." Id., at 113, 88 S.Ct., at 1570 (quoting Teamsters v. Oliver, 362 U.S. 605, 606, 80 S.Ct. 923, 926, 4 L.Ed.2d 1740). The Court noted that the booking agent restrictions had been adopted, in part, because agents had "charged exorbitant fees, and booked engagements for musicians at wages . . . below union scale."23
C
28
The restrictions challenged by the petitioners in this case are very similar to the agent restrictions upheld in the Carroll case.24 The essential features of the regulatory scheme are identical: members are permitted to deal only with agents who have agreed (1) to honor their fiduciary obligations by avoiding conflicts of interest, (2) not to charge excessive commissions, and (3) not to book members for jobs paying less than the union minimum.25 And as in Carroll, Equity's regulation of agents developed in response to abuses by employment agents who occupy a critical role in the relevant labor market.26 The agent stands directly between union members and jobs, and is in a powerful position to evade the union's negotiated wage structure.
29
The peculiar structure of the legitimate theater industry, where work is intermittent, where it is customary if not essential for union members to secure employment through agents, and where agents' fees are calculated as a percentage of a member's wage, makes it impossible for the union to defend even the integrity of the minimum wages it has negotiated without regulation of agency fees.27 The regulations are "brought within the labor exemption [because they are] necessary to assure that scale wages will be paid. . . ." Carroll, 391 U.S., at 112, 88 S.Ct., at 1570. They "embody . . . a direct frontal attack upon a problem thought to threaten the maintenance of the basic wage structure." Teamsters v. Oliver, 358 U.S. 283, 294, 79 S.Ct. 297, 303, 3 L.Ed.2d 312. Agents must, therefore, be considered a "labor group," and their controversy with Equity is plainly a "labor dispute" as defined in the Norris-LaGuardia Act: "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." 29 U.S.C. § 113(c).
30
Agents perform a function—the representation of union members in the sale of their labor—that in most nonentertainment industries is performed exclusively by unions. In effect, Equity's franchise system operates as a substitute for maintaining a hiring hall as the representative of its members seeking employment.28
31
Finally, Equity's regulations are clearly designed to promote the union's legitimate self-interest. Hutcheson, 312 U.S., at 232, 61 S.Ct., at 466. In a case such as this, where there is no direct wage or job competition between the union and the group it regulates, the Carroll formulation to determine the presence of a nonlabor group—whether there is " 'some . . . economic interrelationship affecting legitimate union interests . . .,' " 391 U.S., at 106, 88 S.Ct., at 1567 (quoting District Court opinion)—necessarily resolves this issue.
D
32
The question remains whether the fees that Equity levies upon the agents who apply for franchises are a permissible component of the exempt regulatory system. We have concluded that Equity's justification for these fees is inadequate. Conceding that Carroll did not sanction union extraction of franchise fees from agents,29 Equity suggests, only in the most general terms, that the fees are somehow related to the basic purposes of its regulations: elimination of wage competition, upholding of the union wage scale, and promotion of fair access to jobs. But even assuming that the fees no more than cover the costs of administering the regulatory system, this is simply another way of saying that without the fees, the union's regulatory efforts would not be subsidized—and that the dues of Equity's members would perhaps have to be increased to offset the loss of a general revenue source.30 If Equity did not impose these franchise fees upon the agents, there is no reason to believe that any of its legitimate interests would be affected.31
III
33
For the reasons stated, the judgment of the Court of Appeals is affirmed in part and reversed in part, and the case is remanded for proceedings consistent with this opinion.
34
It is so ordered.
35
Justice BRENNAN, with whom THE CHIEF JUSTICE and Justice MARSHALL join, concurring in part and dissenting in part.
36
I join all but Part II-D of the Court's opinion. That part holds that respondents' exaction of a franchise fee is not a "permissible component of the exempt regulatory system." Ante, at 722. Rather, I agree with the Court of Appeals that the approximately $12,000 collected annually in fees is not "incommensurate with Equity's expenses in maintaining a full-time employee to administer the system," 622 F.2d 647, 651 (CA2 1980), and thus is not "unconnected with any of the goals of national labor policy which justify the antitrust exemption for labor," ibid.
37
The Court justifies its conclusion by suggesting that, since the union could increase its dues to offset the revenue lost from invalidation of the fee system, "there is no reason to believe that any of [the union's] legitimate interests would be affected," if the fee system were found to violate the antitrust laws. Ante, at 722. The union could of course raise its dues, but the issue here is whether the conceded antitrust immunity of the franchising system includes the franchise fee.
38
I find somewhat incongruous the Court's conclusion that an incident of the overall system constitutes impermissible regulation, but that agents in general may be significantly regulated because they are not a "nonlabor group." This incongruity is highlighted by the similarity between union hiring halls and the franchising system, a similarity which the Court itself acknowledges: "Equity's franchise system operates as a substitute for maintaining a hiring hall as the representative of its members seeking employment." Ante, at 721. The Court disregards this similarity in concluding that the franchising system does not "directly benefit" the agents who are required to pay the fees. Ante, at 722, n. 31. It reaches this conclusion by incorrectly assuming that the only parties who directly benefit from the hiring hall and the franchising system are employers and employees and producers and actors, as the case may be. But surely the agents also benefit from the franchising system, which provides an orderly and protective mechanism for pairing actors who seek jobs with producers who seek actors. The system is thus the means by which the agents ultimately receive their commissions; it is as much the source of their livelihood as it is that of the actors.
39
Because the fee is an incident of a legitimate scheme of regulation and because it is commensurate in amount with the purpose for which it is sought, I would also affirm this holding of the Court of Appeals.
1
The respondent Donald Grody is the executive secretary of Equity.
2
The basic sources of organized labor's exemption from federal antitrust laws are §§ 6 and 20 of the Clayton Act, 38 Stat. 731 and 738, 15 U.S.C. § 17 and 29 U.S.C. § 52, and §§ 4, 5, and 13 of the Norris-LaGuardia Act, 47 Stat. 70, 71, and 73, 29 U.S.C. §§ 104, 105, and 113.
3
Such vulnerability was, and still remains, particularly acute for actors and actresses without established professional reputations, who have always constituted the overwhelming majority of Equity's members.
4
The challenge was grounded on allegations of common-law tortious interference with business relationships.
5
Judge Manton dissented without opinion.
6
For contemporary descriptions of agent abuses of actors and actresses, see generally A. Harding, The Revolt of the Actors (1929). See also New Rules for Actors, N.Y. Times, Sept. 24, 1928, p. 20, col. 3; The New Republic, Oct. 24, 1928, p. 263. Cf. Ribnik v. McBride, 277 U.S. 350, 359-375, 48 S.Ct. 545, 547-552, 72 L.Ed. 913 (Stone, J., joined by Holmes and Brandeis, JJ., dissenting) (general abuses by employment agencies, particularly at times of widespread unemployment). The Court's decision in Ribnik v. McBride was overruled unanimously in Olsen v. Nebraska, 313 U.S. 236, 61 S.Ct. 862, 85 L.Ed. 1305.
7
The petitioners do not dispute this. The regulations have undergone revision in some details, largely as a result of negotiations between Equity and Theatrical Artists Representatives Associates (TARA), which until shortly before this litigation began was the only association voicing the concerns of agents with regard to their representation of Equity members. Until their voluntary resignation in late 1977, most of the petitioners were members of TARA. The petitioners are now members of the National Association of Talent Representatives (NATR). Unlike TARA, which functions only in the legitimate theater field, NATR also functions in the fields of motion pictures and television. In those fields, agents operate under closely analogous agent regulations maintained by the Screen Actors' Guild and the American Federation of Television and Radio Artists.
The history of the negotiations and disputes between Equity and TARA are described in the opinion of the District Court in the present case. 478 F.Supp. 496, 498 (SDNY).
8
The minimum, or "scale" wage varies. In August 1977, for example, the minimum weekly salary was $335 for Broadway performances, and $175 for performances off Broadway. Scale wages are set by a collective-bargaining agreement between Equity and the producers, to which the agents are not parties. When an agent represents an actor or actress whose professional reputation is not sufficient to demand a salary higher than scale, the agent hopes to develop a relationship that will become continually more remunerative as the performer's professional reputation grows, and with it the power to demand an ever higher salary. No agent is required to represent an actor or actress whom he does not wish to represent.
9
It is Equity's view that commissions in the industry are not necessarily related to efforts by the agents, and that an agent often functions as little more than an "order taker," who is able to collect a percentage of a client's wages for the duration of a show for doing little more than answering a producer's telephone call. Indeed, an agent may collect a commission on the salary of an actor or actress he represents even if the client obtains the job without the agent.
10
Equity argues that this restriction is necessary because there is an incentive for agents to represent as many actors and actresses as possible—and not necessarily to serve them all well because an agent receives a commission whenever his client is employed at a salary higher than scale, regardless of the extent of his involvement in obtaining employment for the client.
11
The Court of Appeals recognized that even if there had been an agreement between Equity and a "non-labor group," the agreement might still have been protected from the antitrust laws under the "non-statutory" exemption. 622 F.2d, at 649, n. 1. See Connell Construction Co. v. Plumbers & Steamfitters, 421 U.S. 616, 622, 95 S.Ct. 1830, 1835, 44 L.Ed.2d 418. See n. 19, infra.
12
See generally Meltzer, Labor Unions, Collective Bargaining, and the Antitrust Laws, 32 U.Chi.L.Rev. 659 (1965); Winter, Collective Bargaining and Competition: The Application of Antitrust Standards to Union Activities, 73 Yale L.J. 14 (1963). See also Leslie, Principles of Labor Antitrust, 66 Va.L.Rev. 1183 (1980).
13
See Winter, supra, n. 12, at 30-38.
14
As is true under the Clayton Act, the specified activities are protected only in the context of a labor dispute. The Norris-LaGuardia Act defines a labor dispute to include "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." 29 U.S.C. § 113(c).
15
In Milk Wagon Drivers v. Lake Valley Farm Products, Inc., 311 U.S. 91, 103, 61 S.Ct. 122, 128, 85 L.Ed. 63, the Court stated: "For us to hold, in the face of [the Norris-LaGuardia Act], that the federal courts have jurisdiction to grant injunctions in cases growing out of labor disputes, merely because alleged violations of the Sherman Act are involved, would run counter to the plain mandate of the Act and would reverse the declared purpose of Congress."
16
See also Apex Hosiery Co. v. Leader, 310 U.S. 469, 60 S.Ct. 982, 84 L.Ed. 1311. There, in the Term preceding that in which the Hutcheson case was decided, the Court reasoned that the Sherman Act prohibits only restraints on "commercial competition," 310 U.S., at 497, 499, 510-511, 60 S.Ct., at 994, 995, 1001—or those market restraints designed to monopolize supply, control prices, or allocate product distribution—and that unions are not liable where they merely further their own goals in the labor market.
17
In Hunt v. Crumboch, 325 U.S. 821, 65 S.Ct. 1545, 89 L.Ed. 1954, decided the same day as Allen Bradley, the Court ruled that the labor exemption protected a union's boycott of a truck hauler through successful secondary pressure on purchasers of the hauler's services with whom the union had contracts, because of the absence of union participation in a conspiracy with the hauler's competitors. See 325 U.S., at 824, 65 S.Ct., at 1546; Meltzer, supra n. 12, at 677, and n. 74.
18
Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626, also dealt with a union combination with employers but the grounds of decision were unrelated to the antitrust exemption.
19
Even where there are union agreements with nonlabor groups that may have the effect of sheltering the nonlabor groups from competition in product markets, the Court has recognized a "nonstatutory" exemption to shield such agreements if they are intimately related to the union's vital concerns of wages, hours, and working conditions. See, e. g., Meat Cutters v. Jewel Tea Co., 381 U.S. 676, 85 S.Ct. 1596, 14 L.Ed.2d 640. This nonstatutory exemption was described as follows in Connell Construction Co. v. Plumbers & Steamfitters, 421 U.S., at 622, 95 S.Ct., at 1835:
"The Court has recognized . . . that a proper accommodation between the congressional policy favoring collective bargaining under the NLRA and the congressional policy favoring free competition in business markets requires that some union-employer agreements be accorded a limited nonstatutory exemption from antitrust sanctions. . . .
"The nonstatutory exemption has its source in the strong labor policy favoring the association of employees to eliminate competition over wages and working conditions. Union success in organizing workers and standardizing wages ultimately will affect price competition among employers, but the goals of federal labor law never could be achieved if this effect on business competition were held a violation of the antitrust laws. The Court therefore has acknowledged that labor policy requires tolerance for the lessening of business competition based on differences in wages and working conditions."
Neither the District Court nor the Court of Appeals in this case decided whether the nonstatutory exemption would independently shield the respondents from the petitioners' antitrust claims. See n. 11, supra.
20
Of course, a party seeking refuge in the statutory exemption must be a bona fide labor organization, and not an independent contractor or entrepreneur. See Meat Drivers v. United States, 371 U.S. 94, 83 S.Ct. 162, 9 L.Ed.2d 150; Columbia River Packers Assn. v. Hinton, 315 U.S. 143, 62 S.Ct. 520, 86 L.Ed. 750. See generally 1 P. Areeda & D. Turner, Antitrust Law § 229c, pp. 195-198 (1978). There is no dispute about Equity's status as a bona fide labor organization.
21
As the employers of Equity's members, producers are plainly a "non-labor group." Employers almost always will be a "nonlabor group," although an exception has been recognized, for example, when the employer himself is in job competition with his employees. See Musicians v. Carroll, 391 U.S. 99, 88 S.Ct. 1562, 20 L.Ed.2d 460 (orchestra leaders who both lead an orchestra and play an instrument).
22
These consisted of a minimum scale for sidemen, a "leader's fee," which was twice the sidemen's scale in orchestras of at least four, and an additional 8% for social security, unemployment insurance, and other expenses. In addition, if a leader did not appear but designated a subleader, and four or more musicians performed, the leader was required to pay from his leader's fee 1.5 times the sidemen's scale to the subleader.
23
The Court did not explicitly determine whether the second prong of the Hutcheson test for the statutory exemption had been met, i. e., whether the union had acted in its "self-interest." But given its various findings that the challenged restrictions were designed to cope with job competition and to protect wage scales and working conditions, 391 U.S., at 108, 109, 110, 113, 88 S.Ct., at 1568, 1569, 1570, it clearly did so sub silentio.
24
Several cases before Carroll also upheld union regulation of the practices of independent entrepreneurs affecting the wages or working conditions of union members. See Milk Wagon Drivers v. Lake Valley Farm Products, Inc., 311 U.S. 91, 61 S.Ct. 122, 85 L.Ed. 63; Teamsters v. Oliver, 358 U.S. 283, 79 S.Ct. 297, 3 L.Ed.2d 312 (Oliver I ); Teamsters v. Oliver, 362 U.S. 605, 80 S.Ct. 923, 4 L.Ed.2d 1740 (Oliver II ). In Milk Wagon Drivers, the Court held that the union had engaged in a "labor dispute" within the meaning of the Norris-LaGuardia Act when it attempted to organize independent "vendors" who supplied milk to retail stores. There the union feared that the "vendor system" was designed to escape the payment of union wages and the assumption of union-imposed working conditions. In Oliver I, the Milk Wagon Drivers decision was invoked to protect from state antitrust challenge a union's successful efforts to prescribe through collective-bargaining agreements a wage scale for truckdrivers, and minimum rental fees for drivers who owned their own trucks. The union feared that driver-owners, whose fees included not only an entrepreneurial component but also a "wage" for the labor of driving, might undercut the union scale by charging a fee that effectively included a subscale wage component. The Court stated that "[t]he regulations embod[ied] . . . a direct frontal attack upon a problem thought to threaten the maintenance of the basic wage structure established by the collective bargaining contract." 358 U.S., at 294, 79 S.Ct., at 303. See also Oliver II, supra, at 606, 80 S.Ct., at 924 (after remand to the state court).
25
Indeed, the District Court in Carroll, whose judgment was affirmed by this Court "in its entirety," 391 U.S., at 114, 88 S.Ct., at 1571, drew parallels with the restrictions at issue in the present case. The court noted that "[a]pparently, similar abuses by booking agents existed in other fields too. Edelstein v. Gillmore, 35 F.2d 723, 726 (2d Cir. 1929) (actors)." Carroll v. AFM, 241 F.Supp. 865, 892 (SDNY).
The petitioners argue that theatrical agents are indistinguishable from "numerous [other] groups of persons who merely supply products and services to union members" such as landlords, grocers, accountants and lawyers. But it is clear that agents differ from these groups in two critical respects: the agents control access to jobs and negotiation of the terms of employment. For the actor or actress, therefore, agent commissions are not merely a discretionary expenditure of disposable income, but a virtually inevitable concomitant of obtaining employment.
26
See Carroll v. AFM, 241 F.Supp., at 881-882; Harding, supra n. 6, at 319-325.
27
The Court of Appeals found that "the union cannot eliminate wage competition among its members without regulation of the fees of the agents." 622 F.2d, at 651 (emphasis added). Wage competition is prevented not only by the rule precluding commissions on scale jobs. Actors and actresses could also compete over the percentage of their wages they were willing to cede to an agent, subject only to the restrictions imposed by state law.
28
In many industries, unions maintain hiring halls and other job referral systems, particularly where work is typically temporary and performed on separate project sites rather than fixed locations. By maintaining halls, unions attempt to eliminate abuses such as kickbacks, and to insure fairness and regularity in the system of access to employment. In a 1947 Senate Report, Senator Taft explained: "The employer should be able to make a contract with the union as an employment agency. The Union frequently is the best employment agency. The employer should be able to give notice of vacancies, and in the normal course of events to accept men sent to him by the hiring hall." S.Rep. No. 1827, 81st Cong., 2d Sess., 13 (1947), quoted in Teamsters v. NLRB, 365 U.S. 667, 673-674, 81 S.Ct. 835, 838-839, 6 L.Ed.2d 11.
The National Labor Relations Board and the courts have ruled that union demands for hiring halls are a mandatory subject of collective bargaining, and that strikes to obtain such provisions are protected activity. See, e. g., Houston Chapter, Associated General Contractors, 143 N.L.R.B. 409, enf'd, 349 F.2d 449 (CA5); NLRB v. Tom Joyce Floors, Inc., 353 F.2d 768, 771 (CA9). Cf. Teamsters v. NLRB, supra, at 672-673, 676, 81 S.Ct., at 837-838, 840.
29
See Carroll, 241 F.Supp., at 881. We have, in fact, found no case holding that a union may extract such fees from independent agents who represent union members.
30
As already indicated, the franchise fees are not segregated in any manner but merely deposited in the union's general fund.
31
The respondents offer union hiring hall fees as an analogy in support of Equity's collection of franchise fees. In that context, the respondents argue, without citation, that a union may impose reasonable fees upon employers to meet the costs of maintaining a union-run hiring hall. But even if the respondents' statement of labor law is correct, the analogy would not be persuasive. Assuming that hiring hall fees are so imposed, the fees are borne by parties who directly benefit from the employment services of the hiring halls and are collected by the entities that provide them. That is not true in the present case.
The view expressed in the separate opinion filed today as to who are the beneficiaries of the franchising system will undoubtedly surprise the agents who brought this lawsuit. Post, at 724.
| 67
|
451 U.S. 679
101 S.Ct. 2088
68 L.Ed.2d 538
Clifford E. CLAYTON, Petitioner,v.INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, et al. ITT GILFILLAN, etc., Petitioner, v. Clifford E. CLAYTON.
Nos. 80-5049, 80-54.
Argued March 4, 1981.
Decided May 26, 1981.
Syllabus
After being discharged for violation of his employer's plant rule prohibiting defined misbehavior, an employee, pursuant to the grievance and arbitration procedure mandated by the collective-bargaining agreement between the employer and respondent union, asked his union representative to file a grievance on his behalf on the ground that his dismissal was not for just cause. The union pursued the grievance through the third step of the grievance procedure and requested arbitration, but it then withdrew the request. The union constitution required union members aggrieved by any action of the union to exhaust the internal union appeals procedures before seeking redress from a court. The employee, however, instead of filing an appeal from the union's decision not to seek arbitration of his grievance, filed an action in Federal District Court under § 301(a) of the Labor Management Relations Act, alleging that the union had breached its duty of fair representation and that the employer had breached the collective-bargaining agreement by discharging him without just cause. He sought reinstatement from the employer and monetary relief from both the employer and the union. The District Court sustained the union and the employer's affirmative defense that the employee had failed to exhaust the internal union appeals procedures, and accordingly dismissed the suit against both the union and the employer. The Court of Appeals affirmed the dismissal of the suit against the union but reversed the dismissal against the employer. The court held that the employee's failure to exhaust was fatal to his claim against the union because by filing an internal appeal he might have received money damages, the relief he sought in his § 301 suit against the union. But the court held that the employee's failure to exhaust did not bar his suit against the employer because the internal appeals procedures could not result in either reinstatement of his job, the relief sought from the employer under § 301(a), or reactivation of his grievance.
Held : Where the internal union appeals procedures could not reactivate the employee's grievance or grant him the complete relief he sought under § 301(a), he should not have been required to exhaust such procedures prior to bringing suit against the union and the employer under § 301(a). Pp. 685-696.
(a) Because internal union appeals procedures, in contrast to contractual grievance and arbitration procedures negotiated by the parties to a collective-bargaining agreement, are created by the union constitution and are designed to settle disputes between an employee and his union arising under the constitution, the policies encouraging private resolution of grievances arising out of the collective-bargaining process are not directly applicable to the issue whether to require exhaustion of internal union procedures. Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580, distinguished. Such policies are furthered by an exhaustion requirement only where the internal procedures can either grant the aggrieved employee full relief or reactivate his grievance. Pp. 685-689.
(b) If the internal procedures are inadequate to effect the relief sought by the employee, his failure to exhaust should be excused and he should be permitted to pursue his claim for breach of the duty of fair representation and breach of the collective-bargaining agreement in court under § 301. Here, although it appears that some monetary relief could be obtained through the internal procedures, it also appears that the union could neither reinstate the employee in his job nor reactivate his grievance because of certain time restrictions in the collective-bargaining agreement for obtaining arbitration of a grievance. These restrictions on the relief available through the internal procedures rendered such procedures inadequate. The policy underlying § 301 to effect a relatively rapid disposition of labor disputes would be undermined by an exhaustion requirement unless the internal procedures are capable of either reactivating the employee's grievance or of redressing it. Pp. 689-693.
(c) Although the argument that exhaustion of internal procedures should be required might have force if the employee's § 301 suit is only against the union and the internal procedures are adequate to grant the relief sought against the union, the defense should not be available where, as here, the employee sued both the union and the employer. If a trial court required exhaustion of the internal procedures with respect to the suit against the union but not against the employer, it would be faced with the undesirable alternatives of either staying the suit against the employer pending such exhaustion, thus violating national labor policy, or of permitting the suit against the employer to proceed and tolling the statute of limitations against the union pending exhaustion, with the possible result that the court would find itself with two separate § 301 suits based on the same facts proceeding at different paces in its courtroom. Pp. 694-695.
623 F.2d 563, affirmed in part, reversed in part, and remanded.
John T. McTernan, Wilmington, Cal., for Clifford E. Clayton.
Everett F. Meiners, Los Angeles, Cal., for ITT Gilfillan, etc.
M. Jay Whitman, Detroit, Mich., for the UAW and its local.
Justice BRENNAN delivered the opinion of the Court.
1
An employee seeking a remedy for an alleged breach of the collective-bargaining agreement between his union and employer must attempt to exhaust any exclusive grievance and arbitration procedures established by that agreement before he may maintain a suit against his union or employer under § 301(a) of the Labor Management Relations Act, 1947, 61 Stat. 156, 29 U.S.C. § 185(a). Republic Steel Corp. v. Maddox, 379 U.S. 650, 652-653, 85 S.Ct. 614, 616, 13 L.Ed.2d 580 (1965); see Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 563, 96 S.Ct. 1048, 1055, 47 L.Ed.2d 231 (1976); Vaca v. Sipes, 386 U.S. 171, 184, 87 S.Ct. 903, 913, 17 L.Ed.2d 842 (1967). The question presented by these cases is whether, and in what circumstances, an employee alleging that his union breached its duty of fair representation in processing his grievance, and that his employer breached the collective-bargaining agreement, must also attempt to exhaust the internal union appeals procedures established by his union's constitution before he may maintain his suit under § 301.
2
* After eight years in the employ of ITT Gilfillan, Clifford E. Clayton, a member of the United Automobile, Aerospace, and Agricultural Implement Workers of America (UAW) and a shop steward of its Local 509, was dismissed for violating a plant rule prohibiting defined misbehavior. Pursuant to the mandatory grievance and arbitration procedure established by the collective-bargaining agreement between ITT and Local 509, Clayton asked his union representative to file a grievance on his behalf on the ground that his dismissal was not for just cause. The union investigated Clayton's charges, pursued his grievance through the third step of the grievance procedure, and made a timely request for arbitration.1 It then withdrew the request, choosing not to proceed to arbitration. Clayton was notified of the union's decision after the time for requesting arbitration had expired.2
3
The UAW requires every union member "who feels aggrieved by any action, decision, or penalty imposed upon him" by the union to exhaust internal union appeals procedures before seeking redress from a "civil court or governmental agency." UAW Constitution, Art. 33, § 12. These procedures, established by Arts. 32 and 33 of the UAW Constitution and incorporated into Art. IV of Local 509's bylaws, direct the employee first to seek relief from the membership of his local. Art. 33, § 3. If not satisfied with the result obtained there, the employee may further appeal to the International Executive Board of the UAW, and eventually to either the Constitutional Convention Appeals Committee or to a Public Review Board composed of "impartial persons of good public repute" who are not members or employees of the union. Arts. 32, 33, §§ 3-11.
4
Clayton did not file a timely internal appeal from his local's decision not to seek arbitration of his grievance.3 Instead, six months after the union's withdrawal of its request for arbitration, Clayton filed this action under § 301(a) of the Labor Management Relations Act, 1947, 29 U.S.C. § 185(a), in the District Court for the Central District of California. He alleged that the union had breached its duty of fair representation by arbitrarily refusing to pursue his grievance past the third step of the grievance procedure, and that the employer had breached the collective-bargaining agreement by discharging him without just cause.4
5
Both the union and the employer pleaded as an affirmative defense Clayton's failure to exhaust the internal union appeals procedures. App. 12, 18. The District Court sustained this defense, finding that Clayton had failed to exhaust the internal appeals procedures; that those procedures were adequate as a matter of law; that Clayton had been advised of their existence; and that his failure to exhaust could not be excused as futile. Record 397-404. Accordingly, the court dismissed Clayton's suit against both the union and the employer.
6
The United States Court of Appeals for the Ninth Circuit affirmed the dismissal of Clayton's suit against the union and reversed the dismissal of his suit against the employer. 623 F.2d 563 (1980). Focusing on the adequacy of the relief available under the internal union appeals procedures, the Court of Appeals held that Clayton's failure to exhaust was fatal to his claim against the union, because by filing an internal appeal Clayton might have received money damages, the relief he sought in his § 301 suit against the union. Id., at 566. However, the Court held that Clayton's failure to exhaust did not bar his suit against the employer, because the internal appeals procedures could not result in either reinstatement of his job, which was the relief Clayton sought from the employer under § 301, or in reactivation of his grievance. Id., at 569-570.
7
In No. 80-5049, Clayton argues that his § 301 claim against the UAW and Local 509 should be allowed to proceed despite his failure to exhaust internal union procedures. In No. 80-54, ITT Gilfillan argues that if Clayton's failure to exhaust bars his suit against the union, it must also bar his suit against the employer.
8
The Courts of Appeals are divided over whether an employee should be required to exhaust internal union appeals procedures before bringing suit against a union or employer under § 301. Some hold that the employee's failure to exhaust internal union procedures may not be asserted as a defense by an employer.5 Others permit the defense to be asserted by an employer if the internal appeals procedures could result in reactivation of the grievance.6 With respect to a union, some courts hold that the employee's failure to exhaust is excused if union officials would be so hostile to an employee that he could not hope to obtain a fair hearing.7 Others would also excuse the employee's failure to exhaust if the substantive relief available through the internal procedures would be less than that available in his § 301 action.8
9
We granted certiorari to resolve the conflict. 449 U.S. 950, 101 S.Ct. 352, 66 L.Ed.2d 213 (1980). We reverse the dismissal of Clayton's suit against the union and affirm the reversal of the dismissal of his suit against the employer. We hold that where an internal union appeals procedure cannot result in reactivation of the employee's grievance or an award of the complete relief sought in his § 301 suit, exhaustion will not be required with respect to either the suit against the employer or the suit against the union.
II
10
In Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965), we were asked to decide whether an employee alleging a violation of the collective-bargaining agreement between his union and employer must attempt to exhaust exclusive contractual grievance and arbitration procedures before bringing suit under § 301(a).9 In deciding that issue we looked to principles of federal common law. See Textile Workers v. Lincoln Mills, 353 U.S. 448, 457, 77 S.Ct. 912, 918, 1 L.Ed.2d 912 (1957). Two considerations influenced our decision to require exhaustion. First, Congress had "expressly approved contract grievance procedures as a preferred method for settling disputes and stabilizing the 'common law' of the plant." 379 U.S., at 653, 85 S.Ct., at 616.10 Second, a contrary rule, allowing an employee to bring suit under § 301 without attempting to exhaust the contractual grievance procedures, would "deprive employer and union of the ability to establish a uniform and exclusive method for orderly settlement of employee grievances." Ibid.11 The rule established by Republic Steel was thus intended to protect the integrity of the collective-bargaining process and to further that aspect of national labor policy that encourages private rather than judicial resolution of disputes arising over the interpretation and application of collective-bargaining agreements. See Hines v. Anchor Motor Freight, Inc., 424 U.S., at 567, 570-571, 96 S.Ct., at 1057, 1059.
11
The contractual procedures we required the employee to exhaust in Republic Steel are significantly different from the procedures at issue here. In these cases, the Court is asked to require exhaustion of internal union procedures. These procedures are wholly a creation of the UAW Constitution. They were not bargained for by the employer and union and are nowhere mentioned in the collective-bargaining agreement that Clayton seeks to have judicially enforced.12 Nonetheless, Clayton's employer and union contend that exhaustion of the UAW procedures, like exhaustion of contractual grievance and arbitration procedures, will further national labor policy and should be required as a matter of federal common law. Their argument, in brief, is that an exhaustion requirement will enable unions to regulate their internal affairs without undue judicial interference and that it will also promote the broader goal of encouraging private resolution of disputes arising out of a collective-bargaining agreement.
12
We do not agree that the policy of forestalling judicial interference with internal union affairs is applicable to these cases.13 This policy has been strictly limited to disputes arising over internal union matters such as those involving the interpretation and application of a union constitution. As we stated in NLRB v. Marine Workers, 391 U.S. 418, 88 S.Ct. 1717, 20 L.Ed.2d 706 (1968), the policy of deferring judicial consideration of internal union matters does not extend to issues "in the public domain and beyond the internal affairs of the union." Id., at 426, n. 8.14 Here, Clayton's dispute against his union is based upon an alleged breach of the union's duty of fair representation. This allegation raises issues rooted in statutory policies extending far beyond internal union interests. See United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 66, and n. 2, 101 S.Ct. 1559, 1562, and n. 2, 67 L.Ed.2d 732 (STEWART, J., concurring); Hines v. Anchor Motor Freight, Inc., supra, at 562, 96 S.Ct., at 1055; Vaca v. Sipes, 386 U.S., at 182, 87 S.Ct., at 912; Humphrey v. Moore, 375 U.S. 335, 84 S.Ct. 363, 11 L.Ed.2d 370 (1964).
13
Our analysis, then, focuses on that aspect of national labor policy that encourages private rather than judicial resolution of disputes arising over collective-bargaining agreements. Concededly, a requirement that aggrieved employees exhaust internal remedies might lead to nonjudicial resolution of some contractual grievances. For example, an employee who exhausts internal union procedures might decide not to pursue his § 301 action in court, either because the union offered him a favorable settlement, or because it demonstrated that his underlying contractual claim was without merit. However, we decline to impose a universal exhaustion requirement lest employees with meritorious § 301 claims be forced to exhaust themselves and their resources by submitting their claims to potentially lengthy internal union procedures that may not be adequate to redress their underlying grievances.
14
As we stated in NLRB v. Marine Workers, supra, at 426, and n. 8, 88 S.Ct., at 1722, and n. 8, courts have discretion to decide whether to require exhaustion of internal union procedures. In exercising this discretion, at least three factors should be relevant: first, whether union officials are so hostile to the employee that he could not hope to obtain a fair hearing on his claim; second, whether the internal union appeals procedures would be inadequate either to reactivate the employee's grievance or to award him the full relief he seeks under § 301; and third, whether exhaustion of internal procedures would unreasonably delay the employee's opportunity to obtain a judicial hearing on the merits of his claim. If any of these factors are found to exist, the court may properly excuse the employee's failure to exhaust.
15
Clayton has not challenged the finding of the lower courts that the UAW internal appeals procedures are fair and reasonable. He concedes that he could have received an impartial hearing on his claim had he exhausted the internal union procedures. See Glover v. St. Louis-San Francisco R. Co., 393 U.S. 324, 330-331, 89 S.Ct. 548, 551-552, 21 L.Ed.2d 519 (1969). Accordingly, our inquiry turns to the second factor, whether the relief available through the union's internal appeals procedures is adequate.
16
In his suit under § 301, Clayton seeks reinstatement from his employer and monetary relief from both his employer and his union.15 Although, the UAW Constitution does not indicate on its face what relief is available through the internal union appeals procedures,16 the parties have stipulated that the Public Review Board can award backpay in an appropriate case, Tr. 35-36, and the two decisions of the Public Review Board reprinted in the joint appendix both resulted in awards of backpay. App. 89-109. It is clear, then, that at least some monetary relief may be obtained through the internal appeals procedures.17
17
It is equally clear that the union can neither reinstate Clayton in his job, see n. 15, supra, nor reactivate his grievance. Article IX of the collective-bargaining agreement between Local 509 and ITT Gilfillan provides that the union may obtain arbitration of a grievance only if it gives "notice . . . to the Company in writing within fifteen (15) working days after the date of the Company's decision at Step 3 of the Grievance Procedure." By the time Clayton learned of his union's decision not to pursue the grievance to arbitration, this 15-day time limit had expired. See n. 2, supra. Accordingly, the union could not have demanded arbitration even if the internal appeal had shown Clayton's claim to be meritorious. The union was bound by its earlier decision not to pursue Clayton's grievance past the third stage of the grievance and arbitration procedure.18 For the reasons that follow, we conclude that these restrictions on the relief available through the internal UAW procedures render those procedures inadequate.19
18
Where internal union appeals procedures can result in either complete relief to an aggrieved employee or reactivation of his grievance, exhaustion would advance the national labor policy of encouraging private resolution of contractual labor disputes. In such cases, the internal union procedures are capable of fully resolving meritorious claims short of the judicial forum. Thus, if the employee received the full relief he requested through internal procedures, his § 301 action would become moot, and he would not be entitled to a judicial hearing. Similarly, if the employee obtained reactivation of his grievance through internal union procedures, the policies underlying Republic Steel would come into play,20 and the employee would be required to submit his claim to the collectively bargained dispute-resolution procedures.21 In either case, exhaustion of internal remedies could result in final resolution of the employee's contractual grievance through private rather than judicial avenues.
19
By contrast, where an aggrieved employee cannot obtain either the substantive relief he seeks or reactivation of his grievance, national labor policy would not be served by requiring exhaustion of internal remedies. In such cases, exhaustion would be a useless gesture: it would delay judicial consideration of the employee's § 301 action, but would not eliminate it.22 The employee would still be required to pursue judicial means to obtain the relief he seeks under § 301. Moreover, exhaustion would not lead to significant savings in judicial resources, because regardless of the outcome of the internal appeal, the employee would be required to prove de novo in his § 301 suit that the union breached its duty of fair representation and that the employer breached the collective-bargaining agreement.23 As we recently stated, one of the important federal policies underlying § 301, is the " 'relatively rapid disposition of labor disputes.' " United Parcel Service, Inc. v. Mitchell, 451 U.S., at 63, 101 S.Ct., at 1564, quoting Auto Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 707, 86 S.Ct. 1107, 1114, 16 L.Ed.2d 192 (1966). This policy is undermined by an exhaustion requirement unless the internal procedures are capable of either reactivating the employee's grievance or of redressing it.24
20
In reliance upon the Court of Appeals' opinion in these cases, the UAW contends that even if exhaustion is not required with respect to the employer, it should be required with respect to the union, because the relief Clayton seeks against the union in his § 301 suit is available through internal union procedures. But cf. n. 17, supra. We disagree. While this argument might have force where the employee has chosen to bring his § 301 suit only against the union, the defense should not be available where, as here, the employee has filed suit against both the union and the employer. A trial court requiring exhaustion with respect to the suit against the union, but not with respect to the suit against the employer, would be faced with two undesirable alternatives. If it stayed the action against the employer pending resolution of the internal appeals procedures, it would effectively be requiring exhaustion with respect to the suit against the employer, a result we have held would violate national labor policy. Yet if it permitted the action against the employer to proceed, and tolled the running of the statute of limitation in the suit against the union until the internal procedures had been exhausted, it could very well find itself with two separate § 301 suits, based on the same facts, proceeding at different paces in its courtroom. As we suggested in Vaca v. Sipes, 386 U.S., at 197, 87 S.Ct., at 920, this is a result that should be avoided if possible. The preferable approach is for the court to permit the employee's § 301 action to proceed against both defendants, despite the employee's failure to exhaust, unless the internal union procedures can reactivate the grievance or grant the relief that would be available in the employee's § 301 suit against both defendants.
III
21
In contrast to contractual grievance and arbitration procedures, which are negotiated by the parties to a collective-bargaining agreement and are generally designed to provide an exclusive method for resolving disputes arising under that agreement, internal union appeals procedures are created by the union constitution and are designed to settle disputes between an employee and his union that arise under that constitution. Because of this distinction, the policies underlying Republic Steel, encouraging private resolution of grievances arising out of the collective-bargaining process, are not directly applicable to the issue whether to require exhaustion of internal union procedures.
22
We conclude that the policies underlying Republic Steel are furthered by an exhaustion requirement only where the internal union appeals procedures can either grant the aggrieved employee full relief or reactivate his grievance. For only in those circumstances is there a reasonable possibility that the employee's claim will be privately resolved. If the internal procedures are not adequate to effect that relief, the employee should not be required to expend time and resources seeking a necessarily incomplete resolution of his claim prior to pursuing judicial relief. If the internal procedures are inadequate, the employee's failure to exhaust should be excused, and he should be permitted to pursue his claim for breach of the duty of fair representation and breach of the collective-bargaining agreement in court under § 301.
23
In this case, the internal union appeals panels cannot reactivate Clayton's grievance and cannot grant Clayton the reinstatement relief he seeks under § 301. We therefore hold that Clayton should not have been required to exhaust internal union appeals procedures prior to bringing suit against his union and employer under § 301.
24
Affirmed in part, reversed in part, and remanded.
25
Justice POWELL, with whom THE CHIEF JUSTICE joins, dissenting.
26
I join Justice REHNQUIST'S dissent, and write briefly to emphasize a rationale—suggested by an amicus curiae*—that is consistent both with national labor policy and the relevant precedents.
27
In briefest summary, I would hold that in the circumstances of this case no issue concerning the breach of the union's statutory duty of fair representation properly can be said to arise at all. The union has not made a final determination whether to pursue arbitration on Clayton's behalf. Clayton should not be able to claim a breach of duty by the union until the union has had a full opportunity to make this determination. No such opportunity exists until Clayton exhausts the procedures available for resolving that question. Thus, as Clayton cannot claim a breach of duty by the union, he cannot bring a breach of contract suit under § 301 against his employer.
28
In my view, the asserted distinction in a tripartite case such as this one between contractual and internal union remedies, ante, at 687, is immaterial. The situation presented in this case is well within the doctrine underlying Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965), that employees must pursue all procedures established for determining whether a union will go forward with a grievance. Employees must pursue available procedures even if the collective-bargaining agreement contains time limits that appear on their face to bar revival of the grievance. As the Court noted in John Wiley & Sons v. Livingston, 376 U.S. 543, 556-557, 84 S.Ct. 909, 917, 11 L.Ed.2d 898 (1964), "[q]uestions concerning the procedural prerequisites to arbitration do not arise in a vacuum; they develop in the context of an actual dispute about the rights of the parties to the contract or those covered by it." Therefore, "it best accords with the usual purposes of an arbitration clause and with the policy behind federal labor law to regard procedural disagreements not as separate disputes but as aspects of the dispute which called the grievance procedures into play." Id., at 559, 84 S.Ct., at 919. Thus, the question whether such time limits should be waived in a particular case is itself an arbitrable matter.
29
Justice REHNQUIST, with whom THE CHIEF JUSTICE, Justice STEWART, and Justice POWELL join, dissenting.
30
The Court of Appeals for the Ninth Circuit held that the defense of exhaustion of internal union remedies was available to the union defendant in this § 301 action but not to the employer defendant. The result of this ruling was to put the employer in the unenviable position of having to defend the manner in which the union represented one of its employees (Clayton) during a grievance procedure. The Court's opinion today rights what I view as the principal error in the decision below by requiring the actions against the employer and union to proceed simultaneously. Ante, at 2098. The Court reaches this conclusion by holding that in this particular case the exhaustion defense should not be available to either the union or employer. I, however, view differently than does the Court the benefits to be obtained from requiring exhaustion in these cases, and would require Clayton to exhaust his intraunion remedies before proceeding against either his union or employer.
31
The Court does not require exhaustion of internal union remedies in this case because it finds the remedies cannot provide Clayton with all the substantive relief he seeks (i. e., money damages and reinstatement) or with reactivation of his grievance. Ante, at 693. The Court, however, concedes that where the internal remedies can provide such relief, the exhaustion defense should be available to the employer and union alike. Ante, at 692, and n. 20. Presumably, this would require exhaustion in a § 301 case where the only relief sought was money damages and money damages were obtainable through the internal union procedures. In such a case, the employee would be able to obtain all "the substantive relief he seeks." Ante, at 693.
32
The Court creates a three-prong test for determining when a district court should exercise its discretion and require exhaustion of intraunion remedies. Ante, at 689. Admittedly, a district court when exercising this discretion should carefully consider the first criterion referred to by the Court—whether union officials are so hostile to the employee that he could not obtain a fair hearing on his claim. Ibid. However, there is no question that this criterion does not come into play in this case. Ibid.
33
The second prong of the Court's test is "whether the internal union appeals procedures would be inadequate either to reactivate the employee's grievance or to award him the full relief he seeks under § 301 . . . ." Ibid. Exhaustion is not required in this case, the Court says, because the UAW's internal union appeals procedures cannot provide Clayton with reinstatement or reactivation of his grievance.
34
However, no prior case of this Court has held that exhaustion should not be required unless the internal union remedies can provide all the substantive relief requested or reactivation of the grievance. The principal difficulty with the Court's opinion lies in its framing of this second criterion which reflects much too narrow a view of the purposes of the exhaustion defense and the benefits which will likely result from requiring exhaustion in a case where a union has established a means for reviewing the manner in which it has represented an employee during a grievance. It is worth noting that neither NLRB v. Marine Workers, 391 U.S. 418, 88 S.Ct. 1717, 20 L.Ed.2d 706 (1968), on which the Court so heavily relies, nor any other case of this Court, supports the language used by the Court in the second prong of its test. In fact, Marine Workers simply states exhaustion should not be required "when the administrative remedies are inadequate." Id., at 426, n. 8, 88 S.Ct., at 1722, n. 8. Our focus therefore should be on the adequacies of the union remedies when viewed in the context of the underlying purpose of the exhaustion defense—which is to encourage private rather than judicial resolution of disputes.
35
The exhaustion of intraunion remedies, even where those remedies cannot provide reinstatement or reactivation of a grievance, does promote private resolution of labor disputes. Resort to the intraunion appeals procedures provides the union with its first opportunity to focus on the issue of fair representation—as opposed to the alleged breach of the collective-bargaining agreement. Resort to the union appeals procedures gives the union an opportunity to satisfy the employee that its decision not to pursue a grievance was correct. If successful on this score, litigation is averted. Where a union determines through its appeals procedures that it mishandled an employee's grievance, litigation may also be averted because at that point both the union and the employer have a strong incentive to pursue private resolution of the grievance. Even where a collective-bargaining agreement does not provide for reactivation of a grievance it is reasonable to assume that many employers, when confronted with both a determination by a union that it had breached its duty of fair representation and the immediate prospect of an employee commencing litigation, would seriously consider voluntarily reactivating the grievance procedure to avoid the additional burden and costs of litigation. Should litigation nonetheless occur, exhaustion may well have narrowed the factual and legal issues to be decided and thus result in a savings of judicial resources. A fact that should also not be discounted is that the conscientious handling by a union of an employee's intraunion appeal cannot help but enhance the union's prestige with its members. Cf. Republic Steel Corp. v. Maddox, 379 U.S. 650, 653, 85 S.Ct. 614, 616, 13 L.Ed.2d 580 (1965). Exhaustion promotes union democracy and self-government as well as the broader policy of non-interference with internal union affairs. A union's incentive to maintain internal procedures which provide substantial procedural protection and which can afford significant substantive relief will be greatly undermined if an employee can simply bypass the procedures at will.
36
The error in the Court's analysis results in part from its apparent belief that intraunion remedies must provide a complete substitute for either the courts or the contract grievance procedure in order to be deemed "adequate." The purpose of intraunion remedies, however, is quite different. These remedies are provided to facilitate or encourage the private resolution of disputes, not to be a complete substitute for the courts. Intraunion remedies can serve this purpose so long as they have the capacity to address whether the union wrongfully handled the grievance. Obviously, if a union appeals procedure cannot address this question, exhaustion should not be required.
37
An additional question which is also of great importance is whether a union should ever be found to have breached its duty of fair representation when a union member shuns an appeals procedure which is both mandated by the union constitution and established for the purpose of allowing the union to satisfy its duty of fair representation. It seems to me not at all unreasonable to say that a union should have the right to require its members to give it the first opportunity to correct its own mistakes. Responsible union self-government demands a fair opportunity to function. This is especially true in a situation such as here where exhaustion of the union remedies could eliminate the need to litigate altogether. Congress has recognized the importance of these values in § 101(a)(4) of the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 522, 29 U.S.C. § 411(a)(4). This section provides in part:
38
"No labor organization shall limit the right of any member thereof to institute an action in any court, or any proceeding before any administrative agency . . . . Provided, That any such member may be required to exhaust reasonable hearing procedures (but not to exceed a four-month lapse of time) within such organization, before instituting legal or administrative proceedings against such organizations or any officer thereof . . . ." In § 101(a)(4), Congress has restricted the power of unions to limit the rights of their members to resort to the courts. At the same time, however, Congress gave the judiciary the discretion to require union members to exhaust hearing procedures. As this Court explained in Marine Workers, the language in § 101(a)(4) is
39
"a statement of policy that the public tribunals whose aid is invoked may in their discretion stay their hands for four months, while the aggrieved person seeks relief within the union. We read it, in other words, as installing in this labor field a regime comparable to that which prevails in other areas of law before the federal courts, which often stay their hands while a litigant seeks administrative relief before the appropriate agency." 391 U.S., at 426, 88 S.Ct., at 1722.
40
Section 101(a)(4) reflects what I believe to be the reasonable compromise Congress reached when trying to balance two somewhat competing interests—furtherance of the national labor policy in favor of private resolution of disputes on the one hand and the desire not to unduly burden or "exhaust" an individual employee with time-consuming procedures on the other. It is fair to say that § 101(a)(4) represents Congress' judgment that limiting access to the courts for at least four months is not an unreasonable price to pay in exchange for the previously mentioned benefits exhaustion may provide.
41
The language of § 101(a)(4) also goes a long way to satisfy the third prong of the test set forth by the Court today. Exhaustion of internal union procedures should not be required where such would unreasonably delay an employee's opportunity to obtain a judicial hearing on the merits of his claim. Ante, at 689. Intraunion procedures which take years to complete serve no worthwhile purpose in the overall scheme of promoting the prompt and private resolution of claims. But a requirement that an employee not be permitted to go to court without first having pursued an intraunion appeal for at least four months does substantially further this national labor policy without placing any unfair burden on an employee. As such, I think all interested parties would be well served by a requirement that employees exhaust their intraunion procedures for this limited period of time prescribed by Congress.
1
The collective-bargaining agreement between Local 509 and ITT Gilfillan establishes a four-step grievance procedure, with binding arbitration as the fourth step. Article IX of the agreement provides that if the union wishes to request arbitration, it must do so within 15 working days after completion of the third step of the grievance procedure. App. 31-36.
2
Clayton was notified of the union's decision by a letter written by the International Representative responsible for servicing Local 509. Id., at 78-79. Neither the union nor the employer contests Clayton's allegation that he received this letter more than 15 working days after completion of the third step of the grievance procedure. See id., at 7; Tr. 88-99.
3
Under Art. 33, § 3, of the UAW Constitution, Clayton had 30 days from the date the union withdrew its request for arbitration to initiate the internal union appeals procedures.
4
To prevail in an action under § 301 against either the employer or the union, an employee must ordinarily establish both that the union breached its duty of fair representation and that the employer breached the collective-bargaining agreement. Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 570-571, 96 S.Ct. 1048, 1059, 47 L.Ed.2d 231 (1976).
5
See, e. g., Johnson v. General Motors, 641 F.2d 1075, 1083 (CA2 1981); Geddes v. Chrysler Corp., 608 F.2d 261, 264 (CA6 1979); Petersen v. Rath Packing Co., 461 F.2d 312, 315 (CA8 1972); Retana v. Apartment, Motel, Hotel and Elevator Operators Union, 453 F.2d 1018, 1027 n. 16 (CA9 1972).
6
See, e. g., Varra v. Dillon Companies, Inc., 615 F.2d 1315, 1317-1318 (CA10 1980); Baldini v. Local Union No. 1095, 581 F.2d 145, 150 (CA7 1978); Winter v. Local Union No. 639, 186 U.S.App.D.C. 315, 319-320, 569 F.2d 146, 150-151 (1977); Harrison v. Chrysler Corp., 558 F.2d 1273, 1278 (CA7 1977).
7
See, e. g., Fizer v. Safeway Stores, Inc., 586 F.2d 182, 183-184 (CA10 1978); Winter v. Local Union No. 639, supra, at 318, 569 F.2d, at 149; Imel v. Zohn Mfg. Co., 481 F.2d 181, 184 (CA10 1973), cert. denied, 415 U.S. 915, 94 S.Ct. 1411, 39 L.Ed.2d 469 (1974).
8
See, e. g., Tinsley v. United Parcel Service, Inc., 635 F.2d 1288, 1290 (CA7 1980); Geddes v. Chrysler Corp., supra, at 264; Baldini v. Local Union No. 1095, supra, at 149; Buzzard v. Local Lodge 1040, 480 F.2d 35, 41 (CA9 1973). These cases compare the relief available through internal procedures with the relief available against the union under § 301.
9
Section 301(a) of the Labor Management Relations Act, 1947, 61 Stat. 156, 29 U.S.C. § 185(a), provides:
"Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce . . . 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."
10
Section 203(d) of the Labor Management Relations Act, 61 Stat. 153, 29 U.S.C. § 173(d), provides that "[f]inal adjustment by a method agreed upon by the parties is declared to be the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective-bargaining agreement."
11
We also noted that exhaustion would serve the interests of both the union and the employer:
"[It] complements the union's status as exclusive bargaining representative by permitting [the union] to participate actively in the continuing administration of the contract. In addition, conscientious handling of grievance claims will enhance the union's prestige with employees. Employer interests, for their part, are served by limiting the choice of remedies available to aggrieved employees." 379 U.S., at 653, 85 S.Ct., at 616.
Moreover, exhaustion would not adversely affect the employee:
"[I]t cannot be said, in the normal situation, that contract grievance procedures are inadequate to protect the interests of an aggrieved employee until the employee has attempted to implement the procedures and found them so." Ibid.
We concluded that since an employee bringing a § 301 claim is asserting rights created by a collective-bargaining agreement, he should also be required to pursue the dispute-resolution procedures created by that agreement. See Hines v. Anchor Motor Freight, Inc., 424 U.S., at 562-563, 96 S.Ct., at 1055; Vaca v. Sipes, 386 U.S. 171, 184, 87 S.Ct. 903, 913, 17 L.Ed.2d 842 (1967).
12
Indeed, the parties concede that Clayton has exhausted the grievance and arbitration procedures that were expressly created by the collective-bargaining agreement.
13
This policy has its statutory roots in § 101(a)(4) of the Landrum-Griffin Act, 73 Stat. 522, 29 U.S.C § 411(a)(4), which is part of the subchapter of that Act entitled "Bill of Rights of Members of Labor Organizations." Section 101(a)(4) provides:
"No labor organization shall limit the right of any member thereof to institute an action in any court, . . . Provided, That any such member may be required to exhaust reasonable hearing procedures (but not to exceed a four-month lapse of time) within such organization, before instituting legal . . . proceedings against such organizations or any officer thereof. . . ."
14
In NLRB v. Marine Workers, we held that respondent union could not discipline one of its members for failing to exhaust internal appeals procedures before filing an unfair labor practice charge with the National Labor Relations Board, because the unfair labor practices charge was "in the public domain and beyond the internal affairs of the union." 391 U.S., at 425, 88 S.Ct., at 1722. "A proceeding by the [NLRB] is not to adjudicate private rights but to effectuate a public policy," and "[a]ny coercion used to discourage, retard, or defeat . . . access [to those proceedings] is beyond the legitimate interests of a labor organization." Id., at 424, 88 S.Ct., at 1721. Moreover, "[t]here cannot be any justification to make the public processes wait until the union member exhaust internal procedures plainly inadequate to deal with all phases of the complex problem concerning employer, union, and employee member. If the member becomes exhausted, instead of the remedies, the issues of public policy are never reached and an airing of the grievance never had." Id., at 425, 88 S.Ct., at 1722. See also 105 Cong.Rec. 17899 (1959) (remarks of Sen. Kennedy) (§ 101(a)(4) not intended "to eliminate existing grievance procedures established by union constitutions for redress of alleged violations of their internal governing laws").
15
App. 8-9. Reinstatement is available only from the employer, because the union has no power to order reinstatement under the collective-bargaining agreement. Damages, however, can be assessed against both the employer and the union. As we stated in Vaca v. Sipes, 386 U.S., at 197-198, 87 S.Ct., at 920-921, an employee who establishes that the union breached its duty of fair representation in processing his grievance, and that the employer breached the collective-bargaining agreement, may be entitled to an award of damages "apportion[ed] . . . between the employer and the union according to the damage caused by the fault of each. Thus, 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."
16
The UAW Constitution states only that the Constitution Convention Appeals Committee has "the authority to consider and decide all appeals submitted to it," Art. 33, § 8, and that the Public Review Board has the "authority and duty to make final and binding decisions on all cases appealed to it," Art. 32, § 3(b), and to "dispose of all facets of the appeal." Art. 33, § 11.
17
The record does not indicate whether this monetary relief includes backpay only, or whether it also may include prospective monetary relief and incidental or punitive damages, relief that Clayton is apparently seeking in his § 301 action. See App. 9.
18
The parties stipulated at trial that once Local 509 withdrew its request for arbitration, that "was the end of the road so far as remedies under the contract were concerned." Tr. 109; see also id., at 260, 268. That stipulation is consistent with the collective-bargaining agreement. Although Art. VIII, § 5, which establishes time limits for processing, grievances, states that "[t]he time limits contained herein may be extended by mutual agreement in writing by the parties concerned," there is no comparable waiver provision in Art. IX, which establishes the 15-day time limit for requesting arbitration. See also Tinsley v. United Parcel Service, Inc., 635 F.2d, at 1292; Baldini v. Local Union No. 1095, 581 F.2d, at 150; Harrison v. Chrysler Corp., 558 F.2d, at 1279.
Although most collective-bargaining agreements contain similarly strict time limits for seeking arbitration of grievances, there are some exceptions. The UAW informs us that "[s]ome employers and unions have, through collective bargaining, agreed to allow the reinstatement of withdrawn grievances where a union tribunal reverses the union's initial decision. This is true, for example in the current UAW contracts with the major automobile and agricultural implement manufacturers." Brief for Respondents in No. 80-5049, p. 18, n. 40. In such cases, the relief available through the union's internal appeal procedures would presumably be adequate.
19
Accordingly, we need not discuss the third factor, whether exhaustion of the union's otherwise adequate internal appeals procedures would unreasonably delay the employee's opportunity to obtain a judicial hearing on the merits of his claim.
20
Allowing a defendant in a § 301 action to demand exhaustion of internal union procedures when those procedures could lead to reactivation of a stalled grievance is wholly consistent with Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965). In Republic Steel, we held that an employer may rely on a provision in a collective-bargaining agreement requiring its employees to submit all contractual grievances to arbitration prior to bringing suit under § 301. If a provision in the collective-bargaining agreement also permits reactivation of a grievance after an internal union appeal, an employer or union should also be able to rely on that provision and thus defend the § 301 suit on the ground that the employee failed to exhaust internal union procedures.
21
In addition, by reactivating the grievance, the union might be able to rectify the very wrong of which the employee complains—a breach of the duty of fair representation caused by the union's refusal to seek arbitration—and the employee would then be unable to satisfy the precondition to a § 301 suit against the employer.
22
Of course exhaustion might deplete the employee's energy and resources to the point where he chooses not to pursue his § 301 claim in court, but that result is surely inconsistent with federal policy.
23
Even if the union admitted during the internal appeals procedures that it had breached its duty of fair representation, an admission the UAW has apparently made only once in the 20 years preceding 1977, see Klein, Enforcement of the Right to Fair Representation: Alternative Forums, The Duty of Fair Representation 103 (1977), the employee would still not be saved the time and expense of proving that breach in his § 301 suit. While a union's admission that it breached its duty of fair representation is certainly evidence a court can consider, an employer defending a § 301 suit would still be entitled to prove that no such breach had occurred. See Vaca v. Sipes, 386 U.S., at 186-187, 87 S.Ct., at 914-915.
24
We are also not persuaded by the Court of Appeals' assumption that exhaustion would narrow and focus the issues for ultimate judicial determination. The Court of Appeals stated:
"The UAW's liability (if any) for breach of its duty of fair representation
would depend on the reasons for the union's withdrawal of the arbitration request. There is little in the record to indicate why the local official changed his mind and withdrew the arbitration request. But the missing motive is precisely the sort of information that an appellate body within the union would have elicited, compiling a record that would greatly assist the court now." 623 F.2d, at 566 (emphasis added).
There are three reasons why we are not persuaded by this analysis. First, the record does indicate why the union withdrew its request for arbitration of Clayton's grievance. The letter from Local 509's International Representative to Clayton, informing him that the union had withdrawn its request for arbitration, listed five reasons in support of the union's decision. See n. 2, supra. Second, since the UAW Constitution does not on its face require any of the decisionmaking panels of the union to explain the reasons underlying their disposition of a employee's internal union appeal, there is no guarantee that exhaustion will result in a useful interpretation of union rules. Third, in many cases the union tribunal is not permitted to consider certain allegations the employee could assert under § 301. In these cases, for example, Clayton alleges that the union "acted arbitrarily . . . and discriminatorily" in refusing to seek arbitration of his grievance. App. 6 (emphasis added). The UAW Constitution, however, states that the Public Review Board can only consider allegations that the employee's grievance "was improperly handled [by the union] because of fraud, discrimination, or collusion with management." Art. 33, § 8(b) (emphasis added). This standard offers the aggrieved employee less protection than the "arbitrary, discriminatory, or in bad faith" standard for breach of the duty of fair representation that we developed in Vaca v. Sipes, supra, at 190, 87 S.Ct., at 916. As the General Counsel to the Public Review Board has stated:
"The UAW acknowledges that it has a duty of fair representation to its members. Moreover, it acknowledges that its members may assert a claim for a breach of the duty of fair representation within the system of internal remedies. It does not concede to its members, however, that arbitrary, perfunctory, or negligent conduct amounts to a breach of the duty of fair representation, nor does it permit them even to assert this type of claim before the PRB, since the standard of review is jurisdictional. That is, unless the requisite claim is made (fraud, discrimination, or collusion) the board may not entertain it." Klein, supra, at 99.
See also Johnson v. General Motors, 641 F.2d, at 1081. Of course, if an allegation cannot be considered by the Public Review Board, no record helpful to a court will be made with respect to that issue. In sum, we conclude that the prospect that exhaustion would create a record helpful to a court in a subsequent § 301 action is too speculative to be given much weight.
*
Brief for the American Federation of Labor and Congress of Industrial Organizations as Amicus Curiae 3-4, 5-14.
| 67
|
451 U.S. 648
101 S.Ct. 2070
68 L.Ed.2d 514
WESTERN AND SOUTHERN LIFE INSURANCE COMPANY, Appellant,v.STATE BOARD OF EQUALIZATION OF CALIFORNIA.
No. 79-1423.
Argued Jan. 12, 1981.
Decided May 26, 1981.
Syllabus
California, in addition to imposing a premiums tax on both foreign and domestic insurance companies doing business in the State, imposes a "retaliatory" tax on such a foreign insurer when the insurer's State of incorporation imposes higher taxes on California insurers doing business in that State than California would otherwise impose on that State's insurers doing business in California. Appellant, an Ohio insurer doing business in California, after unsuccessfully filing administrative refund claims for California retaliatory taxes paid, brought a refund suit in California Superior Court, alleging that the retaliatory tax violates the Commerce Clause and the Equal Protection Clause of the Fourteenth Amendment. The Superior Court ruled the tax unconstitutional, but the California Court of Appeal reversed.
Held:
1. The retaliatory tax does not violate the Commerce Clause. The McCarran-Ferguson Act, which leaves the regulation and taxation of insurance companies to the States, removes entirely any Commerce Clause restriction upon California's power to tax the insurance business. Neither the language nor the history of that Act suggests that it does not permit, as appellant argues "anti-competitive state taxation that discriminates against out-of-state insurers." Pp. 652-655.
2. Nor does the retaliatory tax violate the Equal Protection Clause. Pp. 655-674.
(a) Whatever the extent of a State's authority to exclude foreign corporations from doing business within the State, that authority does not justify imposition of more onerous taxes or other burdens on foreign corporations than those imposed on domestic corporations, unless the discrimination between foreign and domestic corporations bears a rational relation to a legitimate state purpose. Pp. 655-668.
(b) The purpose of the retaliatory tax to promote the interstate business of California insurers by deterring other States from imposing discriminatory or excessive taxes on California insurers is a legitimate state purpose. And the California Legislature rationally could have believed that the retaliatory tax would promote that purpose, it being immaterial whether in fact the tax will accomplish its objectives. Assuming that the lawmakers of each State are motivated in part by a desire to promote the interests of their domestic insurance industry, it is reasonable to suppose that California's retaliatory tax will induce other States to lower the burdens on California insurers in order to spare their domestic insurers the cost of the retaliatory tax in California. Pp. 668-674.
99 Cal.App.3d 410, 159 Cal.Rptr. 539, affirmed.
Alan R. Vogeler, Cincinnati, Ohio, for appellant.
Timothy G. Laddish, San Francisco, Cal., for appellee.
Justice BRENNAN delivered the opinion of the Court.
1
California imposes two insurance taxes on insurance companies doing business in the State. A premiums tax, set at a fixed percentage of premiums paid on insurance policies issued in the State, is imposed on both foreign and domestic insurance companies and a "retaliatory" tax, set in response to the insurance tax laws of the insurer's home State, is imposed on some foreign insurance companies. This case presents the question of the constitutionality of retaliatory taxes assessed by the State of California against appellant Western & Southern Life Insurance Co., an Ohio corporation, and paid under protest for the years 1965 through 1971.
2
* Section 685 of the California Insurance Code imposes a retaliatory tax on out-of-state insurers doing business in California, when the insurer's State of incorporation imposes higher taxes on California insurers doing business in that State than California would otherwise impose on that State's insurers doing business in California.1 In computing the retaliatory tax owed by a given out-of-state insurer, California subtracts the California taxes otherwise due from the total taxes that would be imposed on a hypothetical similar California company doing business in the out-of-state insurer's State of incorporation. If the other State's taxes on the hypothetical California insurer would be greater than California's taxes on the other State's insurer, a retaliatory tax in the amount of the difference is imposed. If the other State's taxes on the hypothetical California insurer would be less than or equal to California's taxes, however, California exacts no retaliatory tax from the other State's insurer.
3
Western & Southern, an Ohio corporation headquartered in Ohio, has engaged in the business of insurance in California since 1955. During the years in question, the company paid a total of $977,853.57 to the State in retaliatory taxes. After unsuccessfully filing claims for refunds with appellee Board of Equalization, Western & Southern initiated this refund suit in Superior Court, arguing that California's retaliatory tax violates the Commerce and Equal Protection Clauses of the United States Constitution.2
4
The Superior Court tried the case on stipulated facts without a jury, and ruled that the retaliatory tax is unconstitutional. It ordered a full refund of retaliatory taxes paid, plus interest and costs. App. 78-79. The California Court of Appeal reversed, upholding the retaliatory tax. 99 Cal.App.3d 410, 159 Cal.Rptr. 539. The California Supreme Court denied Western & Southern's petition for hearing. App. 89. Western & Southern filed a notice of appeal in this Court, and we noted probable jurisdiction. 449 U.S. 817, 101 S.Ct. 66, 66 L.Ed.2d 18 (1980). We affirm.
II
5
The Commerce Clause provides that "The Congress shall have Power . . . To regulate Commerce . . . among the several States." U.S.Const., Art. I, § 8, cl. 3. In terms, the Clause is a grant of authority to Congress, not an explicit limitation on the power of the States. In a long line of cases stretching back to the early days of the Republic, however, this Court has recognized that the Commerce Clause contains an implied limitation on the power of the States to interfere with or impose burdens on interstate commerce.3 Even in the absence of congressional action, the courts may decide whether state regulations challenged under the Commerce Clause impermissibly burden interstate commerce. See, e. g., Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 101 S.Ct. 715, 66 L.Ed.2d 659 (1981); Philadelphia v. New Jersey, 437 U.S. 617, 98 S.Ct. 2531, 57 L.Ed.2d 475 (1978).
6
Our decisions do not, however, limit the authority of Congress to regulate commerce among the several States as it sees fit. In the exercise of this plenary authority, Congress may "confe[r] upon the States an ability to restrict the flow of interstate commerce that they would not otherwise enjoy." Lewis v. BT Investment Managers, Inc., 447 U.S. 27, 44, 100 S.Ct. 2009, 2020, 64 L.Ed.2d 702 (1980); see H. P. Hood & Sons, Inc. v. DuMond, 336 U.S. 525, 542-543, 69 S.Ct. 657, 667, 93 L.Ed. 865 (1949). If Congress ordains that the States may freely regulate an aspect of interstate commerce, any action taken by a State within the scope of the congressional authorization is rendered invulnerable to Commerce Clause challenge.
7
Congress removed all Commerce Clause limitations on the authority of the States to regulate and tax the business of insurance when it passed the McCarran-Ferguson Act, 59 Stat. 33, 15 U.S.C. § 1011 et seq., as this Court acknowledged in State Board of Insurance v. Todd Shipyards Corp., 370 U.S. 451, 452, 82 S.Ct. 1380, 1381, 8 L.Ed.2d 620 (1962). See also Group Life & Health Ins. Co., v. Royal Drug Co., 440 U.S. 205, 219, n. 18, 99 S.Ct. 1067, 1076 n. 18, 59 L.Ed.2d 261 (1979); Wilburn Boat Co. v. Firemen's Fund Ins. Co., 348 U.S. 310, 319, 75 S.Ct. 368, 373, 99 L.Ed. 337 (1955). Nevertheless, Western & Southern, joined by the Solicitor General as amicus curiae, argues that the McCarran-Ferguson Act does not permit "anti-competitive state taxation that discriminates against out-of-state insurers." Brief for Appellant 28; Brief for United States as Amicus Curiae 16. We find no such limitation in the language or history of the Act.
8
Section 1 of the Act, 59 Stat. 33, 15 U.S.C. § 1011, contains a declaration of policy:
9
"Congress declares that the continued regulation and taxation by the several States of the business of insurance is in the public interest, and that silence on the part of the Congress shall not be construed to impose any barrier to the regulation or taxation of such business by the several States."
10
Section 2(a), 59 Stat. 33, 15 U.S.C. § 1012(a), declares: "The business of insurance . . . shall be subject to the laws of the several States which relate to the regulation or taxation of such business." The unequivocal language of the Act suggests no exceptions.
11
The McCarran-Ferguson Act was passed in the wake of United States v. South-Eastern Underwriters Assn., 322 U.S. 533, 64 S.Ct. 1162, 88 L.Ed. 1440 (1944), which held that insurance is "commerce" within the meaning of the Commerce Clause. Prior to South-East- ern Underwriters, insurance was not considered to be commerce within the meaning of the Commerce Clause, New York Life Ins. Co. v. Deer Lodge County, 231 U.S. 495, 34 S.Ct. 167, 58 L.Ed. 332 (1913); Paul v. Virginia, 8 Wall. 168, 19 L.Ed. 357 (1869), and thus "negative implication from the commerce clause was held not to place any limitation upon state power over the [insurance] business." Prudential Ins. Co. v. Benjamin, 328 U.S. 408, 414, 66 S.Ct. 1142, 1147, 90 L.Ed. 1342 (1946) (emphasis added). Believing that the business of insurance is "a local matter, to be subject to and regulated by the laws of the several States," H.R.Rep.No.143, 79th Cong., 1st Sess., 2 (1945), Congress explicitly intended the McCarran-Ferguson Act to restore state taxing and regulatory powers over the insurance business to their pre-South-Eastern Underwriters scope. H.R.Rep.No.143, supra, at 3; see SEC v. National Securities, Inc., 393 U.S. 453, 459, 89 S.Ct. 564, 568, 21 L.Ed.2d 668 (1969); Maryland Casualty Co. v. Cushing, 347 U.S. 409, 412-413, 74 S.Ct. 608, 609-610, 98 L.Ed. 806 (1954).
12
The Court has squarely rejected the argument that discriminatory state insurance taxes may be challenged under the Commerce Clause despite the McCarran-Ferguson Act. Prudential Ins. Co. v. Benjamin, supra; Prudential Ins. Co. v. Hobbs, 328 U.S. 822, 66 S.Ct. 1360, 90 L.Ed. 1602 (1946) (per curiam ). In Benjamin, the Court considered a South Carolina insurance premiums tax imposed solely on foreign insurance companies. The Court found it unnecessary to decide whether the tax "would be valid in the dormancy of Congress' power," 328 U.S., at 427, 66 S.Ct., at 1153, or whether the tax "would be discriminatory in the sense of an exaction forbidden by the commerce clause," id., at 428, 66 S.Ct., at 1154. Expressly assuming that the tax would be discriminatory, id., at 429, 66 S.Ct., at 1155, the Court held that enactment of the McCarran-Ferguson Act "put the full weight of [Congress'] power behind existing and future state legislation to sustain it from any attack under the commerce clause to whatever extent this may be done with the force of that power behind it, subject only to the exceptions expressly provided for." Id., at 431, 66 S.Ct., at 1155. In Hobbs, this Court sustained against a Commerce Clause challenge a Kansas retaliatory insurance tax indistinguishable from California's.4 The Kansas Supreme Court, upholding the retaliatory tax, had held that the McCarran-Ferguson Act "left the matter of regulation and taxation of insurance companies to the states." In re Insurance Tax Cases, 160 Kan. 300, 313, 161 P.2d 726, 735 (1945). This Court summarily affirmed, citing Benjamin and its companion case, Robertson v. California, 328 U.S. 440, 66 S.Ct. 1160, 90 L.Ed. 1366 (1946). Prudential Ins. Co. v. Hobbs, supra, at 822, 66 S.Ct., at 1360.5
13
We must therefore reject Western & Southern's Commerce Clause challenge to the California retaliatory tax: the McCarran-Ferguson Act removes entirely any Commerce Clause restriction upon California's power to tax the insurance business.
III
14
Ordinarily, there are three provisions of the Constitution under which a taxpayer may challenge an allegedly discriminatory state tax:6 the Commerce Clause, see, e. g., Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 97 S.Ct. 1076, 51 L.Ed.2d 326 (1977); the Privileges and Immunities Clause of Art. IV, § 2, see, e. g., Toomer v. Witsell, 334 U.S. 385, 68 S.Ct. 1156, 92 L.Ed. 1460 (1948); and the Equal Protection Clause, see, e. g., Wheeling Steel Corp. v. Glander, 337 U.S. 562, 69 S.Ct. 1291, 93 L.Ed. 1544 (1949).7 This case assumes an unusual posture, however, because the Commerce Clause is inapplicable to the business of insurance, see Part II,supra, and the Privileges and Immunities Clause is inapplicable to corporations, see Hemphill v. Orloff, 277 U.S. 537, 548-550, 48 S.Ct. 577, 578, 72 L.Ed. 978 (1928). Only the Equal Protection Clause remains as a possible ground for invalidation of the California tax.8
15
The Fourteenth Amendment forbids the States to "deny to any person within [their] jurisdiction the equal protection of the laws," but does not prevent the States from making reasonable classifications among such persons. See Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 359-360, 93 S.Ct. 1001, 1003-04, 35 L.Ed.2d 351 (1973); Allied Stores of Ohio v. Bowers, 358 U.S. 522, 526-527, 79 S.Ct. 437, 440, 3 L.Ed.2d 480 (1959). Thus, California's retaliatory insurance tax should be sustained if we find that its classification is rationally related to achievement of a legitimate state purpose.
16
But as appellee points out, state tax provisions directed against out-of-state parties have not always been subjected to such scrutiny. Rather, a line of Supreme Court cases most recently exemplified by Lincoln National Life Ins. Co. v. Read, 325 U.S. 673, 65 S.Ct. 1220, 89 L.Ed. 1861 (1945), holds that a State may impose a tax on out-of-state corporations for the "privilege" of doing business in the State, without any requirement of a rational basis. Since the California courts have defined the retaliatory tax as a "privilege" tax, Western & Southern Life Ins. Co. v. State Board of Equalization, 4 Cal.App.3d 21, 35, 84 Cal.Rptr. 88, 97-98 (1970), application of the reasoning of these cases would require us to sustain the tax without further inquiry into its rational basis. We must therefore decide first whether California's retaliatory tax is subject to such further inquiry.
17
Some past decisions of this Court have held that a State may exclude a foreign corporation from doing business or acquiring or holding property within its borders. E. g., Asbury Hospital v. Cass County, 326 U.S. 207, 211, 66 S.Ct. 61, 63, 90 L.Ed. 6 (1945); Bank of Augusta v. Earle, 13 Pet. 519, 588-589, 592, 10 L.Ed. 274 (1839). From this principle has arisen the theory that a State may attach such conditions as it chooses upon the grant of the privilege to do business within the State. Paul v. Virginia, supra, 8 Wall., at 181. While this theory would suggest that a State may exact any condition, no matter how onerous or otherwise unconstitutional, from a foreign corporation desiring to do business within it, this Court has also held that a State may not impose unconstitutional conditions on the grant of a privilege. E. g., Sherbert v. Verner, 374 U.S. 398, 404, 83 S.Ct. 1790, 1794, 10 L.Ed.2d 965 (1963); Wieman v. Updegraff, 344 U.S. 183, 192, 73 S.Ct. 215, 219, 97 L.Ed. 216 (1952); Frost & Frost Trucking Co. v. Railroad Comm'n, 271 U.S. 583, 592-593, 46 S.Ct. 605, 606-07, 70 L.Ed. 1101 (1926).
18
These two principles are in obvious tension. If a State cannot impose unconstitutional conditions on the grant of a privilege, then its right to withhold the privilege is less than absolute. But if the State's right to withhold the privilege is absolute, then no one has the right to challenge the terms under which the State chooses to exercise that right. In view of this tension, it is not surprising that the Court's attempt to accommodate both principles has produced results that seem inconsistent or illogical. Compare Doyle v. Continental Ins. Co., 94 U.S. 535, 24 L.Ed. 148 (1877), with Insurance Co. v. Morse, 20 Wall. 445, 22 L.Ed. 365 (1874); and compare Lincoln National Life Ins. Co. v. Read, supra, with Hanover Fire Ins. Co. v. Harding, 272 U.S. 494, 47 S.Ct. 179, 71 L.Ed. 372 (1926).
19
The doctrine that a State may impose taxes and conditions at its unfettered discretion on foreign corporations, in return for granting the "privilege" of doing business within the State, originated in Paul v. Virginia, supra, a case decided only 15 months after the effective date of the Fourteenth Amendment. A Virginia statute required foreign insurance companies to purchase and file a specified amount of bonds as security for the protection of persons insured. No such requirement was imposed on domestic insurers. Several New York insurance companies refused to comply, and their agent was accordingly denied a license to engage in the insurance business in Virginia. The agent was prosecuted for selling insurance without a license; he defended on the ground that the statute was unconstitutional under the Privileges and Immunities Clause of Art. IV, § 2, and the Commerce Clause.9
20
This Court sustained the Virginia statute. Viewing corporations as recipients of "special privileges," 8 Wall., at 181, and believing that "it might be of the highest public interest that the number of corporations in the State should be limited," id., at 182, the Court held that a State's assent to the creation of a domestic corporation or the entry of a foreign corporation "may be granted upon such terms and conditions as those States may think proper to impose." Id., at 181.10 Under this view, there was no need for the Court to consider whether the statute was arbitrary, irrational, or discriminatory.
21
"[The States] may exclude the foreign corporation entirely; they may restrict its business to particular localities, or they may exact such security for the performance of its contracts with their citizens as in their judgment will best promote the public interest. The whole matter rests in their discretion." Ibid.
22
In two important respects, the legal underpinnings of Paul v. Virginia were soon eroded. First, the advent of laws of general incorporation, which swept the country in the late 19th century, see Louis K. Liggett Co. v. Lee, 288 U.S. 517, 557-564, 53 S.Ct. 481, 493-94, 77 L.Ed. 929 (1933) (Brandeis, J., dissenting), altered the very nature of the corporation. Such laws, stimulated largely by "the desire for equality and the dread of special privilege[s]," id., at 549, n. 4, 53 S.Ct., at 490, n. 4, permitted persons to form corporations freely, subject only to generally applicable requirements and limitations. Incorporation lost its status as a special privilege. See Henderson 68.11 Second, the Fourteenth Amendment, ratified in 1868, introduced the constitutional requirement of equal protection, prohibiting the States from acting arbitrarily or treating similarly situated persons differently even with respect to privileges formerly dispensed at the State's discretion. The combination of general incorporation laws and equal protection necessarily undermined the doctrine of Paul v. Virginia. If the right to incorporate or to do business within a State ceases to be a privilege to be dispensed by the State as it sees fit, and becomes a right generally available to all on equal terms, then the argument for special exactions as "privilege taxes" is destroyed.
23
The Court was slow to recognize the consequences of these developments. In Philadelphia Fire Assn. v. New York, 119 U.S. 110, 7 S.Ct. 108, 30 L.Ed. 342 (1886), the first relevant decision governed by the Fourteenth Amendment, the Court unhesitatingly applied the doctrine of Paul v. Virginia to sustain a New York retaliatory insurance tax against an equal protection challenge. The Court held that a corporation is not a "person within [the State's] jurisdiction," 119 U.S., at 116, 7 S.Ct., at 111, for purposes of the Equal Protection Clause unless it is in compliance with the conditions placed upon its entry into the State, and that a corporation assents to all state laws in effect at the time of its entry. Id., at 119, 7 S.Ct., at 112.12
24
"The State, having the power to exclude entirely, has the power to change the conditions of admission at any time, for the future, and to impose as a condition the payment of a new tax, or a further tax, as a license fee. If it imposes such license fee as a prerequisite for the future, the foreign corporation, until it pays such license fee, is not admitted within the State or within its jurisdiction. It is outside, at the threshold, seeking admission, with consent not yet given. . . . By going into the State of New York in 1872, [the Philadelphia Fire Association] assented to such prerequisite as a condition of its admission within the jurisdiction of New York." Id., at 119-120, 7 S.Ct., at 112-113.
25
Justice Harlan dissented. Acknowledging that a State may prescribe certain conditions upon the entry of a foreign corporation, he insisted "that it is the settled doctrine of this court, that the terms and conditions so prescribed must not be repugnant to the Constitution of the United States, or inconsistent with any right granted or secured by that instrument." Id., at 125, 7 S.Ct., at 116. "Can it be," he asked, "that a corporation is estopped to claim the benefit of the constitutional provision securing to it the equal protection of the laws simply because it voluntarily entered and remained in a State which has enacted a statute denying such protection to it and to like corporations from the same State?" Id., at 127, 7 S.Ct., at 117.
26
Although dicta in several cases supported Justice Harlan's view that a State may not impose conditions repugnant to the Constitution upon the grant of a privilege, see, e. g., Ducat v. Chicago, 10 Wall. 410, 415, 19 L.Ed. 972 (1871); Doyle v. Continental Ins. Co., 94 U.S., at 540, the Court continued to reject constitutional claims by corporations challenging conditions to entry. E. g., New York v. Roberts, 171 U.S. 658, 665-666, 19 S.Ct. 58, 61, 43 L.Ed. 323 (1898); Horn Silver Mining Co. v. New York, 143 U.S. 305, 312-315, 12 S.Ct. 403, 404-405, 36 L.Ed. 164 (1892); Pembina Consol. Silver Mining & Milling Co. v. Pennsylvania, 125 U.S. 181, 184-185, 8 S.Ct. 737, 738, 31 L.Ed. 650 (1888). Nonetheless, the first quarter of this century saw "an almost complete disintegration" of the doctrine of Paul v. Virginia. Henderson 111. The change became evident in the October Term 1909, when the Court decided four cases in conflict with the principle that the State possess unlimited power to condition the entry of foreign corporations.13 The most significant of these decisions for our purposes is Southern R. Co. v. Greene, 216 U.S. 400, 30 S.Ct. 287, 54 L.Ed. 536 (1910), which expressly rejected the contention "that the imposition of special taxes upon foreign corporations for the privilege of doing business within the State is sufficient to justify such different taxation." Id., at 417, 30 S.Ct., at 291.14
27
The plaintiff, Southern Railway, had been admitted to do business in Alabama and had invested in permanent facilities in the State. At that time, franchise taxes imposed on domestic corporations were equal to privilege taxes imposed on foreign corporations. Later, Alabama imposed an additional privilege tax on foreign corporations, which Southern Railway challenged on equal protection grounds. The Court held that classifications among corporations for purposes of taxation are constitutional under the Equal Protection Clause only if they bear a "reasonable and just relation" to the purpose for which they are imposed. Ibid. Noting that there were domestic corporations in Alabama whose business was indistinguishable from that of Southern Railway, the Court stated that "[i]t would be a fanciful distinction to say that there is any real difference in the burden imposed because the one is taxed for the privilege of a foreign corporation to do business in the State and [the] other for the right to be a corporation." Id., 216 U.S., at 417-418, 30 S.Ct., at 291. The Court held that "to tax the foreign corporation for carrying on business under the circumstances shown, by a different and much more onerous rule than is used in taxing domestic corporations for the same privilege, is a denial of the equal protection of the laws." Id., at 418, 30 S.Ct., at 291.15
28
In Hanover Fire Ins. Co. v. Harding, 272 U.S. 494, 47 S.Ct. 179, 71 L.Ed. 372 (1926), the Court extended the protections of Southern Railway against discriminatory taxation to corporations holding short-term licenses, and to those without substantial permanent property in the State.16 272 U.S., at 508, 509, 514-515, 47 S.Ct., at 182, 183, 184-185. With respect to the general tax burden on business, "the foreign corporation stands equal, and is to be classified with domestic corporations of the same kind." Id., at 511, 47 S.Ct., at 183.17
29
After Hanover Fire Ins. Co., little was left of the doctrine of Paul v. Virginia and Philadelphia Fire Assn. v. New York, 119 U.S. 110, 7 S.Ct. 108, 30 L.Ed. 342 (1886). It was replaced by a new doctrine:
30
"It is not necessary to challenge the proposition that, as a general rule, the state, having power to deny a privilege altogether, may grant it upon such conditions as it sees fit to impose. But the power of the state in that respect is not unlimited; and one of the limitations is that it may not impose conditions which require the relinquishment of constitutional rights. If the state may compel the surrender of one constitutional right as a condition of its favor, it may, in like manner, compel a surrender of all. It is inconceivable that guaranties embedded in the Constitution of the United States may thus be manipulated out of existence." Frost & Frost Trucking Co. v. Railroad Comm'n, 271 U.S., at 593-594, 46 S.Ct., at 607-608.
31
See also Power Manufacturing Co. v. Saunders, 274 U.S. 490, 497, 47 S.Ct. 678, 680, 71 L.Ed. 1165 (1927).
32
The decision in Lincoln National Life Ins. Co. v. Read, 325 U.S. 673, 65 S.Ct. 1220, 89 L.Ed. 1861 (1945), thus stands as a surprising throwback to the doctrine of Paul v. Virginia and Philadelphia Fire Assn. v. New York. There, the Court seemed to adopt precisely the argument that was rejected in Hanover Fire Ins. Co.: "that a State may discriminate against foreign corporations by admitting them under more onerous conditions than it exacts from domestic companies. . . ." 325 U.S., at 677, 65 S.Ct., at 1222, cf. 272 U.S., at 507, 47 S.Ct., at 182.18 The Court stated that the argument that a State may not impose unconstitutional conditions to entry "proves too much." 325 U.S., at 677, 65 S.Ct., at 1222. "If it were adopted," the Court said, "then the long-established rule that a State may discriminate against foreign corporations by admitting them under more onerous conditions than it exacts from domestic companies would go into the discard." Ibid.19 So long as a tax is "levied upon the privilege of entering the State and engaging in business there," it may not be challenged under the Equal Protection Clause, even though it may impose a burden greater and more discriminatory than was imposed at the date of the corporation's entry into the State. Id., at 678, 65 S.Ct., at 1222.
33
The holding in Lincoln National has been implicitly rejected in at least three subsequent cases. In Wheeling Steel Corp. v. Glander, 337 U.S. 562, 69 S.Ct. 1291, 93 L.Ed. 1544 (1949), the Court struck down a provision of Ohio's ad valorem tax law that subjected certain intangible property of non-Ohio corporations to a tax not applied to identical property of Ohio corporations. The Court concluded that the provision violated the Equal Protection Clause on the ground that the inequality of treatment was "not because of the slightest difference in Ohio's relation to the decisive transaction, but solely because of the different residence of the owner." Id., at 572, 69 S.Ct., at 1296.20 The decision in Wheeling Steel was not directly in conflict with that in Lincoln National, because the Ohio courts had held the tax in Wheeling Steel an "ad valorem property tax, . . . and in no sense a franchise, privilege, occupation, or income tax." 337 U.S., at 572, 69 S.Ct., at 1296. However, the Wheeling Steel decision rejected the principle of Lincoln National: the opinion declared that a State's power to exclude out-of-state corporations is limited by the Constitution; the State may not "exac[t] surrender of rights derived from the Constitution of the United States." 337 U.S., at 571, 69 S.Ct., at 1296 (citing Hanover Fire Ins. Co. v. Harding, supra, at 507, 47 S.Ct., at 182).
34
In Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 79 S.Ct. 437, 3 L.Ed.2d 480 (1959), this Court sustained an Ohio statute exempting non-residents from an ad valorem tax on certain property held in a storage warehouse, but not exempting Ohio residents from the tax. Without alluding to any possibility that legislative classification based on State of incorporation should be subject to a different standard from other classifications the Court held that state tax laws "must proceed upon a rational basis and may not resort to a classification that is palpably arbitrary." Id., at 527, 79 S.Ct., at 441.21
35
Finally, in WHYY, Inc. v. Glassboro, 393 U.S. 117, 89 S.Ct. 286, 21 L.Ed.2d 242 (1968), this Court struck down a New Jersey statute exempting nonprofit corporations incorporated in New Jersey from tax, but denying a similar exemption to nonprofit corporations incorporated in other States. Disregarding Lincoln National, the Court stated the applicable principle of law as follows:
36
"This Court has consistently held that while a State may impose conditions on the entry of foreign corporations to do business in the State, once it has permitted them to enter, 'the adopted corporations are entitled to equal protection with the state's own corporate progeny, at least to the extent that their property is entitled to an equally favorable ad valorem tax basis.' Wheeling Steel Corp. v. Glander, 337 U.S. 562, 571-572 [69 S.Ct. 1291, 1296, 93 L.Ed. 1544]. See Reserve Life Ins. Co. v. Bowers, 380 U.S. 258 [85 S.Ct. 951, 13 L.Ed.2d 959]; Hanover Fire Ins. Co. v. Harding, 272 U.S. 494, 47 S.Ct. 179, 71 L.Ed. 372; Southern R. Co. v. Greene, 216 U.S. 400 [30 S.Ct. 287, 54 L.Ed. 536]." 393 U.S., at 119-120, 89 S.Ct., at 287.
37
In view of the decisions of this Court both before and after Lincoln National, it is difficult to view that decision as other than an anachronism. We consider it now established that, whatever the extent of a State's authority to exclude foreign corporations from doing business within its boundaries, that authority does not justify imposition of more onerous taxes or other burdens on foreign corporations than those imposed on domestic corporations, unless the discrimination between foreign and domestic corporations bears a rational relation to a legitimate state purpose. As we held in Power Manufacturing Co. v. Saunders, 274 U.S., at 493-494, 47 S.Ct., at 679:
38
"No doubt there are . . . subjects as to which foreign corporations may be classified separately from both individuals and domestic corporations and dealt with differently. But there are other subjects as to which such a course is not admissible, the distinguishing principle being that classification must rest on differences pertinent to the subject in respect of which the classification is made."
IV
39
In determining whether a challenged classification is rationally related to achievement of a legitimate state purpose, we must answer two questions: (1) Does the challenged legislation have a legitimate purpose? and (2) Was it reasonable for the lawmakers to believe that use of the challenged classification would promote that purpose? See Minnesota v. Clover Leaf Creamery Co., 449 U.S., at 461-463, 101 S.Ct., at 722-723; Vance v. Bradley, 440 U.S. 93, 97-98, 99 S.Ct. 939, 943, 59 L.Ed.2d 171 (1979).
40
The legislative purpose of California's retaliatory tax is not difficult to discern, for such taxes have been a common feature of insurance taxation for over a century. Although variously expressed, the principal purpose of retaliatory tax laws is to promote the interstate business of domestic insurers by deterring other States from enacting discriminatory or excessive taxes. A survey of state retaliatory tax laws summarized:
41
"[W]hatever their character, it is obvious . . . that their ultimate object is not to punish foreign corporations doing business in the state, or retort the action of the foreign state in placing upon corporations of the enacting state doing business therein burdens heavier than those imposed upon corporations of such foreign state doing business in the enacting state, but to induce such foreign state to show the same consideration to corporations of the enacting state doing business therein as is shown to corporations of such foreign state doing business in the enacting state." Annot., 91 A.L.R. 795 (1934).
42
Accord, Bankers Life Co. v. Richardson, 192 Cal. 113, 124-125, 218 P. 586, 591 (1923); State ex rel. Crittenberger v. Continental Ins. Co., 67 Ind.App. 536, 542, 116 N.E. 929, 936 (1917); Phoenix Ins. Co. v. Welch, 29 Kan. 672, 674-675 (1883); Life & Cas. Ins. Co. v. Coleman, 233 Ky. 350, 351-352, 25 S.W.2d 748, 749-750 (1930); State v. Ins. Co. of North America, 71 Neb. 320, 324, 99 N.W. 36, 38 (1904); Massachusetts Mut. Ins. Co. v. Knowlton, 94 N.H. 409, 412, 54 A.2d 163, 165 (1947); Commonwealth v. Fireman's Fund Ins. Co., 369 Pa. 560, 565-566, 87 A.2d 255, 258 (1952); Pacific Mut. Life Ins. Co. v. State, 161 Wash. 135, 137-138, 296 P. 813, 814-815 (1931).22
43
California's retaliatory tax is based upon a model statute drafted by the insurance industry, and is virtually identical to that enacted by many other States. 4 California Assembly Interim Committee on Revenue and Taxation, The Insurance Tax, No. 15, pp. 64, 66 (1964) (hereafter Insurance Tax). Since the amount of revenue raised by the retaliatory tax is relatively modest, id., at 65, and the impetus for passage of the tax comes from the nationwide insurance industry, it is clear that the purpose is not to generate revenue at the expense of out-of-state insurers, but to apply pressure on other States to maintain low taxes on California insurers. As a committee of the California Assembly has said: "The actual rationale for the provision is that the application of the retaliatory laws acts as a deterrent to state taxation on the insurance industry." Id., at 66.23
44
Decisions by the California courts lend weight to this analysis. The Court of Appeal in the instant case held that the purpose of the retaliatory tax "is to put pressure on the several states to impose the same tax burden on all insurance companies, foreign or domestic, and thereby encourage the doing of interstate business." 99 Cal.App.3d, at 413, 159 Cal.Rptr., at 541. Accord, Western & Southern Life Ins. Co. v. State Board of Equalization, 4 Cal.App.3d, at 34, 84 Cal.Rptr., at 96; Atlantic Ins. Co. v. State Board of Equalization, 255 Cal.App.2d 1, 4, 62 Cal.Rptr. 784, 786 (1967), cert. denied and appeal dism'd, 390 U.S. 529, 88 S.Ct. 1208, 20 L.Ed.2d 86 (1968).
45
Many may doubt the wisdom of California's retaliatory tax; indeed the retaliatory tax has often been criticized as a distortion of the tax system and an impediment to the raising of revenue from the taxation of insurance. See, e. g., Council of State Governments, State Retaliatory Taxation of the Insurance Industry 12-13 (1977); Task Force Report, Statement of Policy on Insurance Premium Taxation, 1 Proc. Nat. Assn. of Ins. Comm'rs 71 (1971); Report of New Jersey Tax Policy Comm., Pt. V, pp. 47-48 (1972); Strickler, The Mess in State Premium Taxation of Insurance Companies, 69 Best's Rev. 34, 38 (1969). But the courts are not empowered to second-guess the wisdom of state policies. Ferguson v. Skrupa, 372 U.S. 726, 729, 83 S.Ct. 1028, 1030, 10 L.Ed.2d 93 (1963). Our review is confined to the legitimacy of the purpose.
46
There can be no doubt that promotion of domestic industry by deterring barriers to interstate business is a legitimate state purpose. This Court has recognized the legitimacy of state efforts to maintain the profit level of a domestic industry, Parker v. Brown, 317 U.S. 341, 363-367, 63 S.Ct. 307, 319-321, 87 L.Ed. 315 (1943), and of efforts to "protect and enhance the reputation" of a domestic industry so that it might compete more effectively in the interstate market, Pike v. Bruce Church, Inc., 397 U.S. 137, 143, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970). California's effort on behalf of its domestic insurance industry is no less legitimate.
47
The mere fact that California seeks to promote its insurance industry by influencing the policies of other States does not render the purpose illegitimate. As we said in United States Steel Corp. v. Multistate Tax Comm'n, 434 U.S. 452, 478, 98 S.Ct. 799, 815, 54 L.Ed.2d 682 (1978):
48
"Any time a State adopts a fiscal or administrative policy that affects the programs of a sister State, pressure to modify those programs may result. Unless that pressure transgresses the bounds of the Commerce Clause or the Privileges and Immunities Clause of Art. IV, § 2 see, e. g., Austin v. New Hampshire, 420 U.S. 656, [95 S.Ct. 1191, 43 L.Ed.2d 530] (1975), it is not clear how our federal structure is implicated."
49
Having established that the purpose of California's lawmakers in enacting the retaliatory tax was legitimate, we turn to the second element in our analysis: whether it was reasonable for California's lawmakers to believe that use of the challenged classification would promote that purpose. We acknowledge at the outset that many persons believe that retaliatory taxes are not an effective means for accomplishment of the goal of deterring discriminatory and excessive taxation of insurance companies by the various States. See, e. g., Bodily, The Effects of Retaliation on the State Taxation of Life Insurers, 44 J. of Risk & Ins. 21 (1977); Pelletier, Insurance Retaliatory Laws, 39 Notre Dame Law. 243, 268-269 (1964); Task Force Report, supra, at 71. But whether in fact the provision will accomplish its objectives is not the question: the Equal Protection Clause is satisfied if we conclude that the California Legislature rationally could have believed that the retaliatory tax would promote its objective. Minnesota v. Clover Leaf Creamery Co., 449 U.S., at 466, 101 S.Ct., at 725; Vance v. Bradley, 440 U.S., at 111, 99 S.Ct., at 950; United States v. Carolene Products Co., 304 U.S. 144, 154, 58 S.Ct. 778, 784, 82 L.Ed. 1234 (1938).
50
The Interim Committee on Revenue and Taxation of the California Assembly conducted a major study of the State's tax system before recommending passage of a constitutional amendment permitting enforcement of the present retaliatory tax.24 That study found:
51
"It is true that insurers are disadvantaged by retaliatory taxation provisions in the short run, for they usually result in some insurers paying more in taxes in retaliating states. But, in the long run, insurers as a group pay less in taxes because of these provisions, since legislators, when considering measures affecting insurers, do consider retaliatory effects in instance after instance." Insurance Tax, at 66.
52
The study concluded that retaliatory taxes "have kept premiums lower and insurers' profits higher than would otherwise have been the case." Id., at 67. It therefore recommended passage of the proposed constitutional amendment. See ibid.
53
We cannot say that the California Legislature's conclusions were irrational, or even unreasonable. Assuming that the lawmakers of each State are motivated in part by a desire to promote the interests of their domestic insurance industry, it is reasonable to suppose that California's retaliatory tax will induce other States to lower the burdens on California insurers in order to spare their domestic insurers the cost of the retaliatory tax in California.
54
In any event, we do not find the evidence against the retaliatory tax overwhelming. The California Department of Finance evaluated the effect of the retaliatory laws:
55
"Whether the insurance companies have sponsored this legislation or not, in their resistance to tax change they have benefitted by it. The home-owned companies in all but a half dozen states are able to say, 'Don't raise our taxes. If you do, we will have to pay more in other states.' The effectiveness of this barrier is demonstrated by the fact that of the 48 states, only 9 increased their insurance tax rates in the last twelve years. . . . None of these is an outstanding insurance state." State Department of Finance, Budget Div., Highlights of Proposal for Quarterly Insurance Tax Payments 3 (1963).
56
The California courts examined the issue, and found:
57
"The common purpose of [retaliatory tax] legislation in the several states has been to discourage any state from imposing discriminatory taxes or other burdens upon out-of-state companies. The effort seems to have been very largely successful; in any event taxes on insurance premiums have stayed close to 2 percent in most states, for both domestic and out-of-state insurers." Atlantic Ins. Co. v. State Board of Equalization, 255 Cal.App.2d, at 4, 62 Cal.Rptr., at 786.
58
Authorities in the field have found the evidence mixed. The leading empirical study of the effect of retaliatory tax laws examined tax rates on life insurance premiums from 1935 through 1972, and found: (1) that tax rates have not increased significantly in absolute terms over the period; (2) that life insurance premiums taxes have declined as a percentage of total state tax revenues;25 and (3) that discrimination against foreign insurance companies has declined over the period. Bodily, 44 J. of Risk & Ins., at 27-32. These results are precisely those that advocates of the retaliatory tax would predict, and thus provide some support for that theory. Statistical analysis of the available data, however, failed to verify this conclusion: the correlation between retaliatory tax laws and the observed results was not found to be statistically significant. Id., at 30-31. The author therefore concluded that retaliatory taxes have been "of questionable value." Id., at 34. Cf. Pelletier, 39 Notre Dame Law., at 267-269; Felton, Retaliatory Insurance Company Taxation: An Evaluation, 28 J. of Ins. 71, 77-78 (1961).
59
Parties challenging legislation under the Equal Protection Clause cannot prevail so long as "it is evident from all the considerations presented to [the legislature], and those of which we may take judicial notice, that the question is at least debatable." United States v. Carolene Products Co., supra, at 154, 58 S.Ct., at 784. On this standard, we cannot but conclude that the California retaliatory insurance tax withstands the strictures of the Fourteenth Amendment.
60
Affirmed.
61
Justice STEVENS, with whom Justice BLACKMUN joins, dissenting.
62
The practice of holding hostages to coerce another sovereign to change its policies is not new; nor, in my opinion, is it legitimate. California acknowledges that its discrimination against Ohio citizens within its jurisdic tion is specifically intended to coerce the Ohio Legislature into enacting legislation favored by California. Today the Court holds that this state purpose is legitimate. In my opinion that coercive motivation is not an acceptable justification for California's discriminatory treatment of nonresidents.
63
The discrimination disclosed by this record is much more irregular than a simple preference for domestic corporations over foreign corporations. Some foreign insurance companies pay the same tax that domestic companies pay. Those that pay higher taxes than California companies do not all pay the same tax. Thus, for example, California taxes insurance companies incorporated in Ohio at a 2.5% rate, Montana companies at a 2.75% rate, and West Virginia and Idaho companies at a 3% rate.1 The prevailing tax rate in California for domestic companies and most foreign companies is 2.35%.2 Thus the insurance companies competing in the California market are subjected to flagrant discrimination.
64
A desire to eliminate discrimination in other States does not justify the discrimination practiced by California. All insurance companies that do business in Ohio are taxed at the 2.5% rate and all those that compete in the West Virginia market pay the 3% rate. Neither of those States has meddled in California's affairs or taken any action that has a special impact in California. California's justification for its retaliatory tax scheme is simply to apply pressure on other States to lower their tax rates to the level that California considers acceptable. The possibility that different States may have different fiscal needs is a matter of no concern to California.3
65
Furthermore, the discrimination is not justified by any actions taken in California. The State has not pointed to any significant difference in the way different taxpayers conduct their business in California. No administrative problems justify charging residents of some States higher taxes than others. The mere difference in residence is admittedly an insufficient reason for disparate treatment,4 and the incremental tax collected from out-of-state companies is not justified as a revenue measure.5 Thus the retaliatory increment is in the nature of a monetary penalty imposed on foreign citizens to apply pressure to their sovereign. Analytically, pressure of that kind is comparable to ransom.6
66
The Fourteenth Amendment to the United States Constitution provides that no State may "deny to any person within its jurisdiction the equal protection of the laws." The federal interest vindicated by this provision requires every State to respect the individuality and the essential equality of every person subject to its jurisdiction; it forbids disparate treatment that is unrelated to any difference in the character or the behavior of persons subject to the State's jurisdiction. California's disapproval of the official policies of the State of Ohio cannot justify the exaction of special payments from individuals who come from that State, even though such exactions may cause them to plead with their legislature to conform to California's will.7
67
In my opinion the federal interest in the impartial administration of the laws of the several States is unquestionably paramount to any one State's parochial interest in applying pressure to its neighbors by use of "retaliatory" legislation. This discriminatory legislation is not justified by a legitimate purpose and therefore violates the Equal Protection Clause.
68
I respectfully dissent.
1
"When by or pursuant to the laws of any other state or foreign country any taxes, licenses and other fees, in the aggregate, and any fines, penalties, deposit requirements or other material obligations, prohibitions or restrictions are or would be imposed upon California insurers, or upon the agents or representatives of such insurers, which are in excess of such taxes, licenses and other fees, in the aggregate, or which are in excess of the fines, penalties, deposit requirements or other obligations, prohibitions, or restrictions directly imposed upon similar insurers, or upon the agents or representatives of such insurers, of such other state or country under the statutes of this State, so long as such laws of such other state or country continue in force or are so applied, the same taxes, licenses and other fees, in the aggregate, or fines, penalties or deposit requirements or other material obligations, prohibitions, or restrictions, of whatever kind shall be imposed upon the insurers, or upon the agents or representatives of such insurers, of such other state or country doing business or seeking to do business in California. Any tax, license or other fee or other obligation imposed by any city, county, or other political subdivision or agency of such other state or country on California insurers or their agents or representatives shall be deemed to be imposed by such state or country within the meaning of this article." Cal.Ins.Code Ann. § 685 (West 1972).
This provision was enacted in present form in 1959, pursuant to the California Constitution, Art. XIII, § 144/5(f)(3). At that time, the California Constitution permitted imposition of the retaliatory tax only when the other State taxed California insurers at a higher rate than it taxed its own insurers. See Cal.Const., Art. XIII, § 144/5(f)(3) (West Supp.1964). In 1964, however, the California Constitution was amended to permit the imposition of the retaliatory tax whenever the other State's taxes on California insurers are higher than California taxes on similar insurers. Cal.Const., Art. XIII, § 144/5(f)(3) (West Supp.1966). See Franklin Life Ins. Co. v. State Board of Equalization, 63 Cal.2d 222, 225-227, 45 Cal.Rptr. 869, 872-873, 404 P.2d 477, 480-481 (1965).
2
Western & Southern also challenges a provision of California's property tax law, since repealed, which permitted certain domestic insurance companies to credit a greater portion of property tax paid on their principal offices against their premiums tax liability than foreign insurers could credit. Cal.Rev. & Tax.Code Ann. §§ 12241(a) and (b) (West 1970). We need not consider this challenge, because any increase in the property tax deduction would merely trigger an offsetting increase in the retaliatory tax. See App. 86-87.
3
See Cooley v. Board of Wardens, 12 How. 299, 13 L.Ed. 996 (1852); Gibbons v. Ogden, 9 Wheat. 1, 209, 6 L.Ed. 23 (1824).
4
The California courts have described the Kansas retaliatory insurance tax as "substantially identical" to § 685. Atlantic Ins. Co. v. State Board of Equalization, 255 Cal.App.2d 1, 10, 62 Cal.Rptr. 784, 790 (1967), cert. denied and appeal dism'd, 390 U.S. 529, 88 S.Ct. 1208, 20 L.Ed.2d 86 (1968).
5
Western & Southern argues that the instant case is not controlled by Hobbs because the Kansas Supreme Court said in Hobbs : "We are unable to find in the record evidence to support the view that the tax in question upon foreign insurance companies is greater than that levied on the home insurance companies." 160 Kan., at 311, 161 P.2d, at 734. But the principle of Benjamin, applied in Hobbs, was that it was unnecessary for the Court to decide whether the challenged tax was discriminatory, since the McCarran-Ferguson Act simply made the Commerce Clause inapplicable. Thus, Western & Southern's reliance on this purported distinction carries no weight.
6
We reject appellee's argument that the McCarran-Ferguson Act altered constitutional standards other than those derived from the Commerce Clause. The House Report states:
"It is not the intention of Congress in the enactment of this legislation to clothe the States with any power to regulate or tax the business of insurance beyond that which they had been held to possess prior to the decision of the United States Supreme Court in the Southeastern Underwriters Association case. Briefly, your committee is of the opinion that we should provide for the continued regulation and taxation of insurance by the States, subject always, however, to the limitations set out in the controlling decisions of the United States Supreme Court. . . ." H.R.Rep.No.143, 79th Cong., 1st Sess., 3 (1945).
In State Board of Insurance v. Todd Shipyards Corp., 370 U.S. 451, 82 S.Ct. 1380, 8 L.Ed.2d 620 (1962), we said:
"Congress, of course, does not have the final say as to what constitutes due process under the Fourteenth Amendment. And while Congress has authority by § 5 of that Amendment to enforce its provisions [citing cases], the McCarran-Ferguson Act does not purport to do so." Id., at 457, 82 S.Ct., at 1384.
7
Although Western & Southern raises a due process claim in its statement of questions presented, it does not separately address that claim in its brief. We therefore assume that any due process argument is subsumed in the equal protection issue. See Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 470, n. 12, 101 S.Ct. 715, 727, n. 12, 66 L.Ed.2d 659 (1981).
8
Prudential Ins. Co. v. Benjamin, 328 U.S. 408, 66 S.Ct. 1142, 90 L.Ed. 1342 (1946), did not resolve the equal protection issue. The Court stated in reference to the South Carolina tax challenged in that case:
"No conceivable violation of the commerce clause, in letter or spirit, is presented. Nor is contravention of any other limitation." Id., at 436, 66 S.Ct., at 1158.
The appellant in that case, however, challenged the South Carolina tax under the Commerce Clause, id., at 411, 66 S.Ct., at 1145, and nothing in the opinion of the Court suggests that the Court considered or decided any equal protection issue.
9
The Court disposed of plaintiff in error's Commerce Clause argument on the ground that the business of insurance is not commerce. 8 Wall., at 183. See supra, at 653-654.
10
This view of the corporation reflected the common understanding through the first three-quarters of the 19th century. As Justice Brandeis has noted, "at first, the corporate privilege was granted sparingly; and only when the grant seemed necessary in order to procure for the community some specific benefit otherwise unavailable." Louis K. Liggett Co. v. Lee, 288 U.S. 517, 549, 53 S.Ct. 481, 490, 77 L.Ed. 929 (1933) (dissenting opinion). See also 1 W. Fletcher, Cyclopedia of the Law of Private Corporations 5-6 (1974); G. Henderson, The Position of Foreign Corporations in American Constitutional Law 64-68 (1918) (hereafter Henderson).
11
In 1869, the year Paul v. Virginia was decided, the Commonwealth of Virginia did not permit general incorporation of insurance companies. Va.Code of 1860, ch. 65, § 4. Thus, the Court's conception of the corporate franchise in that case as a "grant of special privileges to the corporators," Paul v. Virginia, 8 Wall., at 181, was an accurate portrayal of the corporation as it existed at that time. This was not to last for long. See Act of Mar. 30, 1871, 1870 Va.Acts, ch. 277 (general incorporation law made applicable to insurance companies).
12
As appellee concedes, the theory espoused in Philadelphia Fire Assn. that a foreign corporation is not "a person within [the State's] jurisdiction" within the meaning of the Equal Protection Clause unless it is in compliance with all conditions imposed on its entry is now discarded. See Kentucky Finance Corp. v. Paramount Auto Exchange Corp., 262 U.S. 544, 549-551, 43 S.Ct. 636, 639, 67 L.Ed. 1112 (1923) (holding that a foreign corporation is "within" the State if it files a lawsuit therein); Bethlehem Motors Corp. v. Flynt, 256 U.S. 421, 424, 41 S.Ct. 571, 572, 65 L.Ed. 1029 (1921) (holding that "corporations doing business in a State and having an agent there are within the jurisdiction of the State").
13
Southern R. Co. v. Greene, 216 U.S. 400, 30 S.Ct. 287, 54 L.Ed. 536 (1910); Ludwig v. Western Union Telegraph Co., 216 U.S. 146, 30 S.Ct. 280, 54 L.Ed. 423 (1910); Pullman Co. v. Kansas, 216 U.S. 56, 30 S.Ct. 232, 54 L.Ed. 378 (1910); Western Union Telegraph Co. v. Kansas, 216 U.S. 1, 30 S.Ct. 190, 54 L.Ed. 355 (1910) (Western Union I ).
14
Southern R. Co. relied on two Commerce Clause cases decided earlier in the same Term, in both of which Justice Harlan wrote the plurality opinion. Western Union I, supra, and Pullman Co. v. Kansas, supra, struck down Kansas taxes imposed on the total authorized capital of out-of-state corporations, representing the corporations' property both within and without Kansas. The State defended the taxes on the strength of Paul v. Virginia and like cases, as conditions imposed on the privilege of doing business within the State. The plurality held that a State may not impose unconstitutional conditions on the privilege of doing business within the State. See 216 U.S, at 33-38, 46-48, 30 S.Ct., at 200-202, 205-206; Pullman Co. v. Kansas, supra, at 62-63, 30 S.Ct., at 234-35. Accord, Ludwig v. Western Union Telegraph Co., supra. Since a tax imposed on the out-of-state operations of an interstate company violates the Commerce Clause, see 216 U.S., at 38-45, 30 S.Ct., at 202-205, such a tax may not be imposed as a prerequisite to doing business in the State. The plurality opinion distinguished Paul v. Virginia as involving the business of insurance, which was not considered interstate commerce. 216 U.S., at 33-34, 30 S.Ct., at 200. Although modified in detail, the principle established in these cases still governs Commerce Clause challenges to state privilege taxes. See Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 97 S.Ct. 1076, 51 L.Ed.2d 326 (1977).
Justice Holmes, in dissent in both cases, pointed out that if a State has an "absolute arbitrary power" to exclude foreign corporations, then no conditions imposed on corporations in the exercise of that power could be unconstitutional. 216 U.S., at 54, 30 S.Ct., at 208.
15
Southern R. Co. did not, however, overrule Philadelphia Fire Assn. v. New York and like cases. Although acknowledging the difference in principle between its decision and that in Philadelphia Fire Assn., 216 U.S., at 416, 30 S.Ct., at 290, Southern R. Co. distinguished the earlier case on the ground that the Philadelphia Fire Association, unlike the Southern Railway, held only a one-year license renewable at the State's discretion.
16
This effectively overruled those portions of Baltic Mining Co. v. Massachusetts, 231 U.S. 68, 88, 34 S.Ct. 15, 19, 58 L.Ed. 127 (1913), overruled on other grounds, Alpha Portland Cement Co. v. Massachusetts, 268 U.S. 203, 218, 45 S.Ct. 477, 481, 69 L.Ed. 916 (1925), and Cheny Bros. Co. v. Massachusetts, 246 U.S. 147, 156-158, 38 S.Ct. 295, 297, 62 L.Ed. 632 (1918), that appeared to limit Southern R. Co. to cases in which the foreign corporation held substantial permanent property within the State.
17
Hanover Fire Ins. Co. also held that, with respect to an admission fee charged to the corporation prior to its entry into the State, "the measure of the burden is in the discretion of the State, and any inequality as between the foreign corporation and the domestic corporation in that regard does not come within the inhibition of the Fourteenth Amendment." 272 U.S., at 511, 47 S.Ct., at 183. The opinion makes clear, however, that a tax on the business of the corporation after its admission may not be imposed in the guise of an admission fee. Ibid.
18
The Court in Lincoln National Life Ins. Co. v. Read, erroneously distinguished Hanover Fire Ins. Co. as involving an out-of-state insurance company holding an "unequivocal" license rather than an annual license, renewable only upon satisfaction of the condition precedent of paying the discriminatory tax. 325 U.S., at 676, 65 S.Ct., at 1221. In fact, the Hanover Fire Insurance Co. held only an annual license. 272 U.S., at 509, 47 S.Ct., at 183. The Court in Hanover Fire Ins. Co. explicitly stated that the "principle is the same," no matter whether the license is annual or indefinite. Ibid.
19
The reasoning in Lincoln National Life was virtually identical to that offered by Justice Holmes in his Western Union dissent. See n. 14, supra.
20
The State argued that other States could enact similar provisions, and thereby eliminate any inequality. This Court concluded, however, that "[i]t is hard to see that this offer of reciprocity restores to appellants any of the equality which the application of the Ohio tax, considered alone, so obviously denies." 337 U.S., at 573, 69 S.Ct., at 1297.
21
Justice HARLAN and I, concurring, went still further. Arguing that the Equal Protection Clause must be used as "an instrument of federalism," 358 U.S., at 532, 79 S.Ct., at 443, we rejected the Court's analysis as insufficiently protective of out-of-state interests. We stated that the Equal Protection Clause denies a State "the power constitutionally to discriminate in favor of its own residents against the residents of other state members of our federation." Id., at 533, 79 S.Ct., at 444. Our position has not been adopted by the Court, which has subsequently required no more than a rational basis for discrimination by State against out-of-state interests in the context of equal protection litigation. E. g., Baldwin v. Montana Fish and Game Comm'n, 436 U.S. 371, 388-391, 98 S.Ct. 1852, 1862-1864, 56 L.Ed.2d 354 (1978); Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 810-814, 96 S.Ct. 2488, 2498-2500, 46 L.Ed.2d 36 (1976).
22
Although the retaliatory tax is an imposition on interstate insurance companies, it is supported by the industry as a means of fostering uniform and moderate levels of taxation nationwide. See Brief for the American Insurance Association et al. as Amici Curiae ; Council of State Governments, State Retaliatory Taxation of the Insurance Industry 12 (1977).
23
The nature of the classification supports this conclusion as well. The retaliatory tax is not imposed on foreign corporations qua foreign corporations, as would be expected were the purpose of the tax to raise revenue from noncitizens; rather, it is imposed only on corporations whose home States impose more onerous burdens on California insurers than California otherwise would impose on those corporations.
24
See n. 1, supra.
25
A large part of this decline may be accounted for by the general decline in the States' reliance on business taxes. From 1957 to 1972, the proportion of total state tax revenues attributable to general business taxes fell by 17.7%, while the proportion attributable to life insurance premiums taxes fell by 20.0%. Bodily, The Effects of Retaliation on the State Taxation of Life Insurers, 44 J. of Risk & Ins. 21, 31-32 (1977). But see State Department of Finance, Budget Div., Highlights of Proposal for Quarterly Insurance Tax Payments 3-4 (1963) (showing that since 1950, the proportion of California tax revenues attributable to insurance taxes has decreased substantially relative to that attributable to bank and corporate taxes).
1
See Cal.Ins.Code Ann. § 685 (West 1972); Idaho Code § 41-402 (1977); Ohio Rev.Code Ann. § 5729.03 (1973); Mont.Code Ann. § 33-2-705 (1979); W.Va.Code §§ 33-3-14 and 33-3-14a (Supp.1980). As the Court's opinion indicates, ante, at 651, the amount of retaliatory taxes reflected by these small percentage differences is significant.
2
Cal.Rev. & Tax.Code Ann. §§ 12201, 12202 (West 1970).
3
The United States, as amicus curiae, takes the position that California has no legitimate interest in Ohio's level of taxation or fiscal structure when no discriminatory action against California citizens or corporations is involved. It states:
"The several states have different resources, populations, social and economic conditions, levels of public service, fiscal structures, methods and sources of raising revenue, and tax burdens, both in gross and per capita. With respect to other states, where no discriminatory or hostile action is involved, the states are largely autonomous in these matters. And even if another state has engaged in discriminatory action, the Constitution, as this Court has pointed out, does not contemplate the economic warfare of reprisal and retaliation. A&P Tea Co. v. Cottrell, 424 U.S. 366, 96 S.Ct. 923, 47 L.Ed.2d 55 (1976)." Brief for United States as Amicus Curiae 10.
4
As the Court states:
"We consider it now established that, whatever the extent of a State's authority to exclude foreign corporations from doing business within its boundaries, that authority does not justify imposition of more onerous taxes or other burdens on foreign corporations than those imposed on domestic corporations, unless the discrimination between foreign and domestic corporations bears a rational relation to a legitimate state purpose." Ante, at 667-668.
See also Wheeling Steel Corp. v. Glander, 337 U.S. 562, 572, 69 S.Ct. 1291, 1296, 93 L.Ed. 1544:
"It seems obvious that appellants are not accorded equal treatment, and the inequality is not because of the slightest difference in Ohio's relation to the decisive transaction, but solely because of the different residence of the owner."
5
"[I]t is clear that the purpose is not to generate revenue at the expense of out-of-state insurers, but to apply pressure on other States to maintain low taxes on California insurers." See ante, at 669-670.
6
California's objective is to confer a limited benefit on a limited group of companies that are incorporated under its laws. This case involves the special interest of insurance companies in paying taxes at a rate no higher than the rate California requires for its budgetary purposes. The next case may involve a different industry with a different special interest. Thus, for example, the trucking industry or the motorcoach industry might favor high speed limits, loose safety inspection laws, and lax emission standards. If their lobbyists could persuade the legislature of a powerful State to adopt rules favorable to their interests, then under today's holding they may also seek retaliatory programs that would apply pressure to neighboring States to adopt similar rules. Although such a statute might violate other constitutional provisions, such as the Commerce Clause, under today's holding the Equal Protection Clause would present no impediment.
7
In holding that California's purpose in enacting the discriminatory tax is legitimate, the Court compares this case to state attempts to maintain the profit level of a domestic industry, Parker v. Brown, 317 U.S. 341, 363-367, 63 S.Ct. 307, 319-321, 87 L.Ed. 315 and efforts to "protect and enhance the reputation" of a domestic industry, enabling it to compete more effectively in the interstate market. Pike v. Bruce Church, Inc., 397 U.S. 137, 143, 90 S.Ct. 844, 847, 25 L.Ed.2d 174. The enactment of a statute designed to confer a direct benefit or to provide protection for domestic corporations is surely not comparable to California's imposition of a burden on foreign corporations designed to coerce foreign States to enact legislation which will benefit California corporations at the expense of the interest which motivated the foreign State's original tax rate.
| 78
|
451 U.S. 772
101 S.Ct. 2142
68 L.Ed.2d 612
ST. MARTIN EVANGELICAL LUTHERAN CHURCH and Northwestern Lutheran Academy, Petitioners,v.State of SOUTH DAKOTA.
No. 80-120.
Argued March 3, 1981.
Decided May 26, 1981.
Syllabus
Petitioner Church, located in South Dakota, is a member of the Wisconsin Evangelical Lutheran Synod. It operates an elementary Christian day school that is not a separate legal entity from the Church, but is financed by the Church's congregation and controlled by a Board elected from the congregation. Petitioner Academy is a secondary school in South Dakota owned, supported, and controlled by the Synod, and it also is not separately incorporated. Petitioners claim exemption with respect to their school employees from unemployment compensation taxes imposed by the Federal Unemployment Tax Act (FUTA) and South Dakota's complementary statute. Title 26 U.S.C. § 3309(b) provides an exemption with respect to, inter alia, "service performed—(1) in the employ of (A) a church or convention or association of churches, or (B) an organization . . . which is operated, supervised, controlled, or principally supported by a church or a convention or association of churches." A previous exemption under § 3309(b)(3) for service performed in the employ of a school that is not an institution of higher education was repealed in 1976 when FUTA was amended. After petitioners' unsuccessful administrative appeal from South Dakota's imposition of the taxes upon them and a successful appeal to a state court, the South Dakota Supreme Court held petitioners subject to the taxes.
Held : Petitioners are exempt from unemployment compensation taxes under § 3309(b)(1)(A). Pp. 780-788.
(a) Section 3309(b)(1)(A), as enacted in 1970, applies to schools, like petitioners', that have no separate legal existence from a church, or as in the Academy's case, from a "convention or association of churches." The employees working within these schools plainly are "in the employ of . . . a church or convention or association of churches" within the meaning of § 3309(b)(1)(A). And instead of construing the term "church" in § 3309(b) as being limited to the actual house of worship, a construction that would contradict the phrasing of FUTA, such term must be construed as referring to the congregation or the hierarchy itself, that is, the church authorities who conduct the business of hiring, discharging, and directing church employees. Pp. 781-785. (b) The legislative history, including the repeal of § 3309(b)(3), discloses no intent by Congress to alter the scope or meaning of § 3309(b)(1). Pp. 785-788.
S.D., 290 N.W.2d 845, reversed and remanded.
E. Thomas Schilling, Washington, D. C., for petitioners.
Allen R. Snyder, Washington, D. C., for the States of Alabama and Nevada, as amici curiae, by special leave of Court.
Mark V. Meierhenry, Pierre, S. D., for respondent.
Barry Sullivan, Washington, D. C., for United States, as amicus curiae, by special leave of Court.
Justice BLACKMUN delivered the opinion of the Court.
1
Petitioners, St. Martin Evangelical Lutheran Church (St. Martin), at Watertown, S.D., and Northwestern Lutheran Academy (Academy), at Mobridge in that State, claim exemption with respect to their school employees from taxes imposed by the Federal Unemployment Tax Act (FUTA), 26 U.S.C. §§ 3301-3311 (1976 ed. and Supp.III), and by South Dakota's statutes complementary thereto, S.D. Codified Laws § 61-1-1 et seq. (1978 and Supp.1980). The exemption is claimed on both statutory and First Amendment grounds. The provisions primarily at issue are FUTA's § 3309(b)1 and South Dakota's § 61-1-10.4.2
2
* A.
3
FUTA appeared originally as Title IX of the Social Security Act of 1935, 49 Stat. 639, and was enacted in response to the widespread unemployment that accompanied the Great Depression. It called for a cooperative federal-state program of benefits to unemployed workers.3 The Act has undergone a series of amendments that progressively have expanded coverage of the Nation's work force.4
4
This case concerns one of the more recent of those amendments, namely, that effected by § 115(b)(1) of the Unemployment Compensation Amendments of 1976, Pub.L. 94-566, 90 Stat. 2670. The Secretary of Labor has determined that this statute rendered nonprofit church-related primary and secondary schools subject to FUTA. The South Dakota authorities went along with that ruling in their interpretation of the State's amended statute. Petitioners are among those religiously affiliated schools so claimed to be required to pay the FUTA and South Dakota taxes. They contest this construction of the statutes. They argue also, however, that holding them subject to the taxes would violate both the Free Exercise Clause and the Establishment Clause of the First Amendment.
B
5
Proper understanding of the effect of the 1976 amendment requires a review of FUTA's development. From 1960 to 1970, FUTA, by § 3306(c)(8), unrestrictedly excluded from the definition of "employment" all "service performed in the employ of a religious, charitable, educational, or other organization described in section 501(c)(3) which is exempt from income tax under section 501(a)." Pub.L. 86-778, § 533, 74 Stat. 984.5 Under this definition, nonprofit church-related schools, of course, were exempt from the tax. A 1970 amendment, however, served to narrow that broad exemption of nonprofit organizations.6 See Employment Security Amendments of 1970, Pub.L. 91-373, § 104(b)(1), 84 Stat. 697. The amendment generally required state coverage of employees of nonprofit organizations, state hospitals, and institutions of higher education. Simultaneously, however, Congress enacted a new and narrower exemption of nonprofit organizations and governmental entities. So far as pertinent to this case, that exemption was set forth in a new § 3309(b), which then provided:
6
"This section shall not apply to service performed—
7
"(1) in the employ of (A) a church or convention or association of churches, or (B) an organization which is operated primarily for religious purposes and which is operated, supervised, controlled, or principally supported by a church or convention or association of churches;
8
"(2) by a duly ordained commissioned, or licensed minister of a church in the exercise of his ministry or by a member of a religious order in the exercise of duties required by such order;
9
"(3) in the employ of a school which is not an institution of higher education . . . ."
10
No one, including the Secretary of Labor, disputes that church-run elementary and secondary schools remained exempt under this new § 3309(b).
11
In 1976, Congress again amended the Act. Unemployment Compensation Amendments of 1976, Pub.L. 94-566, § 115(b)(1), 90 Stat. 2670. The effect of the 1976 amendment, so far as pertinent to this case, was to eliminate completely the theretofore existing subsection (b)(3).7 Subsections (b)(1) and (b)(2), dealing specifically with religious employment, remained unchanged.8
12
In 1978, the Secretary of Labor announced, in a letter made public, that the 1976 repeal of § 3309(b)(3) of FUTA was
13
"clearly intended to result in State coverage of church-related schools, whose employees constitute over 80 percent of the employees of all nonprofit schools. In light of the repeal of 3309(b)(3), we think the only services performed in the schools that may reasonably be considered within the scope of the exclusion permitted by 3309(b)(1) are those strictly church duties performed by church employees pursuant to their religious responsibilities within the schools." Letter dated April 18, 1978, of Secretary Marshall to the Most Reverend Thomas C. Kelley, O. P., General Secretary, United States Catholic Conference.
14
The Secretary also ruled that neither § 3309(b)(1)(A) nor § 3309(b)(1)(B) was applicable to church-run schools. He notified the States, and they took steps for the collection of unemployment taxes from church-related schools. See Employment and Training Administration, U.S. Department of Labor, Unemployment Insurance Program Letter No. 39-78 (May 30, 1978), reprinted in [1978 Transfer Binder] CCH Unemp.Ins.Rep. ¶ 21,522.
II
15
Both St. Martin and the Academy are members of the Wisconsin Evangelical Lutheran Synod and, as such, are organizations exempt from federal income tax under 26 U.S.C. § 501(c)(3). St. Martin operates a state-certified elementary Christian day school at Watertown that offers kindergarten through eighth-grade education. The school, which is not a separate legal entity from the church, is controlled by a Board of Education elected from the local congregation. The congregation entirely finances the school's operation. The Academy is a state-certified 4-year secondary school at Mobridge and is owned, supported, and controlled by the Synod. It, also, is not separately incorporated. Approximately half of its students go on to become ministers within the Church. According to the record, all courses given at St. Martin and at the Academy are taught from a religious point of view based on the Synod's scriptural convictions.
16
When South Dakota proposed to tax them under § 61-1-10.3, petitioners took an administrative appeal. The Appeals Referee of the State's Department of Labor—Unemployment Insurance Division ruled that service performed by employees of each petitioner was "employment" within the meaning of the statute. Although finding that the Synod "believes a theological basis exists for their schools" and operates them because it "holds the conviction that training of the youth involves both education and religion and that the two are so closely interwoven they cannot be separated," App. to Pet. for Cert. A-36, the Referee declined to rule that petitioners were exempt under § 61-1-10.4, the state analogue to 26 U.S.C. § 3309(b). See nn. 1 and 2, supra. He ruled that petitioners were not eligible for exemption under § 61-1-10.4(1)(a) because, in his view, the term "church," as used in that section referred only to the "individual 'house of worship' maintained by a particular congregation." App. to Pet. for Cert. A-43. He also ruled, ibid., that they were ineligible for exemption under § 61-1-10.4(1)(b) because "the primary purpose of the schools is education."
17
On appeal, the Hughes County Circuit Court reversed, finding the Referee's decision clearly erroneous. App. to Pet. for Cert. A-25. The court ruled that both St. Martin and the Academy were exempt under § 61-1-10.4(1)(b); that the term "church" referred to "an organization of worshippers," rather than to a "house of worship"; and that the primary purpose of the schools was the propagation of the Synod's faith, a religious concern. App. to Pet. for Cert. A-30 to A-33. The South Dakota Supreme Court, by a divided vote, in turn reversed the judgment of the Circuit Court, and held petitioners subject to the unemployment compensation taxes.9 In re Northwestern Lutheran Academy, 290 N.W.2d 845 (1980). Noting the growing number of conflicting federal and state decisions on this issue,10 we granted certiorari. 449 U.S. 950, 101 S.Ct. 353, 66 L.Ed.2d 214 (1980).
III
18
A statute, of course, is to be construed, if such a construction is fairly possible, to avoid raising doubts of its constitutionality. Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 296, 76 L.Ed. 598 (1932); Machinists v. Street, 367 U.S. 740, 749-750, 81 S.Ct. 1784, 1789-90, 6 L.Ed.2d 1141 (1961); United States v. Clark, 445 U.S. 23, 27, 100 S.Ct. 895, 899, 63 L.Ed.2d 171 (1980). Accordingly, we turn first to the federal statute itself. From our reading of the legislation and of its history, we conclude that the only reasonable construction of 26 U.S.C. § 3309(b)(1) is one that exempts petitioners' church-run schools, and others similarly operated, from mandatory state coverage.
A.
19
Section 3309 was added to FUTA in 1970. Although the legislative history directly discussing the intended coverage of its subsection (b)(1) is limited,11 the House Report had the following explanation:
20
"This paragraph excludes services of persons where the employer is a church or convention or association of churches, but does not exclude certain services performed for an organization which may be religious in orientation unless it is operated primarily for religious purposes and is operated, supervised, controlled, or principally supported by a church (or convention or association of churches). Thus, the services of the janitor of a church would be excluded, but services of a janitor for a separately incorporated college, although it may be church related, would be covered. A college devoted primarily to preparing students for the ministry would be exempt, as would a novitiate or a house of study training candidates to become members of religious orders. On the other hand, a church related (separately incorporated) charitable organization (such as, for example, an orphanage or a home for the aged) would not be considered under this paragraph to be operated primarily for religious purposes." H.R.Rep. No. 91-612, p. 44 (1969).
21
The Senate Report contained identical language. See S.Rep. No. 91-752, pp. 48-49 (1970).
22
Respondent would read this discussion, as the South Dakota Supreme Court majority did, to mean that Congress in 1970 intended to bring within mandatory state coverage all institutions of higher education, including those with no separate legal existence from the church or churches that operate them, except for the narrow category of seminaries and novitiates. From this, respondent extrapolates that Congress intended § 3309(b)(1) to be read very narrowly, and that the later 94th Congress, in 1976, similarly intended to include within mandatory state coverage all primary and secondary educational institutions, including those entirely within the internal structure of churches.
23
The above quotation from the 1969 House Report, and its Senate counterpart, however, are susceptible of a simpler and more reasonable explanation that corresponds directly with the language of the subsection. Congress drew a distinction between employees "of a church or convention or association of churches," § 3309(b)(1)(A), on the one hand, and employees of "separately incorporated" organizations, on the other. See H.R.Rep. No. 91-612, at 44. The former uniformly would be excluded from coverage by § 3309(b)(1)(A), while the latter would be eligible for exclusion under § 3309(b)(1)(B) only when the organization is "operated, supervised, controlled, or principally supported by a church or convention or association of churches."12 To hold, as respondent would have us do, that "organization" in subsection (b)(1)(B) also includes a church school that is not separately incorporated would make (b)(1)(A) and (b)(1)(B) redundant.
24
The distinction between church schools integrated into a church's structure, and those separately incorporated, is given further credence by the statute's use of specific words. The Department of Labor would interpret the term "church" in § 3309(b)(1) as limited to the actual house of worship used by a congregation. See Brief for United States as Amicus Curiae 14-15.13 This reading, however, appears to us to deny several of FUTA's phrases their intended meaning. Section 3309(b), exempting "service performed—(1) in the employ of (A) a church . . .," is phrased entirely in terms of the nature of theemployer, and not in terms of the work performed or the place at which the employee works. Congress further defined "employer" in § 3306(a) as "any person who—. . . paid wages . . . or . . . employed at least one individual" (emphasis added). It defined "employee" as "any individual who, under the usual common law rules applicable in determining the employer-employee relationship, has the status of an employee." §§ 3306(i) and 3121(d)(2). Thus, to hold "church" synonymous solely with a physical building that is a house of worship contradicts the phrasing of the statute.14 The word "church" in § 3309(b) must be construed, instead, to refer to the congregation or the hierarchy itself, that is, the church authorities who conduct the business of hiring, discharging, and directing church employees.15
25
We conclude that, at the time of its enactment in 1970, § 3309(b)(1)(A) was meant to apply to schools, like petitioners', that have no separate legal existence from a church, or, as in the Academy's case, from a "convention or association of churches." As the Referee found, St. Martin directly finances, supervises, and controls its school's operations. The Synod similarly supports and controls the Academy. Only teachers trained and certified by the Synod may teach at either school, and, again as the Referee found, these teachers, both male and female, "receive a divine, life-long call" to the church. App. to Pet. for Cert. A-38. Male teachers ("teaching ministers") have equal status in the church and an equal vote on Synod matters, including matters of doctrine, with preaching ministers. Id., at A-37. Neither school has a separate legal existence. Thus, the employees working within these schools plainly are "in the employ . . . of a church or convention or association of churches . . . ."16 § 3309(b)(1)(A).
B
26
The 1976 Amendments did not alter the scope of § 3309(b)(1), either directly or by implication.17 Congress, in eliminating the old § 3309(b)(3), made no change in § 3309(b)(1). It did not discuss churches or church schools, and it intimated that § 3309(b)(1) remained unchanged. See, e. g., H.R.Rep. No. 94-755, pp. 23, 41, 55-56 (1975) (explaining the then-current coverage of § 3309(b) and the anticipated effect of the repeal, and containing no indication that the proposed amendments would alter § 3309(b)(1)).
27
Respondent places particular emphasis on legislative statements expressing an intention, for example, to extend coverage "on the basis of services performed for all educational institutions," H.R.Rep. No. 94-755, at 56,18 and to "employees of non-profit elementary and secondary schools," id., at 2. See also id., at 41 ("This section requires States, as a condition for tax offset credit to their employers, to extend coverage to employees of non-profit primary and secondary institutions of education, thus broadening present required coverage limited to non-profit institutions of higher education"); S.Rep. No. 94-1265, pp. 2, 9-10 (1976), U.S.Code Cong. & Admin.News 1976, p. 5997.
28
These references are simply too general and too ambiguous to bear the weight respondent would assign to them.19 There is no indication that Congress, in these references, had in mind the scope of § 3309(b)(1) and religious organizations. Rather, all the evidence demonstrates that it was concerned solely with the then-existing § 3309(b)(3) and secular educational institutions, particularly the public schools. Furthermore, the reported comments implying total coverage of all educational institutions, as a result of the repeal of the former § 3309(b)(3), could not be taken as literally true because the 1970 Report expressly had noted that a college "devoted primarily to preparing students for the ministry," H.R.Rep. No. 91-612, at 44, would be exempt. All institutions of higher education had not been covered by the 1970 Amendments.
29
Respondent also relies on a single statistic estimating the number of employees newly to be covered as a result of the repeal of the then § 3309(b)(3). See S.Rep. No. 94-1265, at 8 (table). This statistical reference to the effect that 242,000 employees of nonprofit organizations would be covered by the 1976 repeal of subsection (b)(3), is much too meager to sustain respondent's position. The Committee Report's table containing this figure is devoid of any explanation, source, or supporting data. The South Dakota Supreme Court relied on the figure, however, reasoning that because it "approximates the total number of teachers in all non-profit elementary and secondary schools" in 1975,20 290 N.W.2d, at 849, and n. 5, Congress must have included within that number religious-school teachers, who constitute more than half the staff of all private elementary and secondary schools in the United States. Yet, in repealing § 3309(b)(3), Congress intended to include not just full-time teachers, but all employees of the newly covered nonprofit private elementary and secondary schools (custodians, cafeteria workers, nurses, part-time help, counselors, etc.). Thus, the inclusion of all employees in nonprofit private lower schools within the number of persons brought within FUTA by the repeal would far exceed the 242,000 contained in the Report's table, rendering it, in our view, of dubious significance for the present issue.
30
This legislative history does not reveal any clear intent to repeal § 3309(b)(1) or to alter its meaning. The Court has had frequent occasion to note that such indefinite congressional expressions cannot negate plain statutory language and cannot work a repeal or amendment by implication. "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, 417 U.S. 535, 550, 94 S.Ct. 2474, 2482, 41 L.Ed.2d 290 (1974); see also Watt v. Alaska, 451 U.S. 259, 101 S.Ct. 1673, 68 L.Ed.2d 80; TVA v. Hill, 437 U.S. 153, 189-190, 98 S.Ct. 2279, 2299, 57 L.Ed.2d 117 (1978); FTC v. A. P. W. Paper Co., 328 U.S. 193, 202-203, 66 S.Ct. 932, 936-37, 90 L.Ed. 1165 (1946); Posadas v. National City Bank, 296 U.S. 497, 503-505, 56 S.Ct. 349, 352-53, 80 L.Ed. 351 (1936); United States v. Noce, 268 U.S. 613, 618-619, 45 S.Ct. 610, 611-12, 69 L.Ed. 1116 (1925); United States v. Greathouse, 166 U.S. 601, 605, 17 S.Ct. 701, 703, 41 L.Ed. 1130 (1897). This long-established canon of construction carries special weight when an implied repeal or amendment might raise constitutional questions. See NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 99 S.Ct. 1313, 59 L.Ed.2d 533 (1979). We therefore hold that the repeal of § 3309(b)(3) did not alter the meaning of § 3309(b)(1). Petitioners are eligible for exemption under subsection (b)(1)(A) by virtue of the nature of their relationship to the church bodies that employ them.
31
This makes it unnecessary for us to consider the First Amendment issues raised by petitioners.
32
The judgment of the Supreme Court of South Dakota is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion.
33
It is so ordered.
34
Justice STEVENS, concurring in the judgment.
35
The legislative history of the Unemployment Compensation Amendments of 1976, 90 Stat. 2667, persuades me that Congress did intend the repeal of 26 U.S.C. § 3309(b)(3) to remove the exemption from coverage under the Federal Unemployment Tax Act (FUTA) for all employees of private, nonprofit elementary and secondary schools. Not only do the Senate and House Committee Reports expressly so state,1 but also the estimate contained in the Senate Report of the number of additional employees that would be covered by the FUTA as a result of the repeal of § 3309(b)(3) confirms the contemporaneous understanding of the draftsmen of the 1976 Amendments.2 Nothing in the 1976 Amendments or the corresponding legislative history suggests that Congress believed the extension of FUTA coverage to nonprofit, private schools applied only to nonprofit, private, nonparochial schools.3
36
Despite this legislative history, I agree with the Court's conclusion that FUTA coverage does not extend to persons employed in petitioners' schools. Although Congress' intention to cover such employees was, in my judgment, clear, the 1976 Amendments simply failed to give effect to that intention. By repealing § 3309(b)(3), Congress removed only one of the two statutory exemptions that, by their terms, applied to employees of parochial elementary and secondary schools. Congress left in place and did not qualify the scope of the separate exemption granted by § 3309(b)(1). The clear expressions of congressional intent that appear in the legislative history of the Act that repealed § 3309(b)(3) cannot alter the clear statutory language of § 3309(b)(1). I agree with the Court that these church employees are exempt under the plain language of that provision. See also Alabama v. Marshall, 626 F.2d 366 (CA5 1980), cert. pending, No. 80-922.
37
When the Court is confronted with the task of construing legislation of this character, there is special force to the rule that the plain statutory language should control and that resort to legislative history is appropriate only when the statute itself is ambiguous. Congress has a special duty to choose its words carefully when it is drafting technical and complex laws; we facilitate our work as well as that of Congress when we adhere closely to the statutory text in cases like this.4 Failure to follow that approach led this Court into what I regard as manifest error in its recent summary, per curiam affirmance in HCSC-Laundry v. United States, 450 U.S. 1, 101 S.Ct. 836, 67 L.Ed.2d 1 a case in which the taxpayer's claim for exemption had equally strong support in the statutory text and, in my opinion, greater support in the legislative history than is true here. See id., at 19-23, 101 S.Ct., at 845-847 (STEVENS, J., dissenting). Today, although I agree that the Court reaches the result required by the text of the FUTA, I write this separate statement to emphasize that this result is not supported by the legislative history of the 1976 Amendments, nor is it consistent with the Court's contrary resolution of the parallel tax exemption issue in HCSC-Laundry.
38
Accordingly, I concur in the Court's judgment.
1
Title 26 U.S.C. § 3309(b) reads in pertinent part:
"This section shall not apply to service performed—
"(1) in the employ of (A) a church or convention or association of churches, or (B) an organization which is operated primarily for religious purposes and which is operated, supervised, controlled, or principally supported by a church or convention or association of churches;
"(2) by a duly ordained, commissioned, or licensed minister of a church in the exercise of his ministry or by a member of a religious order in the exercise of duties required by such order. . . ."
2
This South Dakota statute provides:
"For the purposes of §§ 61-1-10.2 and 61-1-10.3 the term 'employment' does not apply to service performed:
"(1) In the employ of
"(a) a church or convention or association of churches, or
"(b) an organization which is operated primarily for religious purposes and which is operated, supervised, controlled, or principally supported by a church or convention or association of churches; or
"(2) By a duly ordained, commissioned, or licensed minister of a church in the exercise of his ministry or by a member of a religious order in the exercise of duties required by such order; or
"(3) In the employ of a school which is not an institution of higher education prior to January 1, 1978. . . ."
3
FUTA imposes an excise tax on "wages" paid by an "employer" in covered "employment," 26 U.S.C. § 3301, as these terms are statutorily defined. § 3306 (1976 ed. and Supp.III). An employer, however, is allowed a credit of up to 90% of the federal tax for "contributions" paid to a state fund established under a federally approved state unemployment compensation law. § 3302 (1976 ed. and Supp.III). The requirements for federal approval are contained in §§ 3304 and 3309 (1976 ed. and Supp.III), and the Secretary of Labor must annually review and certify the state plan. §§ 3304(a) and (c) (1976 ed. and Supp.III). All 50 States have employment security laws implementing the federal mandatory minimum standards of coverage. A State, of course, is free to expand its coverage beyond the federal minimum without jeopardizing its federal certification.
4
In response to each federal amendment, the States correspondingly have amended their statutes to retain their federal certifications.
5
From and after the effective date of the Internal Revenue Code of 1954 and until 1960, § 3306(c)(8) related the exclusion to "service performed in the employ of a corporation, community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes, or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual, and no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation." 68A Stat. 450.
6
Inasmuch as the definition of "employment" in § 3306(c)(8) continued to exclude service performed in the employ of an organization exempt from federal income tax under § 501(c)(3), the 1970 amendment did not itself serve to impose a federal excise tax on nonprofit organizations. The amendment, however, as a condition for federal certification, required state statutes to cover employees of certain organizations of that type. § 3309(a)(1)(A). Any covered nonprofit organization must be given the option of either making regular payments to the state unemployment fund or reimbursing the fund for benefits paid out to the organization's employees. § 3309(a)(2). South Dakota amended its unemployment statutes accordingly. See 1971 S.D.Laws, ch. 276 (now codified, as further amended, as S.D. Codified Laws § 61-1-1 et seq. (1978 and Supp.1980)).
7
In place of subsection (b)(3), Congress substituted a new and unrelated subsection (b)(3) that concerns the exemption of certain service in the employ of governmental entities. We continue herein to refer to the repealed subsection as "§ 3309(b)(3)" or "(b)(3)."
8
Following the 1976 amendment, South Dakota effected corresponding amendments of its unemployment compensation statutes. See 1977 S.D. Laws, ch. 420, §§ 9, 10, and 11 (codified as S.D. Codified Laws §§ 61-1-10.3 and 61-1-10.4 (1978)). Petitioners were ruled to be liable for state taxes under these provisions.
9
The South Dakota Supreme Court's analysis depended entirely on its understanding of the meaning of FUTA and the First Amendment, and did not rest on any independent and adequate state ground. We therefore are at liberty to review this judgment, although literally, it concerns the construction of a state statute. While the South Dakota courts remain free to construe the State's own law differently, they deserve to be made aware of the proper and, here, significant interpretation of the intertwined federal law. See, e. g., Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 566-568, 97 S.Ct. 2849, 2852-53, 53 L.Ed.2d 965 (1977); United Air Lines, Inc. v. Mahin, 410 U.S. 623, 630-631, 93 S.Ct. 1186, 1191, 35 L.Ed.2d 545 (1973); State Tax Comm'n v. Van Cott, 306 U.S. 511, 514-515, 59 S.Ct. 605, 606-07, 83 L.Ed. 950 (1939).
10
Most other courts that have addressed this general issue have ruled in favor of church-related schools. See, e. g., Alabama v. Marshall, 626 F.2d 366 (CA5 1980), cert. pending No. 80-922; Lutheran Church-Missouri Synod v. Bowling, 89 Ill.App.3d 100, 44 Ill.Dec. 404, 411 N.E.2d 526 (1980); Roman Catholic Church of the Archdiocese of New Orleans v. State, 387 So.2d 1248 (La.App.1980); Sant Bani Ashram, Inc. v. New Hampshire Department of Employment Security, N.H., 426 A.2d 34 (1981); Begley v. Employment Security Comm'n, --- N.C.App. ---, 274 S.E.2d 370 (1981); Grace Lutheran Church v. North Dakota Employment Security Bureau, 294 N.W.2d 767 (N.D.1980); Employment Division v. Archdiocese of Portland, 42 Or.App. 421, 600 P.2d 926 (1979); Christian School Assn. v. Commonwealth, --- Pa.Cmwlth. ---, 423 A.2d 1340 (1980). But see Ascension Lutheran Church v. Employment Security Comm'n, 501 F.Supp. 843 (WDNC 1980).
11
On the Senate floor, Senator Long, introducing the bill that became the 1970 Amendments, merely explained:
"The bill does not require extension of coverage to all jobs in nonprofit organizations. . . . [C]overage would not have to be extended to the employees of a church or religious organization, to clergymen or members of religious orders [or] to elementary and secondary schools. . . ." 116 Cong.Rec. 10575, (1970).
Subsection (b)(1) was not specifically mentioned in the debates.
12
The importance of this distinction, and of giving meaning to both (A) and (B), is heightened by the great diversity in church structure and organization among religious groups in this country. See 1 A. Stokes, Church and State in the United States 720-883 (1950); Whelan, "Church" in the Internal Revenue Code: the Definitional Problems, 45 Ford.L.Rev. 885 (1977). This diversity makes it impossible, as Congress perceived, to lay down a single rule to govern all church-related organizations. Our holding today concerns only schools that have no legal identity separate from a church. To establish exemption from FUTA, a separately incorporated church school (or other organization) must satisfy the requirements of § 3309(b)(1)(B): (1) that the organization "is operated primarily for religious purposes," and (2) that it is "operated, supervised, controlled, or principally supported by a church or convention or association of churches."
Because we hold petitioners exempt under § 3309(b)(1)(A), we leave the issue of coverage under § 3309(b)(1)(B) for the future.
13
The United States strongly urges this construction, noting that the Department of Labor consistently has advanced this meaning of "church" since the 1970 enactment. See U.S. Department of Labor, Draft Legislation to Implement the Employment Security Amendments of 1970, pp. 27-28. The amount of deference due an administrative agency's interpretation of a statute, however, "will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control." Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 L.Ed. 124 (1944). Carefully considering the merits of the Secretary's interpretation, we believe it does not warrant deference.
14
Congress knew how to limit expressly an exemption to the place of employment or the type of work performed. See § 3309(b)(3) ("if such service is performed by an individual in the exercise of his duties"); § 3309(b)(4) (service performed "in a facility"); § 3309(b)(5) (service performed "as part of an unemployment work-relief or work-training program").
15
Although we hold today that the word "church" in § 3309(b) must be considered as the "employer," and not as a building that is a house of worship, we disavow any intimations in this case defining or limiting what constitutes a church under FUTA or under any other provision of the Internal Revenue Code. Cf. Riker v. Commissioner, 244 F.2d 220 (CA9), cert. denied, 355 U.S. 839, 78 S.Ct. 50, 2 L.Ed.2d 51 (1957); Chapman v. Commissioner, 48 T.C. 358 (1967); American Guidance Foundation, Inc. v. United States, 490 F.Supp. 304 (DC 1980); De La Salle Institute v. United States, 195 F.Supp. 891 (ND Cal. 1961).
16
That church schools like those of the petitioners were eligible in 1970 for multiple exemptions under overlapping and equally precise parts of § 3309 is not remarkable. This was true, for example, for most clergy. See §§ 3309(b)(1) and 3309(b)(2). Clergy who teach in church-run primary or secondary schools continue to be exempt under two provisions. The deletion of only one of these clear, specific, and contemporaneous exemptions cannot, without evidence of legislative intent, effect repeal of the other or alter its plain meaning. Cf. HCSC-Laundry v. United States, 450 U.S. 1, 101 S.Ct. 836, 67 L.Ed.2d 1 (1981) (newly enacted, more precise exemption held to prevail over earlier, more general exemption on the basis of detailed evidence of legislative intent).
17
The United States argues that Congress must have intended, by the 1976 Amendments, to include church-related school employees within mandatory state coverage because the 1976 Amendments were passed, in part, to replace the temporary Special Unemployment Assistance program (established under the Emergency Jobs and Unemployment Assistance Act of 1974, 88 Stat. 1845), which provided benefits to practically all workers not then covered under the permanent FUTA provisions, including employees of church schools. Brief for United States as Amicus Curiae 8-10. That special program, however, was funded entirely with federal money, without any employer contribution, and the 1976 Amendments did not attempt entirely to duplicate its coverage; indeed, those Amendments established new, precise exemptions for a narrow group. See 26 U.S.C. § 3309(b)(3) (the new provision exempting certain government employees); 122 Cong.Rec. 33274-33276 (1976) (remarks of Sen. Nelson); id., at 33277-33278 (remarks of Sen. Williams).
18
This comment reads in full:
"Section 115(b) also has the effect of requiring the State to pay unemployment compensation on the basis of services performed for all educational institutions. Under existing law, the State is only required to provide coverage of services performed for institutions of higher education."
19
The United States also relies on Congress' expressed intention to cover "substantially all of the nation's wage and salary earners," H.R.Rep. No. 94-755, at 1, and "to provide equal treatment of all the nation's wage and salary workers under the permanent unemployment compensation law." Id., at 2. Such general statements of overall purpose contained in legislative reports cannot defeat the specific and clear wording of a statute. Helvering v. City Bank Co., 296 U.S. 85, 89, 56 S.Ct. 70, 72, 80 L.Ed. 62 (1935); Caminetti v. United States, 242 U.S. 470, 490, 37 S.Ct. 192, 196, 61 L.Ed. 442 (1917). Cf. Gooch v. United States, 297 U.S. 124, 128, 56 S.Ct. 395, 397, 80 L.Ed. 522 (1936).
20
The court noted that census figures for 1975 showed 261,000 full-time teachers in nonprofit elementary and secondary schools, of which 150,000 were in Roman Catholic schools. Cf. Bureau of the Census, Statistical Abstract of the United States 155 (1980) (reporting that in 1976 there were 268,908 teachers in such schools and that, of these, 206,577 were in schools with a "church affiliation").
1
The House Report states:
"Section 115(b) also has the effect of requiring the State to pay unemployment compensation on the basis of services performed for all educational institutions. Under existing law, the State is only required to provide coverage of services, performed for institutions of higher education." H.R.Rep. No. 94-755, p. 56 (1975).
See also id., at 2, 6, 41. Similarly, the Senate Report provides:
"The bill would require the States to extend the coverage of their unemployment compensation programs to employees of nonprofit elementary and secondary schools (present law requires coverage for employees of institutions of higher education)." S.Rep. No. 94-1265, p. 2 (1976), U.S.Code Cong. & Admin.News 1976, p. 5998.
See also id., at 7, 9-11.
In addition, the legislative history contains several references to the general congressional intention to extend the coverage of the FUTA to substantially all of the Nation's wage earners. See, e. g., H.R.Rep. No. 94-755, supra, at 1-2; 122 Cong.Rec. 22518-22519 (1976); id., at 22899-22900. While such general statements of legislative purpose cannot override plain statutory language, see ante, at 786, n. 19, they are nonetheless consistent with the more specific statements of purpose quoted above.
2
The Senate Report estimated that 242,000 additional employees of nonprofit organizations would be covered under the FUTA as a result of the repeal of § 3309(b)(3). See S.Rep. No. 94-1265, supra, at 8. This figure approximated the number of full-time teachers in all private, nonprofit elementary and secondary schools in 1975. See ante, at 787, n. 20. Because well over one-half of these teachers were employed in parochial schools, respondent argues that this statistic, although perhaps slightly inaccurate, indicates that Congress intended to extend coverage to employees of parochial elementary and secondary schools. As the Court notes, the South Dakota Supreme Court accepted this argument. See ante, at 787; 290 N.W.2d 845, 849, and n. 5 (1980).
The Court finds that respondent's reliance upon this statistic is misplaced because, "in repealing § 3309(b)(3), Congress intended to include not just full-time teachers, but all employees of the newly covered nonprofit private elementary and secondary schools." Ante, at 787 (emphasis in original). The Court's observation, however, indicates only that the statistic was factually inaccurate; it does not undercut respondent's reliance upon that statistic as a guide to congressional intent. Whether Congress believed that the figure 242,000 was an estimate of the number of additional teachers that would be covered by the Act as a result of the repeal of § 3309(b)(3), or an estimate of the number of additional employees that would be so covered, the estimate would have had meaning only if at least some parochial school employees were represented among the 242,000 newly covered individuals.
It also should be noted that the Secretary of Labor, in his order declining to certify the unemployment compensation programs of the States of Alabama and Nevada under the FUTA, stated that the statistic had been supplied to Congress by the Department of Labor as the then-available best estimate of the total number of employees in all nonprofit, private elementary and secondary schools. See 44 Fed.Reg. 64378, 64380-64382, and n. 16 (1979). The Secretary also expressly stated that the estimate included employees of church-related elementary and secondary schools. See ibid.
3
In light of the fact that approximately 86% of the students, see Rice, Conscientious Objection to Public Education: The Grievance and the Remedies, 1978 B.Y.U.L.Rev. 847, and over 50% of the teachers in private, nonprofit elementary and secondary schools are in parochial schools, Congress' failure to mention any exception for such schools is surely significant.
4
The Court of Appeals in Alabama v. Marshall accurately characterized the judicial function in cases such as this:
"If Congress desires to change the established exemption of unemployment compensation coverage for elementary and secondary parochial school employees, it is well within its ability to amend the law to reflect that desire by drafting a clear statement to that effect. But, it is not the responsibility or function of this court to perform linguistic gymnastics in order to upset the plain language of Congress as it exists today." 626 F.2d, at 369.
| 1112
|
68 L.Ed.2d 500
101 S.Ct. 2061
451 U.S. 630
TEXAS INDUSTRIES, INC., Petitioner,v.RADCLIFF MATERIALS, INC., et al.
No. 79-1144.
Argued March 3, 1981.
Decided May 26, 1981.
Syllabus
Petitioner and respondents manufacture and sell ready-mix concrete. A purchaser of concrete from petitioner filed a civil action against petitioner in Federal District Court, alleging that petitioner and certain unnamed firms had conspired to raise concrete prices in violation of § 1 of the Sherman Act, and seeking treble damages under § 4 of the Clayton Act. After learning through discovery that respondents were the alleged co-conspirators, petitioner filed a third-party complaint against them, seeking contribution should it be held liable in the original action. The District Court dismissed the third-party complaint for failure to state a claim upon which relief could be granted, holding that federal law does not allow an antitrust defendant to recover any contribution from alleged co-conspirators. The Court of Appeals affirmed.
Held : There is no basis in federal statutory or common law for allowing federal courts to fashion the right to contribution urged by petitioner. Pp. 2063-2070.
(a) Congress neither expressly nor implicitly intended to create such a right of contribution. Nothing in the Sherman and Clayton Acts or in their legislative history refers to contribution, and there is nothing to indicate any congressional concern with softening the blow on joint wrongdoers. Rather, the very idea of treble damages reveals an intent to punish past, and deter future, unlawful conduct, not to ameliorate the liability of joint wrongdoers. P. 2066.
(b) The federal courts are not empowered to fashion a federal common-law rule of contribution among antitrust wrongdoers. Contribution does not implicate "uniquely federal interests" of the kind that oblige courts to formulate federal common law. Moreover, even though Congress may have intended to allow federal courts to develop governing principles of law in the common-law tradition with regard to substantive violations of the Sherman Act, it does not follow that Congress intended to give courts as wide discretion in formulating remedies to enforce the Act or the kind of relief sought through contribution. There is nothing in the Act itself, in its legislative history, or in the overall legislative scheme to suggest that Congress intended courts to have the power to alter or supplement the remedies enacted. Pp. 2067-2070.
(c) Regardless of the merits of the conflicting arguments on the complex policy questions presented by petitioner's claimed right to contribution, this is a matter for Congress, not the courts to resolve. P. 2070.
5th Cir., 604 F.2d 897, affirmed.
Benjamin R. Slater, Jr., New Orleans, La., for petitioner.
Dando B. Cellini, New Orleans, La., for respondents.
Sol. Gen., Wade H. McCree, Jr., Washington, D. C., for United States, as amicus curiae, by special leave of Court.
Chief Justice BURGER delivered the opinion of the Court.
1
This case presents the question whether the federal antitrust laws allow a defendant, against whom civil damages, costs, and attorney's fees have been assessed, a right to contribution from other participants in the unlawful conspiracy on which recovery was based. We granted certiorari to resolve a conflict in the Circuits. 449 U.S. 949, 101 S.Ct. 351, 66 L.Ed.2d 213 (1980).1 We affirm.
2
* Petitioner and the three respondents manufacture and sell ready-mix concrete in the New Orleans, La., area. In 1975, the Wilson P. Abraham Construction Corp., which had purchased concrete from petitioner, filed a civil action in the United States District Court for the Eastern District of Louisiana naming petitioner as defendant;2 the complaint alleged that petitioner and certain unnamed concrete firms had conspired to raise prices in violation of § 1 of the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. § 1, which provides in relevant part:
3
"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."
4
The complaint sought treble damages plus attorney's fees under § 4 of the Clayton Act, 38 Stat. 731, 15 U.S.C. § 15, which provides:
5
"Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee."3
6
Through discovery, petitioner learned that Abraham believed respondents were the other concrete producers that had participated in the alleged price-fixing scheme.4 Petitioner then filed a third-party complaint against respondents seeking contribution from them should it be held liable in the action filed by Abraham. The District Court dismissed the third-party complaint for failure to state a claim upon which relief could be granted, holding that federal law does not allow an antitrust defendant to recover in contribution from co-conspirators. The District Court also determined there was no just reason for delay with respect to that aspect of the case and entered final judgment under Federal Rule of Civil Procedure 54(b).
7
On appeal, the Court of Appeals for the Fifth Circuit affirmed, holding that, although the Sherman and the Clayton Acts do not expressly afford a right to contribution, the issue should be resolved as a matter of federal common law. Wilson P. Abraham Construction Corp. v. Texas Industries, Inc., 604 F.2d 897 (1979). The court then examined what it perceived to be the benefits and the difficulties of contribution and concluded that no common-law rule of contribution should be fashioned by the courts.
II
8
The common law provided no right to contribution among joint tortfeasors. Union Stock Yards Co. v. Chicago, B. & Q. R. Co., 196 U.S. 217, 25 S.Ct. 226, 49 L.Ed. 453 (1905); W. Prosser, Law of Torts § 50, pp. 305-307 (4th ed. 1971). See Merryweather v. Nixan, 8 Term Rep. 186, 101 Eng.Rep. 1337 (K.B.1799). See also Northwest Airlines, Inc. v. Transport Workers, 451 U.S. 77, 86-87, n. 16, 101 S.Ct. 1571, 1578, n. 16, 67 L.Ed.2d 750. In part, at least, this common-law rule rested on the idea that when several tortfeasors have caused damage, the law should not lend its aid to have one tortfeasor compel others to share in the sanctions imposed by way of damages intended to compensate the victim. E. g., Atkins v. Johnson, 43 Vt. 78, 81-82 (1870). See Leflar, Contribution and Indemnity Between Tortfeasors, 81 U.Pa.L.Rev. 130, 130-134 (1932). Since the turn of the century, however, 39 states and the District of Columbia have fashioned rules of contribution in one form or another, 10 initially through judicial action and the remainder through legislation. See Northwest Airlines, Inc. v. Transport Workers, 451 U.S., at 86-87, and n. 16, 101 S.Ct., at 1578, and n. 16. Because courts generally have acknowledged that treble-damages actions under the antitrust laws are analogous to common-law actions sounding in tort,5 we are urged to follow this trend and adopt contribution for antitrust violators.
9
The parties and amici representing a variety of business interests—as well as a legion of commentators6—have thoroughly addressed the policy concerns implicated in the creation of a right to contribution in antitrust cases. With potentially large sums at stake, it is not surprising that the numerous and articulate amici disagree strongly over the basic issue raised: whether sharing of damages liability will advance or impair the objectives of the antitrust laws.
10
Proponents of a right to contribution advance concepts of fairness and equity in urging that the often massive judgments in antitrust actions be shared by all the wrongdoers. In the abstract, this position has a certain appeal: collective fault, collective responsibility. But the efforts of petitioner and supporting amici to invoke principles of equity presuppose a legislative intent to allow parties violating the law to draw upon equitable principles to mitigate the consequences of their wrongdoing. Moreover, traditional equitable standards have something to say about the septic state of the hands of such a suitor in the courts, and, in the context of one wrongdoer suing a co-conspirator, these standards similarly suggest that parties generally in pari delicto should be left where they are found. See supra, at 2063.7
11
The proponents of contribution also contend that, by allowing one violator to recover from co-conspirators, there is a greater likelihood that most or all wrongdoers will be held liable and thus share the consequences of the wrongdoing. It is argued that contribution would thus promote more vigorous private enforcement of the antitrust laws and thereby deter violations, one of the important purposes of the treble-damages action under § 4 of the Clayton Act. See, e. g., Reiter v. Sonotone Corp., 442 U.S. 330, 344, 99 S.Ct. 2326, 2333, 60 L.Ed.2d 931 (1979); Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 485, 97 S.Ct. 690, 695, 50 L.Ed.2d 701 (1977); Hawaii v. Standard Oil Co., 405 U.S. 251, 262, 92 S.Ct. 885, 891, 31 L.Ed.2d 184 (1972); Perma Life Mufflers, Inc. v. International Parts Corp., 392 U.S. 134, 139, 88 S.Ct. 1981, 1984, 20 L.Ed.2d 982 (1968). Independent of this effect, a right to contribution may increase the incentive of a single defendant to provide evidence against co-conspirators so as to avoid bearing the full weight of the judgment. Realization of this possibility may also deter one from joining an antitrust conspiracy.
12
Respondents and amici opposing contribution point out that an even stronger deterrent may exist in the possibility, even if more remote, that a single participant could be held fully liable for the total amount of the judgment. In this view, each prospective co-conspirator would ponder long and hard before engaging in what may be called a game of "Russian roulette."8 Moreover, any discussion of this problem must consider the problem of "overdeterrence," i. e., the possibility that severe antitrust penalties will chill wholly legitimate business agreements. See United States v. United States Gypsum Co., 438 U.S. 422, 441-442, 98 S.Ct. 2864, 2875-2876, 57 L.Ed.2d 854 (1978).
13
The parties and amici also discuss at length how a right to contribution should be structured and, in particular, how to treat problems that may arise with the allocation of damages among the wrongdoers and the effect of settlements. Dividing or apportioning damages among a cluster of co-conspirators presents difficult issues, for the participation of each in the conspiracy may have varied. Some may have profited more than others; some may have caused more damage to the injured plaintiff. Some may have been "leaders" and others "followers"; one may be a "giant," others "pygmies."9 Various formulae are suggested: damages may be allocated according to market shares, relative profits, sales to the particular plaintiff, the role in the organization and operation of the conspiracy, or simply pro rata, assessing an equal amount against each participant on the theory that each one is equally liable for the injury caused by collective action. In addition to the question of allocation, a right to contribution may have a serious impact on the incentive of defendants to settle. Some amici and commentators have suggested that the total amount of the plaintiff's claim should be reduced by the amount of any settlement with any one co-conspirator; others strongly disagree. Similarly, vigorous arguments can be made for and against allowing a losing defendant to seek contribution from co-conspirators who settled with the plaintiff before trial. Regardless of the particular rule adopted for allocating damages or enforcing settlements, the complexity of the issues involved may result in additional trial and pretrial proceedings, thus adding new complications to what already is complex litigation. See, e. g., Illinois Brick Co. v. Illinois, 431 U.S. 720, 737-747, 97 S.Ct. 2061, 2070-2075, 52 L.Ed.2d 707 (1977).
III
14
The contentions advanced indicate how views diverge as to the "unfairness" of not providing contribution, the risks and trade-offs perceived by decisionmakers in business, and the various patterns for contribution that could be devised. In this vigorous debate over the advantages and disadvantages of contribution and various contribution schemes, the parties, amici, and commentators have paid less attention to a very significant and perhaps dispositive threshold question: whether courts have the power to create such a cause of action absent legislation and, if so, whether that authority should be exercised in this context.
15
Earlier this Term, in Northwest Airlines, Inc. v. Transport Workers, 451 U.S. 77, 101 S.Ct. 1571, 67 L.Ed.2d 750, we addressed the similar question of a right to contribution under the Equal Pay Act of 1963, 29 U.S.C. § 206(d), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. We concluded that a right to contribution may arise in either of two ways: first, through the affirmative creation of a right of action by Congress, either expressly or by clear implication; or, second, through the power of federal courts to fashion a federal common law of contribution. 451 U.S., at 90-91, 101 S.Ct., at 1580.10
16
* There is no allegation that the antitrust laws expressly establish a right of action for contribution. Nothing in these statutes refers to contribution, and if such a right exists it must be by implication. Our focus, as it is in any case involving the implication of a right of action, is on the intent of Congress. E. g., California v. Sierra Club, 451 U.S. 287, 101 S.Ct. 1775, 68 L.Ed.2d 101; Universities Research Assn. v. Coutu, 450 U.S. 754, 101 S.Ct. 1451, 67 L.Ed.2d 662 (1981); Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979); Touche Ross & Co. v. Redington, 442 U.S. 560, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979). Congressional intent may be discerned by looking to the legislative history and other factors: e. g., the identity of the class for whose benefit the statute was enacted, the overall legislative scheme, and the traditional role of the states in providing relief. See California v. Sierra Club, supra; Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975).
17
Petitioner readily concedes that "there is nothing in the legislative history of the Sherman Act or the Clayton Act to indicate that Congress considered whether contribution was available to defendants in antitrust actions." Brief for Petitioner 10. Moreover, it is equally clear that the Sherman Act and the provision for treble-damages actions under the Clayton Act were not adopted for the benefit of the participants in a conspiracy to restrain trade. On the contrary, petitioner "is a member of the class whose activities Congress intended to regulate for the protection and benefit of an entirely distinct class," Piper v. Chris-Craft Industries, Inc., 430 U.S. 1, 37, 97 S.Ct. 926, 947, 51 L.Ed.2d 124 (1977) (emphasis added). The very idea of treble damages reveals an intent to punish past, and to deter future, unlawful conduct, not to ameliorate the liability of wrongdoers. The absence of any reference to contribution in the legislative history or of any possibility that Congress was concerned with softening the blow on joint wrongdoers in this setting makes examination of other factors unnecessary. California v. Sierra Club, supra, at 298, 101 S.Ct., at 1781; Touche Ross & Co. v. Redington, supra, at 574-576, 99 S.Ct., at 2488. We therefore conclude that Congress neither expressly nor implicitly intended to create a right to contribution.11 If any right to contribution exists, its source must be federal common law.
B
18
There is, of course, "no federal general common law." Erie R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938). Nevertheless, the Court has recognized the need and authority in some limited areas to formulate what has come to be known as "federal common law." See United States v. Standard Oil Co., 332 U.S. 301, 308, 67 S.Ct. 1604, 1608, 91 L.Ed. 2067 (1947). These instances are "few and restricted," Wheeldin v. Wheeler, 373 U.S. 647, 651, 83 S.Ct. 1441, 1445, 10 L.Ed.2d 605 (1963), and fall into essentially two categories: those in which a federal rule of decision is "necessary to protect uniquely federal interests," Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 426, 84 S.Ct. 923, 939, 11 L.Ed.2d 804 (1964), and those in which Congress has given the courts the power to develop substantive law, Wheeldin v. Wheeler, supra, at 652, 83 S.Ct., at 1445.
19
(1)
20
The vesting of jurisdiction in the federal courts does not in and of itself give rise to authority to formulate federal common law, United States v. Little Lake Misere Land Co., 412 U.S. 580, 591, 93 S.Ct. 2389, 2396, 37 L.Ed.2d 187 (1973), nor does the existence of congressional authority under Art. I mean that federal courts are free to develop a common law to govern those areas until Congress acts. Rather, absent some congressional authorization to formulate substantive rules of decision, federal common law exists only in such narrow areas as those concerned with the rights and obligations of the United States,12 interstate and international disputes implicating the conflicting rights of States or our relations with foreign nations,13 and admiralty cases.14 In these instances, our federal system does not permit the controversy to be resolved under state law, either because the authority and duties of the United States as sovereign are intimately involved or because the interstate or international nature of the controversy makes it inappropriate for state law to control.
21
In areas where federal common law applies, the creation of a right to contribution may fall within the power of the federal courts. For example, in Cooper Stevedoring Co. v. Fritz Kopke, Inc., 417 U.S. 106, 94 S.Ct. 2174, 40 L.Ed.2d 694 (1974), we held that contribution is available among joint tortfeasors for injury to a longshoreman. But that claim arose within admiralty jurisdiction, one of the areas long recognized as subject to federal common law, see Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 259, 99 S.Ct. 2753, 2756, 61 L.Ed.2d 521 (1979); our decision there was based, at least in part, on the traditional division of damages in admiralty not recognized at common law, see 417 U.S., at 110, 94 S.Ct., at 2176. Copper Stevedoring thus does not stand for a general federal common-law right to contribution. See Northwest Airlines, Inc. v. Transport Workers, 451 U.S., at 96-97, 101 S.Ct., at 1583.
22
The antitrust laws were enacted pursuant to the power of Congress under the Commerce Clause, Art. I, § 8, cl. 3, to regulate interstate and foreign trade, and the case law construing the Sherman Act now spans nearly a century. Nevertheless, a treble-damages action remains a private suit involving the rights and obligations of private parties. Admittedly, there is a federal interest in the sense that vindication of rights arising out of these congressional enactments supplements federal enforcement and fulfills the objects of the statutory scheme. Notwithstanding that nexus, contribution among antitrust wrongdoers does not involve the duties of the Federal Government, the distribution of powers in our federal system, or matters necessarily subject to federal control even in the absence of statutory authority. Cf. Bank of America v. Parnell, 352 U.S. 29, 33, 77 S.Ct. 119, 121, 1 L.Ed.2d 93 (1956). In short, contribution does not implicate "uniquely federal interests" of the kind that oblige courts to formulate federal common law.
23
(2)
24
Federal common law also may come into play when Congress has vested jurisdiction in the federal courts and empowered them to create governing rules of law. See Wheeldin v. Wheeler, supra, at 652, 83 S.Ct., at 1445. In this vein, this Court has read § 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a), not only as granting jurisdiction over defined areas of labor law but also as vesting in the courts the power to develop a common law of labor-management relations within that jurisdiction. Textile Workers v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957). A similar situation arises with regard to the first two sections of the Sherman Act, which in sweeping language forbid "[e]very contract, combination . . ., or conspiracy, in restraint of trade" and "monopoliz[ing], or attempt[ing] to monopolize, . . . any part of the trade or commerce . . . ." 15 U.S.C. §§ 1, 2. We noted in National Society of Professional Engineers v. United States, 435 U.S. 679, 688, 98 S.Ct. 1355, 1363, 55 L.Ed.2d 637 (1978):
25
"Congress, however, did not intend the text of the Sherman Act to delineate the full meaning of the statute or its application in concrete situations. The legislative history makes it perfectly clear that it expected the courts to give shape to the statute's broad mandate by drawing on common-law tradition."
26
Accord, United States v. United States Gypsum Co., 438 U.S., at 438, and n. 14, 98 S.Ct., at 2874, and n. 14; 2 P. Areeda & D. Turner, Antitrust Law ¶ 302 (1978). See 21 Cong.Rec. 2456, 2460, 3149, 3152 (1890).15
27
It does not necessarily follow, however, that Congress intended to give courts as wide discretion in formulating remedies to enforce the provisions of the Sherman Act or the kind of relief sought through contribution. The intent to allow courts to develop governing principles of law, so unmistakably clear with regard to substantive violations, does not appear in debates on the treble-damages action created in § 7 of the original Act, 26 Stat. 210.16 Floyd, supra n. 6, at 228. In the Senate debates of 1890, Senator Morgan described the type of authority given the courts:
28
"Now, whoever recovers upon this statute, in whatever court he may go to, will recover upon the statute. It is very true that we use common-law terms here and common-law definitions in order to define an offense which is in itself comparatively new, but it is not a common-law jurisdiction that we are conferring upon the circuit courts of the United States." 21 Cong.Rec. 3149 (1890) (emphasis added).
29
The Senator added that common-law actions in state courts might still exist, but recovery of treble damages would not be available, for its source is federal, not state, law. Ibid. This description of the power of federal courts under the Act suggests a sharp distinction between the lawmaking powers conferred in defining violations and the ability to fashion the relief available to parties claiming injury.17
30
In contrast to the sweeping language of §§ 1 and 2 of the Sherman Act, the remedial provisions defined in the antitrust laws are detailed and specific: (1) violations of §§ 1 and 2 are crimes; (2) Congress has expressly authorized a private right of action for treble damages, costs, and reasonable attorney's fees;18 (3) other remedial sections also provide for suits by the United States to enjoin violations19 or for injury to its "business or property,"20 and parens patriae suits by state attorneys general;21 (4) Congress has provided that a final judgment or decree of an antitrust violation in one proceeding will serve as prima facie evidence in any subsequent action or proceeding;22 and (5) the remedial provisions in the antimerger field, not at issue here, are also quite detailed.23
31
"The presumption that a remedy was deliberately omitted from a statute is strongest when Congress has enacted a comprehensive legislative scheme including an integrated system of procedures for enforcement." Northwest Airlines, Inc. v. Transport Workers Union, supra, 451 U.S., at 97, 101 S.Ct., at 1584.
32
That presumption is strong indeed in the context of antitrust violations; the continuing existence of this statutory scheme for 90 years without amendments authorizing contribution is not without significance. There is nothing in the statute itself, in its legislative history, or in the overall regulatory scheme to suggest that Congress intended courts to have the power to alter or supplement the remedies enacted.
33
Our cases interpreting the treble-damages action, see, e. g., Hawaii v. Standard Oil Co., 405 U.S. 251, 92 S.Ct. 885, 31 L.Ed.2d 184 (1972); Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971); Perma Life Mufflers, Inc. v. International Parts Corp., 392 U.S. 134, 88 S.Ct. 1981, 20 L.Ed.2d 982 (1968), do not suggest that, in the past, we have invoked some broad-ranging common-law source for creating a cause of action. Nor does the judicial determination that defendants should be jointly and severally liable suggest that courts also may order contribution, since joint and several liability simply ensures that the plaintiffs will be able to recover the full amount of damages from some, if not all, participants. See Atlanta v. Chattanooga Foundry & Pipeworks, 127 F. 23, 26 (CA6 1903), aff'd, 203 U.S. 390, 27 S.Ct. 65, 51 L.Ed. 241 (1906). These cases do no more than identify the scope of the remedy Congress itself has provided. See Floyd, supra n. 6, at 227-231.
34
"In almost any statutory scheme, there may be a need for judicial interpretation of ambiguous or incomplete provisions. But the authority to construe a statute is fundamentally different from the authority to fashion a new rule or to provide a new remedy which Congress has decided not to adopt." Northwest Airlines, Inc. v. Transport Workers Union, supra, 451 U.S., at 97, 101 S.Ct., at 1583.
35
We are satisfied that neither the Sherman Act nor the Clayton Act confers on federal courts the broad power to formulate the right to contribution sought here.
IV
36
The policy questions presented by petitioner's claimed right to contribution are far-reaching. In declining to provide a right to contribution, we neither reject the validity of those arguments nor adopt the views of those opposing contribution. Rather, we recognize that, regardless of the merits of the conflicting arguments, this is a matter for Congress, not the courts, to resolve.
37
The range of factors to be weighed in deciding whether a right to contribution should exist demonstrates the inappropriateness of judicial resolution of this complex issue. Ascertaining what is "fair" in this setting calls for inquiry into the entire spectrum of antitrust law, not simply the elements of a particular case or category of cases. Similarly, whether contribution would strengthen or weaken enforcement of the antitrust laws, or what form a right to contribution should take, cannot be resolved without going beyond the record of a single lawsuit. As in Diamond v. Chakrabarty, 447 U.S. 303, 317, 100 S.Ct. 2204, 2212, 65 L.Ed.2d 144 (1980):
38
"The choice we are urged to make is a matter of high policy for resolution within the legislative process after the kind of investigation, examination, and study that legislative bodies can provide and courts cannot. That process involves the balancing of competing values and interests, which in our democratic system is the business of elected representatives. Whatever their validity, the contentions now pressed on us should be addressed to the political branches of the Government, the Congress and the Executive, and not to the courts."
39
Accord, United States v. Topco Associates, 405 U.S. 596, 611-612, 92 S.Ct. 1126, 1135-1136, 31 L.Ed.2d 515 (1972).
40
Because we are unable to discern any basis in federal statutory or common law that allows federal courts to fashion the relief urged by petitioner, the judgment of the Court of Appeals is
41
Affirmed.
1
Compare Wilson P. Abraham Construction Corp. v. Texas Industries, Inc., 604 F.2d 897 (CA5 1979) (this case), and Olson Farms, Inc. v. Safeway Stores, Inc., 1979-2 Trade Cases ¶ 62,995 (CA10), rehearing en banc granted (Dec. 27, 1979), with Professional Beauty Supply, Inc. v. National Beauty Supply, Inc., 594 F.2d 1179 (CA8 1979).
2
The complaint also named one of petitioner's former employees as a codefendant; this employee has never been served.
3
The phrase "antitrust laws" includes the Sherman Act and the Clayton Act. 15 U.S.C. § 12(a).
4
In 1973, a federal grand jury in Louisiana issued indictments against petitioner, respondents (or their corporate predecessors), and certain employees charging a price-fixing conspiracy in violation of § 1 of the Sherman Act. Each defendant ultimately entered a plea of nolo contendere.
5
See, e. g., Solomon v. Houston Corrugated Box Co., 526 F.2d 389, 392, n. 4 (CA5 1976); Simpson v. Union Oil Co., 311 F.2d 764, 768 (CA9 1963); Northwestern Oil Co. v. Socony-Vacuum Oil Co., 138 F.2d 967, 970 (CA7), cert. denied, 321 U.S. 792, 64 S.Ct. 790, 88 L.Ed. 1081 (1943); Williamson v. Columbia Gas & Elec. Corp., 110 F.2d 15, 18 (CA3 1939), cert. denied, 310 U.S. 639, 60 S.Ct. 1087, 84 L.Ed. 1407 (1940). Cf. Connolly v. Union Sewer Pipe Co., 184 U.S. 540, 552, 22 S.Ct. 431, 436, 46 L.Ed. 679 (1902). Although not expressly characterizing antitrust violations as tortious, our opinion in Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 342-348, 91 S.Ct. 795, 808-811, 28 L.Ed.2d 77 (1971), repeatedly referred to common-law rules and trends regarding release of joint tortfeasors in determining the validity of a release of an alleged antitrust violator.
6
See, e. g., Cirace, A Game Theoretic Analysis of Contribution and Claim Reduction in Antitrust Treble Damage Suits, 55 St. John's L.Rev. 42 (1980); Corbett, Apportionment of Damages and Contribution Among Coconspirators in Antitrust Treble Damage Actions, 31 Ford.L.Rev. 111 (1962); Easterbrook, Landes, & Posner, Contribution Among Antitrust Defendants: A Legal and Economic Analysis, 23 J. Law & Econ. 331 (1980); Floyd, Contribution Among Antitrust Violators: A Question of Legal Process, 1980 B.Y.U.L.Rev. 183; Polinsky & Shavell, Contribution and Claim Reduction Among Antitrust Defendants: An Economic Analysis, 33 Stan.L.Rev. 447 (1981); Note, 63 Cornell L.Rev. 682 (1978); Note, 48 Geo.Wash.L.Rev. 749 (1980); Note, 93 Harv.L.Rev. 1540 (1980); Note, 78 Mich.L.Rev. 892 (1980); Note, 58 Texas L.Rev. 961 (1980); Recent Developments, 33 Vand.L.Rev. 979 (1980); Note, 66 Va.L.Rev. 797 (1980).
7
Of course, not all equitable principles apply in antitrust cases. For example, in Perma Life Mufflers, Inc. v. International Parts Corp., 392 U.S. 134, 88 S.Ct. 1981, 20 L.Ed.2d 982 (1968), the Court held that traditional notions of in pari delicto would not bar a franchisee from recovering from its franchisor even though the franchisee had sought a franchise and thus, to some degree, acquiesced in the scheme alleged to be illegal.
8
Economists disagree over whether business decisionmakers, be they the high-level or the middle-level management, are "risk averse"; i. e., they would prefer a greater certainty of a small loss to a less certain chance of a greater loss. Compare K. Elzinga & W. Breit, The Antitrust Penalties 126-129 (1976), with Easterbrook, Landes, & Posner, supra, n. 6, at 352, n. 50. See also Polinsky & Shavell, supra n. 6, at 452-455; Shavell, Risk Sharing and Incentives in the Principal and Agent Relationship, 10 Bell J.Econ. 55 (1979).
9
A small business that mimics the practices of larger companies may be participating directly in the conspiracy or simply "tagging along" with larger companies. See, e. g., Markham, The Nature and Significance of Price Leadership, 41 Amer.Econ.Rev. 891 (1951); Posner, Oligopoly and the Antitrust Laws: A Suggested Approach, 21 Stan.L.Rev. 1562, 1582 (1969); Washburn, Price Leadership, 64 Va.L.Rev. 691, 693-697, 708-712 (1978). Although following industry leaders may help support an inference of agreement, "this Court has never held that proof of parallel business behavior [by itself] conclusively establishes agreement or, phrased differently, that such behavior itself constitutes a Sherman Act offense." Theatre Enterprises, Inc. v. Paramount Film Distributing Corp., 346 U.S. 537, 541, 74 S.Ct. 257, 259, 98 L.Ed. 273 (1954).
10
In Northwest Airlines, we decided that no such right exists under the Equal Pay Act or Title VII, and we declined to fashion such a right from federal common law.
11
That Congress knows how to define a right to contribution is shown by the express actions for contribution under § 11(f) of the Securities Act of 1933, 15 U.S.C. §§ 77k(f), and §§ 9(e) and 18(b) of the Securities Exchange Act of 1934, 15 U.S.C. §§ 78i(e) and 78r(b). Some courts have extrapolated from these provisions that when an implied right of action exists under the securities laws, there also is an implied right to contribution. See, e. g., Heizer Corp. v. Ross, 601 F.2d 330 (CA7 1979); Globus, Inc. v. Law Research Service, Inc., 318 F.Supp. 955 (SDNY), aff'd, 442 F.2d 1346 (CA2), cert. denied, 404 U.S. 941, 92 S.Ct. 286, 30 L.Ed.2d 254 (1971); De Haas v. Empire Petroleum Co., 286 F.Supp. 809 (Colo.1968), aff'd in part, rev'd in part, 435 F.2d 1223 (CA10 1970). We intimate no view as to the correctness of these decisions; in any event, they do not support implication of a right to contribution when a statute expressly creates a damages action but does not provide for contribution. See Northwest Airlines, Inc. v. Transport Workers, 451 U.S. 77, 91-92, n. 24, 101 S.Ct. 1571, 1580, n. 24, 67 L.Ed.2d 1451.
12
See, e. g., United States v. Little Lake Misere Land Co., 412 U.S. 580, 93 S.Ct. 2389, 37 L.Ed.2d 187 (1973); Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838 (1943).
13
See, e. g., Illinois v. Milwaukee, 406 U.S. 91, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972); Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 84 S.Ct. 923, 11 L.Ed.2d 804 (1964); Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92, 58 S.Ct. 803, 82 L.Ed. 1202 (1938). Many of these cases arise from interstate water disputes. Such cases do not directly involve state boundaries, disputes over which more often come to this Court under our original jurisdiction; they nonetheless involve especial federal concerns to which federal common law applies. In Hinderlider v. La Plata River & Cherry Creek Ditch Co., supra, at 110, 58 S.Ct., at 810, decided the same day as Erie, the Court observed:
"Jurisdiction over controversies concerning rights in interstate streams is not different from those concerning boundaries. These have been recognized as presenting federal questions."
14
See, e. g., Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 99 S.Ct. 2753, 61 L.Ed.2d 521 (1979); Fitzgerald v. United States Lines Co., 374 U.S. 16, 83 S.Ct. 1646, 10 L.Ed.2d 720 (1963).
15
Congress assumed the courts would refer to the existing law of monopolies and restraints on trade. See, e. g., Mitchel v. Reynolds, 1 P.Wms. 181, 24 Eng.Rep. 347 (K.B. 1711); Darcy v. Allein, 11 Co.Rep. 84, 77 Eng.Rep. 1260 (K.B. 1603). See generally P. Areeda, Antitrust Analysis 44-46 (3d ed. 1981); Letwin, The English Common Law Concerning Monopolies, 21 U.Chi.L.Rev. 355 (1954).
16
Section 4 of the Clayton Act, 15 U.S.C. § 15, which provides the private treble-damages action, derives from § 7 of the Sherman Act as originally enacted. See H.R.Rep.No.627, 63d Cong., 2d Sess., pt. 1, p. 14 (1914). Congress repealed the original § 7 in 1955, Act of July 7, 1955, ch. 283, 69 Stat. 282, as being redundant of Clayton Act § 4, H.R.Rep.No.422, 84th Cong., 1st Sess., 2 (1955); S.Rep.No.619, 84th Cong., 1st Sess., 2 (1955).
17
Courts, of course, should be wary of relying on the remarks of a single legislator, and Senator Morgan's comments are not unambiguous. Yet it is clear that when the Sherman Act was adopted the common law did not provide a right to contribution among tortfeasors participating in proscribed conduct. One permissible, though not mandatory, inference is that Congress relied on courts' continuing to apply principles in effect at the time of enactment. See, e. g., Edmonds v. Compagnie Generale Transatlantique, 443 U.S., at 273, 99 S.Ct., at 2763.
18
Clayton Act § 4 (original version at Sherman Act § 7).
19
Sherman Act § 4, 15 U.S.C. § 4.
20
Clayton Act § 4A, 15 U.S.C. § 15a.
21
Clayton Act §§ 4C-4H, 15 U.S.C. §§ 15c-15h.
22
Clayton Act § 5(a), 15 U.S.C. § 16(a).
23
Clayton Act §§ 7-11, 15 U.S.C. §§ 18-21.
| 78
|
451 U.S. 725
101 S.Ct. 2114
68 L.Ed.2d 576
State of MARYLAND et al., Plaintiffs,v.State of LOUISIANA.
No. 83, Orig.
Argued Jan. 19, 1981.
Decided May 26, 1981.
Syllabus
In this original action, several States, joined by the United States, the Federal Energy Regulatory Commission (FERC), and a number of pipeline companies, challenge the constitutionality of Louisiana's tax on the "first-use" of any natural gas brought into Louisiana which was not previously subjected to taxation by another State or the United States. The primary effect of the tax, which is imposed on pipeline companies, is on gas produced in the federal Outer Continental Shelf (OCS)and then piped to processing plants in Louisiana and, for the most part, eventually sold to out-of-state consumers. The first-use tax statute (Act), as well as provisions of other Louisiana statutes, provides a number of exemptions from and credits for the tax whereby Louisiana consumers of OCS gas for the most part are not burdened by the tax, but it uniformly applies to gas moving out of the State. Section 47:1303C of the Act declares that "the tax shall be deemed a cost associated with uses made by the owner in preparation of marketing of the natural gas," and prohibits any attempt to allocate the cost of the tax to any party except the ultimate consumer. A Special Master filed reports, including one recommending that Louisiana's motion to dismiss on jurisdictional grounds be denied, and that the plaintiff States' motion for judgment on the pleadings be denied and further evidentiary hearings be conducted. Exceptions were filed to the reports.
Held:
1. Louisiana's exceptions to the Special Master's recommendation that the motion to dismiss be denied are rejected. Pp. 735-745.
(a) Louisiana's First-Use Tax, while imposed on the pipelines, is passed on to the ultimate consumer. Thus the plaintiff States, as major purchasers of natural gas whose cost has increased as a direct result of imposition of the tax, are directly affected in a "substantial and real" way so as to justify the exercise of this Court's original jurisdiction under Art. III, § 2, cl. 2, of the Constitution, which provides for such jurisdiction over cases in which a "State shall be a Party," and 28 U.S.C. § 1251(a) (1976 ed., Supp. III), which provides that this Court shall have "original and exclusive jurisdiction of all controversies between two or more States." Jurisdiction is also supported by the plaintiff States' interests as parens patriae, acting to protect their citizens from substantial economic injury presented by imposition of the First-Use Tax. Pennsylvania v. West Virginia, 262 U.S. 553. Pp. 735-739.
(b) This case is an appropriate one for the exercise of this Court's exclusive jurisdiction under § 1251(a), even though state-court actions are pending in Louisiana in which the constitutional issues raised here are presented. Neither the plaintiff States, the United States, nor the FERC is a named party in any of the state actions, and they have not sought to intervene therein. Louisiana's tax, affecting millions of consumers in over 30 States implicates serious and important concerns of federalism fully in accord with the purposes and reach of this Court's original jurisdiction. The exercise of original jurisdiction is also justified because the tax affects the United States' interests in the administration of the OCS area and the case is therefore an appropriate one for the exercise of this Court's nonexclusive original jurisdiction, under 28 U.S.C. § 1251(b)(2) (1976 ed., Supp. III), of suits brought by the United States against a State. Arizona v. New Mexico, 425 U.S. 794, 96 S.Ct. 1845, 48 L.Ed.2d 376, distinguished. Pp. 739-745.
2. Plaintiffs' exceptions to the Special Master's recommendation that judgment on the pleadings be denied pending further evidentiary hearings, are sustained. Pp. 746-760.
(a) Section 47:1303C of the Louisiana Act violates the Supremacy Clause. Under the Natural Gas Act, determining pipeline and producer costs is the task of the FERC in the first instance, subject to judicial review. In exercising its authority to regulate the determination of the proper allocation of costs associated with the interstate sale of natural gas to consumers, the FERC normally allocates part of the processing costs between marketable hydrocarbons extracted in the course of processing and the "dried" gas, insisting that the owners of the hydrocarbons bear a fair share of the expense associated with processing rather than passing all of the costs on to the gas consumers. However, § 47:1303C provides that the amount of the Louisiana tax is a cost associated with uses made by the owner in preparation of marketing the natural gas and forecloses the owner from seeking reimbursement for payment of the tax from any third party other than a purchaser of the gas, even though the third party may be the owner of marketable hydrocarbons extracted from processing. Thus the Louisiana statute is inconsistent with the federal scheme and must give way. Cf. Northern Natural Gas Co. v. State Corporation Comm'n of Kansas, 372 U.S. 84, 83 S.Ct. 646, 9 L.Ed.2d 601. Pp. 746-752.
(b) The First-Use Tax is unconstitutional under the Commerce Clause. The flow of gas from OCS wells, through processing plants in Louisiana, and through interstate pipelines to the ultimate consumers in over 30 States, constitutes interstate commerce and, even though "interrupted" by certain events in Louisiana, is a continual flow of gas in interstate commerce. The tax impermissibly discriminates against interstate commerce in favor of local interests as the necessary result of various tax credits and exclusions provided in the Act and other Louisiana statutes whereby Louisiana consumers of OCS gas are substantially protected against the impact of the tax, whereas OCS gas moving out of the State is burdened with the tax. Nor can the tax be justified as a "compensatory" tax, compensating for the effect of the State's severance tax on local production of natural gas, since Louisiana has no sovereign interest in being compensated for the severance of resources from the federally owned OCS land. Pp. 753-760.
Exceptions to Special Master's report sustained in part and overruled in part.
Stephen H. Sachs, Baltimore, Md., for plaintiff States.
Stuart A. Smith, Washington, D.C., for United States.
Frank J. Peragine, New Orleans, La., for intervenor Pipeline Companies.
Eugene Gressman, Washington, D.C. and Robert G. Pugh, Shreveport, La., for defendant.
Justice WHITE delivered the opinion of the Court.
1
In this original action, several States, joined by the United States and a number of pipeline companies, challenge the constitutionality of Louisiana's "First-Use Tax" imposed on certain uses of natural gas brought into Louisiana, principally from the Outer Continental Shelf (OCS), as violative of the Supremacy Clause and the Commerce Clause of the United States Constitution.
2
* The lands beneath the Gulf of Mexico have large reserves of oil and natural gas. Initially, these reserves could not be developed due to technological difficulties associated with off-shore drilling. In 1938, the first drilling rig was constructed off the coast of Louisiana, and with the advent of new technologies, offshore drilling has become commonplace.1 Exploration and development of the OCS in the Gulf of Mexico have become large industries providing a substantial percentage of the natural gas used in this country.2 Most of the gas being extracted from the lands underlying the Gulf is piped to refining plants located in coastal portions of Louisiana where the gas is "dried"—the liquefiable hydrocarbons gathered and removed—on its way to ultimate distribution to consumers in over 30 States. It is estimated that 98% of the OCS gas processed in Louisiana is eventually sold to out-of-state consumers with the 2% remainder consumed within Louisiana.3 The contractual arrangements between a producer of gas and the pipeline companies vary. Most often, the producer sells the gas to the pipeline companies at the wellhead, although the producer may retain an interest in any extractable components. Some producers, however, retain full ownership rights and simply pay a flat fee for the use of the pipeline companies' facilities.4
3
The ownership and control of these large reserves of natural gas have been much disputed. In United States v. Louisiana, 339 U.S. 699, 70 S.Ct. 914, 94 L.Ed. 1216 (1950), the Court applied the principle of its holding in United States v. California, 332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889 (1947)—that the United States possesses paramount rights to lands beneath the Pacific Ocean seaward of California's low-water mark—to the offshore areas adjacent to Louisiana. In 1953, Congress passed the Submerged Lands Act, 43 U.S.C. §§ 1301-1315, ceding any federal interest in the lands within three miles of the coast, while confirming the Federal Government's interest in the area seaward of the 3-mile limit.5 See United States v. Louisiana, 363 U.S. 1, 80 S.Ct. 961, 4 L.Ed.2d 1025 (1960); United States v. Maine, 420 U.S. 515, 524-526, 95 S.Ct. 1155, 1160-1161, 43 L.Ed.2d 363 (1975). In the same year, Congress passed the Outer Continental Shelf Lands Act, 43 U.S.C. §§ 1331-1343 (OCS Act), which declared that the "subsoil and seabed of the outer Continental Shelf appertain to the United States and are subject to its jurisdiction, control, and power of disposition. . . ." § 1332. The OCS Act also established procedures for federal leasing of OCS land to develop mineral resources. While the passage of these Acts established the respective legal interests of the parties, there has been extensive litigation to establish the legal boundaries of the federal OCS domain. See generally United States v. Louisiana, 446 U.S. 253, 254-260, 100 S.Ct. 1618, 1620-1623, 64 L.Ed.2d 196 (1980) (detailing the history of the "long-continuing and sometimes strained controversy" between the United States and Louisiana concerning the OCS lands).
4
In 1978, the Louisiana Legislature enacted a tax of seven cents per thousand cubic feet of natural gas6 on the "first use" of any gas imported into Louisiana which was not previously subjected to taxation by another State or the United States. La.Rev.Stat.Ann. §§ 47:1301-47:1307 (West Supp.1981) (Act). The Tax imposed is precisely equal to the severance tax the State imposes on Louisiana gas producers. The Tax is owed by the owner of the gas at the time the first taxable "use" occurs within Louisiana. § 1305 B. About 85% of the OCS gas brought ashore is owned by the pipeline companies, the rest by the producers. Since most States impose their own severance tax, it is acknowledged that the primary effect of the First-Use Tax will be on gas produced in the federal OCS area and then piped to processing plants located within Louisiana. It has been estimated that Louisiana would receive at least $150 million in annual receipts from the First-Use Tax.7
5
The stated purpose of the First-Use Tax was to reimburse the people of Louisiana for damages to the State's waterbottoms barrier islands, and coastal areas resulting from the introduction of natural gas into Louisiana from areas not subject to state taxes as well as to compensate for the costs incurred by the State in protecting those resources. § 1301C. Moreover, the Tax was designed to equalize competition between gas produced in Louisiana and subject to the state severance tax of seven cents per thousand cubic feet, and gas produced elsewhere not subject to a severance tax such as OCS gas. § 1301 A. The Act specified a number of different uses justifying imposition of the First-Use Tax including sale, processing, transportation, use in manufacturing, treatment, or "other ascertainable action at a point within the state." § 1302(8).8
6
The Act itself, as well as provisions found elsewhere in the state statutes, provided a number of exemptions from and credits for the First-Use Tax. The Severance Tax Credit provided that any taxpayer subject to the First-Use Tax was entitled to a direct tax credit on any Louisiana severance tax owed in connection with the extraction of natural resources within the State. La. Rev.Stat.Ann. § 47:647 (West Supp. 1981).9 Second, municipal or state-regulated electric generating plants and natural gas distributing services located within Louisiana, as well as any direct purchaser of gas used for consumption directly by that purchaser, were provided tax credits on other Louisiana taxes upon a showing that "fuel costs for electricity generation or natural gas distribution or consumption have increased as a direct result of increases in transportation and marketing costs of natural gas delivered from the federal domain of the outer continental shelf . . .," which implicitly includes any increases resulting from the First-Use Tax. La.Rev.Stat.Ann. § 47:11B (West Supp.1981).10 Furthermore, imported natural gas used for drilling oil or gas within the State was exempted from the First-Use Tax. La.Rev.Stat.Ann. § 47:1303A (West Supp.1981). Thus, Louisiana consumers of OCS gas for the most part are not burdened by the Tax, but it does uniformly apply to gas moving out of the State. The Act also purported to establish the legal effect of the Tax in terms of defining the proper allocation of the Tax among potentially liable parties. Specifically, the Act declared that the "tax shall be deemed a cost associated with uses made by the owner in preparation of marketing of the natural gas." § 1303 C. Any contract which attempted to allocate the cost of the Tax to any party except the ultimate consumer was declared to be "against public policy and unenforceable to that extent." Ibid.
7
On March 29, 1979, eight States filed a motion for leave to file a complaint under this Court's original jurisdiction pursuant to Art. III, § 2, of the Constitution. The complaint sought a declaratory judgment that the First-Use Tax was unconstitutional under: (1) the Commerce Clause, Art. I, § 8, cl. 3; (2) the Supremacy Clause Art. VI, cl. 2; (3) the Import-Export Clause, Art. I, § 10, cl. 2; (4) the Impairment of Contracts Clause, Art. I, § 10, cl. 1; and (5) the Equal Protection Clause of the Fourteenth Amendment. The plaintiff States also sought injunctive relief against Louisiana or its agents collecting the Tax with respect to any gas in interstate commerce as well as a refund of taxes already collected. We granted plaintiffs' motion for leave to file on June 18, 1979. 442 U.S. 937, 99 S.Ct. 2876, 61 L.Ed.2d 307. Subsequently, as is usual, we appointed a Special Master to facilitate handling of the suit. 445 U.S. 913, 100 S.Ct. 1271, 63 L.Ed.2d 597 (1980). To date, the Special Master has issued two reports. In the first report, dated May 14, 1980, the Special Master recommended that the Court approve the motions of New Jersey, the United States, the Federal Energy Regulatory Commission (FERC), and 17 pipeline companies to intervene as plaintiffs. The Master's second report was issued on September 15, 1980, and essentially made two recommendations. First, the Master recommended that we deny Louisiana's motion to dismiss and reject the submissions that the plaintiff States had no standing to bring the action and that the case was not an appropriate one for the exercise of our original jurisdiction. Second, on the plaintiff States' motion for judgment on the pleadings on the grounds that the Tax was unconstitutional on its face, the Special Master, while recognizing that the statute was constitutionally suspect in certain respects, recommended that the motion be denied and that further evidentiary hearings be conducted. We heard oral argument on the exceptions filed to the reports.
II
8
Initially, we must resolve Louisiana's contention, rejected by the Special Master, that the case should be dismissed. In support of its motion, Louisiana presents two principal arguments. First, Louisiana contends that the plaintiff States lack standing to bring the suit under the Court's original jurisdiction. Second, Louisiana argues that even if the bare requirements for exercise of our original jurisdiction have been met, this case is not an appropriate one to entertain here because of certain pending state-court actions in Louisiana in which the constitutional issues sought to be presented may be addressed. See Arizona v. New Mexico, 425 U.S. 794, 797, 96 S.Ct. 1845, 1847, 48 L.Ed.2d 376 (1976). See also Ohio v. Wyandotte Chemicals Corp., 401 U.S. 493, 501, 91 S.Ct. 1005, 1011, 28 L.Ed.2d 256 (1971). We agree with the Special Master that both contentions should be rejected.
A.
9
* The Constitution provides for this Court's original jurisdiction over cases in which a "State shall be a Party." Art. III, § 2, cl. 2. Congress has in turn provided that the Supreme Court shall have "original and exclusive jurisdiction of all controversies between two or more States." 28 U.S.C. § 1251(a) (1979 ed., Supp.III). In order to constitute a proper "controversy" under our original jurisdiction, "it must appear that the complaining State has suffered a wrong through the action of the other State, furnishing ground for judicial redress, or is asserting a right against the other State which is susceptible of judicial enforcement according to the accepted principles of the common law or equity systems of jurisprudence." Massachusetts v. Missouri, 308 U.S. 1, 15, 60 S.Ct. 39, 42, 84 L.Ed. 3 (1939). See New York v. Illinois, 274 U.S. 488, 490, 47 S.Ct. 661, 71 L.Ed. 1164 (1927); Texas v. Florida, 306 U.S. 398, 405, 59 S.Ct. 563, 567, 83 L.Ed. 817 (1939).11
10
Louisiana asserts that this case should be dismissed for want of standing because the Tax is imposed on the pipeline companies and not directly on the ultimate consumers. Under its view, the alleged interests of the plaintiff States do not fall within the type of "sovereignty" concerns justifying exercise of our original jurisdiction. Standing to sue, however, exists for constitutional purposes if the injury alleged "fairly can be traced to the challenged action of the defendant, and not injury that results from the independent action of some third party not before the court." Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 41-42, 96 S.Ct. 1917, 1925-1926, 48 L.Ed.2d 450 (1976). See Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 72-81, 98 S.Ct. 2620, 2630-2634, 57 L.Ed.2d 595 (1978). This is clearly the case here. The plaintiff States are substantial consumers of natural gas.12 The First-Use Tax, while imposed on the pipeline companies, is clearly intended to be passed on to the ultimate consumer. Indeed, the statute forbids the Tax from being passed on or back to any third party other than the purchaser of the gas and explicitly directs that it should be considered as a cost of preparing the gas for market. La.Rev.Stat.Ann. § 47:1303 C (West Supp. 1981). In fact, the pipeline companies, with the approval of the FERC, have passed on the cost of the First-Use Tax to their customers. See Louisiana First-Use Tax in Pipeline Rate Cases, Docket No. RM78-23, Order No. 10, 43 Fed.Reg. 45553 (1978).13 Thus, the Special Master property determined that "although the tax is collected from the pipelines, it is really a burden on consumers." Second Report, at 12. It is clear that the plaintiff States, as major purchasers of natural gas whose cost has increased as a direct result of Louisiana's imposition of the First-Use Tax, are directly affected in a "substantial and real" way so as to justify their exercise of this Court's original jurisdiction.
2
11
Jurisdiction is also supported by the States' interest as parens patriae. A State is not permitted to enter a controversy as a nominal party in order to forward the claims of individual citizens. See Oklahoma ex rel. Johnson v. Cook, 304 U.S. 387, 58 S.Ct. 954, 82 L.Ed. 1416 (1938); New Hampshire v. Louisiana, 108 U.S. 76, 2 S.Ct. 176, 27 L.Ed. 656 (1883). But it may act as the representative of its citizens in original actions where the injury alleged affects the general population of a State in a substantial way. See, e. g., Missouri v. Illinois, 180 U.S. 208, 21 S.Ct. 331, 45 L.Ed. 497 (1901); Kansas v. Colorado, 185 U.S. 125, 22 S.Ct. 552, 46 L.Ed. 838 (1902); Georgia v. Tennessee Copper Co., 206 U.S. 230, 27 S.Ct. 618, 51 L.Ed. 1038 (1907). See generally Note, The Original Jurisdiction of the United States Supreme Court, 11 Stan.L. Rev. 665, 671-678 (1959). Cf. Hawaii v. Standard Oil Co., 405 U.S. 251, 257-259, 92 S.Ct. 885, 888-889, 31 L.Ed.2d 184 (1972) (the Court has recognized the right of a State to sue as parens patriae "to prevent or repair harm to its 'quasi-sovereign' interests" in original jurisdiction suits).
12
In this respect, this case is functionally indistinguishable from Pennsylvania v. West Virginia, 262 U.S. 553, 43 S.Ct. 658, 67 L.Ed. 1117 (1923), in which the Court entertained a suit brought by one State against another. In that case, West Virginia, then the leading producer of natural gas, required gas producers in the State to meet the needs of all local customers before shipping any gas interstate. Ohio and Pennsylvania moved for leave to file a complaint under the Court's original jurisdiction claiming that the statute violated the Commerce Clause in that the statute would have the effect of cutting off supplies of natural gas to those States. Both States claimed to be protecting a twofold interest "one as the proprietor of various public institutions and schools whose supply of gas will be largely curtailed or cut off by the threatened interference with the interstate current, and the other as the representative of the consuming public whose supply will be similarly affected." The Court granted leave to file, finding both interests to be substantial. With respect to representing the interests of its citizens the Court stated:
13
"The private consumers in each State not only include most of the inhabitants of many urban communities but constitute a substantial portion of the State's population. Their health, comfort and welfare are seriously jeopardized by the threatened withdrawal of the gas from the interstate stream. This is a matter of grave public concern in which the State, as the representative of the public, has an interest apart from that of the individuals affected. It is not merely a remote or ethical interest but one which is immediate and recognized by law." Id., at 592, 43 S.Ct., at 663.
14
Pennsylvania v. West Virginia counsels that we should not dismiss this action. Plaintiff States have alleged substantial and serious injury to their proprietary interests as consumers of natural gas as a direct result of the allegedly unconstitutional actions of Louisiana. This direct injury is also supported by the States' interest in protecting its citizens from substantial economic injury presented by imposition of the First-Use Tax. Nor does the incidence of the Tax fall on a small group of citizens who are likely to challenge the Tax directly. Rather, a great many citizens in each of the plaintiff States are themselves consumers of natural gas and are faced with increased costs aggregating millions of dollars per year. As the Special Master observed, individual consumers cannot be expected to litigate the validity of the First-Use Tax given that the amounts paid by each consumer are likely to be relatively small. Moreover, because the consumers are not directly responsible to Louisiana for payment of the taxes, they of course are foreclosed from suing for a refund in Louisiana's courts. In such circumstances, exercise of our original jurisdiction is proper.
B
15
With respect to Louisiana's second argument, it is true that we have construed the congressional grant of exclusive jurisdiction under § 1251(a) as requiring resort to our obligatory jurisdiction only in "appropriate cases." Illinois v. City of Milwaukee, 406 U.S. 91, 93, 92 S.Ct. 1385, 1388, 31 L.Ed.2d 712 (1972); Arizona v. New Mexico, 425 U.S., at 796-797, 96 S.Ct., at 1846-1847. This view is consistent with the general observation that the Court's original jurisdiction should be exercised "sparingly." United States v. Nevada, 412 U.S. 534, 538, 93 S.Ct. 2763, 2765, 37 L.Ed.2d 132 (1973). See Ohio v. Wyandotte Chemicals Corp., 401 U.S., at 501, 91 S.Ct., at 1011; Massachusetts v. Missouri, 308 U.S., at 18-20, 60 S.Ct., at 43-44.14 In City of Milwaukee, we noted that what is "appropriate" involves not only "the seriousness and dignity of the claim," but also "the availability of another forum where there is jurisdiction over the named parties, where the issues tendered may be litigated, and where appropriate relief may be had." 406 U.S., at 93, 92 S.Ct., at 1388. Louisiana urges that presently pending state lawsuits raising the identical constitutional issues presented here constitute sufficient reason to forgo the exercise of our original jurisdiction.
16
There have been filed in various lower courts several suits challenging the constitutionality of the First-Use Tax. The first suit was brought by Louisiana in state court seeking a declaratory judgment that the First-Use Tax is constitutional. Edwards v. Transcontinental Gas Pipe Line Corp., No. 216,867 (19th Judicial Dist., East Baton Rouge Parish). Among the named defendants were all of the pipeline companies doing business in the State. The pipeline companies sought to have the Tax declared unconstitutional.15 Other lawsuits were filed in state court seeking a refund of taxes paid under protest. Southern Natural Gas Co. v. McNamara, No. 225,533 (19th Judicial District, East Baton Rouge Parish). These refund actions were filed after this Court granted plaintiff States' motion for leave to file their complaint.16 Since under Louisiana law there is no provision for interim injunctive relief, the pipeline companies were required to pay the Tax. The receipts have been put in an escrow account subject to refund with interest paid on the account at the rate of 6%. Neither the plaintiff States, the United States, nor the FERC is a named party in any of the state actions nor have they filed leave to intervene, although Louisiana represented at oral argument that such a motion would not be opposed.17 The final suit was commenced by the FERC against various state officials, seeking to enjoin enforcement of the First-Use Tax on constitutional grounds. FERC v. McNamara, No. C.A. 78-384 (MD La.). That action is presently stayed.
17
In City of Milwaukee, on which Louisiana relies, the proposed suit by Illinois against four municipalities did not fall within our exclusive grant of original jurisdiction because political subdivisions of the State could not be considered as a State for purposes of 28 U.S.C. § 1251(a) (1976 ed., Supp.III). 406 U.S., at 94-98, 92 S.Ct., at 1388-1390. Similarly, the decision in Wyandotte Chemicals did not involve § 1251(a), since it was a suit between a State and citizens of another State and so did not fall under our exclusive jurisdiction. Louisiana also relies, however, on Arizona v. New Mexico for an example of a case where we determined not to exercise our exclusive jurisdiction in a case between States because the matter was "inappropriate" for determination.18
18
In that case, we denied Arizona's motion for leave to file a complaint against New Mexico. Arizona was suing to challenge New Mexico's electrical energy tax which imposed a net kilowatt hour tax on any electric utility generating electricity in New Mexico. Arizona sought a declaratory judgment that the tax constituted, inter alia, an unconstitutional discrimination against interstate commerce. Arizona brought the suit in its proprietary capacity as a consumer of electricity generated in New Mexico and as parens patriae for its citizens. Arizona further alleged that it had no other forum in which to vindicate its interests. New Mexico asserted that the three Arizona utilities affected by the statute had chosen not to pay the tax and instead had jointly filed suit in state court seeking a declaratory judgment that the tax was unconstitutional. This Court held that "[i]n the circumstances of this case, we are persuaded that the pending state-court action provides an appropriate forum in which theissues tendered here may be litigated." 425 U.S., at 797, 96 S.Ct., at 1847 (emphasis in original).
19
Of course, the issue of appropriateness in an original action between States must be determined on a case-by-case basis. Despite the facial similarity with Arizona v. New Mexico, there are significant differences from the present case that compel an opposite result. First, one of the three electric companies involved in the state-court action in New Mexico was a political subdivision of the State of Arizona. Arizona's interests were thus actually being represented by one of the named parties to the suit. In this case, none of the plaintiff States is directly represented in the tax refund case.19 It is also important to note that Arizona had itself not suffered any direct harm as of the time that it moved for leave to file a complaint since none of the utilities had yet paid the tax. Unlike the present case, it was highly uncertain whether Arizona's interest as a purchaser of electricity had been adversely affected.20 New Mexico's procedure did not limit the utility companies to seeking a refund of taxes already paid, but rather permitted the companies to refuse to pay the tax pending a declaration of the statute's constitutionality. In contrast, Louisiana requires the Tax to be paid pending the refund action with interest accruing at the rate of 6%. As recognized by the Special Master, the effect of the limited interest rate is to permit Louisiana to benefit from any delay attendant to the state-court proceedings even if the Tax is ultimately found unconstitutional.
20
The tax at issue in the Arizona case did not sufficiently implicate the unique concerns of federalism forming the basis of our original jurisdiction. At most, the New Mexico tax affected only some residents in one State. In the present case, the magnitude and effect of the First-Use Tax is far greater. The anticipated $150-million yearly tax is intended to be and is being passed on to millions of consumers in over 30 States. Unlike the day-to-day taxing measures which spurred the Court's observations in Wyandotte, it is not at all a "waste" of this Court's time to consider the validity of a tax with the structure and effect of Louisiana's First-Use Tax. Indeed, there is nothing ordinary about the Tax. Given the underlying claim that Louisiana is attempting, in effect, to levy the Tax as a substitute for a severance tax on gas extracted from areas that belong to the people at large to the relative detriment of the other States in the Union, it is clear that the First-Use Tax implicates serious and important concerns of federalism fully in accord with the purposes and reach of our original jurisdiction.
21
The exercise of our original jurisdiction is also supported by the fact that the First-Use Tax affects the United States' interests in the administration of the OCS—a factor totally absent in Arizona v. New Mexico. While we do not have exclusive jurisdiction in suits brought by the United States against a State, see 28 U.S.C. § 1251(b)(2) (1976 ed., Supp.III), we may entertain such suits as original actions in appropriate circumstances. See, e. g., United States v. California, 332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889 (1947). See also United States v. Alaska, 422 U.S. 184, 186, n. 2, 95 S.Ct. 2240, 2245, n. 2, 45 L.Ed.2d 109 (1975). To be sure, we "seek to exercise our original jurisdiction sparingly and are particularly reluctant to take jurisdiction of a suit where the plaintiff has another adequate forum in which to settle his claim." United States v. Nevada, 412 U.S., at 538, 93 S.Ct., at 2765. In this case, however, it is clear that a district court action brought by the United States, which necessarily would not include the plaintiff States, would be an inadequate forum in light of the present posture of this case. In addition, because of the interest of the United States in protecting its rights in the OCS area, with ramifications for all coastal States, as well as its interests under the regulatory mechanism that supervises the production and development of natural gas resources, we believe that this case is an appropriate one for the exercise of our original jurisdiction under § 1251(b)(2).
22
For the reasons stated above, we reject Louisiana's exceptions to the report of the Special Master, and accept the recommendation that we deny Louisiana's motion to dismiss.21
III
23
On the merits, plaintiffs argue that the First-Use Tax violates the Supremacy Clause because it interferes with federal regulation of the transportation and sale of natural gas in interstate commerce. The Supremacy Clause provides that "[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Art. VI, cl. 2. It is basic to this constitutional command that all conflicting state provisions be without effect. See McCulloch v. Maryland, 4 Wheat. 316, 427, 4 L.Ed. 579 (1819). See also Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581 (1941). Consideration under the Supremacy Clause starts with the basic assumption that Congress did not intend to displace state law. See Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947). But as the Court stated in Rice :
24
"Such a purpose [to displace state law] may be evidenced in several ways. The scheme of federal regulation may be so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it. Pennsylvania R. Co. v. Public Service Comm'n, 250 U.S. 566, 569 [40 S.Ct. 36, 37, 64 L.Ed. 1142]; Cloverleaf Butter Co. v. Patterson, 315 U.S. 148 [62 S.Ct. 491, 86 L.Ed. 754]. Or the Act of Congress may touch a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject. Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581. Likewise, the object sought to be obtained by the federal law and the character of obligations imposed by it may reveal the same purpose. Southern R. Co. v. Railroad Commission, 236 U.S. 439 [35 S.Ct. 304, 59 L.Ed. 661]; Charleston & W. C. R. Co. v. Varnville Co., 237 U.S. 597 [35 S.Ct. 715, 59 L.Ed. 1137]; New York Central R. Co. v. Winfield, 244 U.S. 147 [37 S.Ct. 546, 61 L.Ed. 1045]; Napier v. Atlantic Coast Line R. Co. [272 U.S. 605, 47 S.Ct. 207, 71 L.Ed. 432]. Or the state policy may produce a result inconsistent with the objective of the federal statute. Hill v. Florida, 325 U.S. 538 [65 S.Ct. 1373, 89 L.Ed. 1782]." Ibid.
25
Of course, a state statute is void to the extent it conflicts with a federal statute—if, for example, "compliance with both federal and state regulations is a physical impossibility," Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143, 83 S.Ct. 1210, 1217-18, 10 L.Ed.2d 248 (1963), or where the law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines v. Davidowitz, supra, at 67, 61 S.Ct., at 404. See generally Ray v. Atlantic Richfield Co., 435 U.S. 151, 157-158, 98 S.Ct. 988, 944-45, 55 L.Ed.2d 179 (1978); City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 633, 93 S.Ct. 1854, 1859, 36 L.Ed.2d 547 (1973).
26
Plaintiffs argue that § 1303 C of the Act violates the Natural Gas Act, 15 U.S.C. §§ 717-717w (1976 ed. and Supp.III) (Gas Act), as amended by the Natural Gas Policy Act of 1978.22 In 1938, Congress enacted the Gas Act to assure that consumers of natural gas receive a fair price and also to protect against the economic power of the interstate pipelines. See FPC v. Hope Natural Gas Co., 320 U.S. 591, 610, 612, 64 S.Ct. 281, 291, 292, 88 L.Ed. 333 (1944); Atlantic Refining Co. v. Public Service Comm'n of New York, 360 U.S. 378, 388-389, 79 S.Ct. 1246, 1253-54, 3 L.Ed.2d 1312 (1959). The Gas Act was intended to provide the Federal Power Commission, now the FERC, with authority to regulate the wholesale pricing of natural gas in the flow of interstate commerce from wellhead to delivery to consumers. Phillips Petroleum Co. v. Wisconsin, 347 U.S. 672, 682, 74 S.Ct. 794, 799, 98 L.Ed. 1035 (1954).
27
Under the present law, natural gas owners are entitled to recover from their customers all legitimate costs associated with the production, processing, and transportation of natural gas. See FPC v. United Gas Pipe Line Co., 386 U.S. 237, 243, 87 S.Ct. 1003, 1007, 18 L.Ed.2d 18 (1967) (cost of service normally includes proper allowance for taxes and this allowance is "obviously within the jurisdiction of the Commission"). As part of the First-Use Tax, Louisiana has directed that the amount of the Tax should be "deemed a cost associated with uses made by the owner in preparation of marketing of the natural gas." § 1303 C.23 The Act further provides that an owner shall not have an enforceable right to seek reimbursement for payment of the Tax from any third party other than a purchaser of the gas, ibid., even though the third party may be the owner of marketable hydrocarbons that are extracted from the gas in the course of processing.
28
The effect of § 1303 C is to interfere with the FERC's authority to regulate the determination of the proper allocation of costs associated with the sale of natural gas to consumers. The unprocessed gas obtained at the wellhead contains extractable hydrocarbons which are most often owned and sold separately from the "dried" gas. The FERC normally allocates part of the processing costs between these related products, and insists that the owners of the liquefiable hydrocarbons bear a fair share of the expense associated with processing.24 See generally FPC v. United Gas Pipe Line Co., supra, at 243, 87 S.Ct., at 1007 ("income and expense of unregulated and regulated activities should be segregated"). By specifying that the First-Use Tax is a processing cost to be either borne by the pipeline or other owner without compensation, an unlikely event in light of the large sums involved, or passed on to purchasers, Louisiana has attempted a substantial usurpation of the authority of the FERC by dictating to the pipelines the allocation of processing costs for the interstate shipment of natural gas. Owners of natural gas are foreclosed by the operation of § 1303 C from entering into valid contracts requiring the owners of the extracted hydrocarbons to reimburse the pipelines for costs associated with transporting and processing these products. The effect of § 1303 C is to shift the incidence of certain expenses, which the FERC insists are incurred substantially for the benefit of the owners of extractable hydrocarbons, to the ultimate consumer of the processed gas without the prior approval of the FERC.
29
The effect of § 1303 C is akin to the state regulation overturned in Northern Natural Gas Co. v. State Corporation Comm'n of Kansas, 372 U.S. 84, 92, 83 S.Ct. 646, 651, 9 L.Ed.2d 601 (1963). In Northern Natural Gas, a state administrative agency's rule required an interstate pipeline company to purchase natural gas ratably from all the wells in a particular field. The Court held that the rule violated the superior interests of the Federal Government under the Gas Act. The state Commission's order shifted the burden of performing the "complex task of balancing the output of thousands of natural gas wells within the State" to the pipeline company. This requirement "could seriously impair the Federal Commission's authority to regulate the intricate relationship between the purchasers' cost structures and eventual costs to wholesale customers who sell to consumers in other States. This relationship is a matter with respect to which Congress has given the Federal Power Commission paramount and exclusive authority." Ibid.
30
While the Special Master noted that the FERC was of the opinion that the First-Use Tax was impermissible, the Special Master refused to recommend that the Court grant plaintiffs' motion for judgment on the Supremacy Clause issue respecting § 1303 C because he discerned a factual issue concerning the nature of the gas-drying process. Under the Special Master's view, if the facts demonstrated that processing was done for the profit of the owners of the extractable hydrocarbons, then the position of the FERC that such costs should not be passed on to the consumers was correct. If, however, the processing was done as a means of standardizing the heat content of the gas for sale to consumers, then it would be reasonable to pass the Tax forward, and thus § 1303 C would be consistent with Gas Act policy. The Special Master concluded that this question was best resolved after suitable factual development, and that in any event, it may be that "in the end FERC's orders can be adjusted so that the laws will mesh without conflict."
31
It is our view, however, that the issue is ripe for decision without further evidentiary hearings. Under the Gas Act, determining pipeline and producer costs is the task of the FERC in the first instance, subject to judicial review. Hence, the further hearings contemplated by the Special Master to determine whether and how processing costs are to be allocated are as inappropriate as Louisiana's effort to pre-empt those decisions by a statute directing that processing costs be passed on to the consumer. Even if the FERC ultimately determined that such expenses should be passed on in toto, this kind of decisionmaking is within the jurisdiction of the FERC; and the Louisiana statute, like the state Commission's order in Northern Natural Gas, supra, is inconsistent with the federal scheme and must give way. At the very least, there is an "imminent possibility of collision," ibid.25 The FERC need not adjust its rulings to accommodate the Louisiana statute. To the contrary, the State may not trespass on the authority of the federal agency. As we see it, plaintiffs are entitled to judgment on the pleadings that § 1303 C is invalid under the Supremacy Clause. To that extent, therefore, we sustain plaintiffs' exceptions to the Special Master's second report.26
IV
32
Plaintiffs also argue that the First-Use Tax violates the Commerce Clause of the United States Constitution which provides that "[t]he Congress shall have Power . . . [t]o regulate Commerce . . . among the several States. . . ." Art. I, § 8, cl. 3. Prior case law has established that a state tax is not per se invalid because it burdens interstate commerce since interstate commerce may constitutionally be made to pay its way. Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 97 S.Ct. 1076, 51 L.Ed.2d 326 (1977). See Western Live Stock v. Bureau of Revenue, 303 U.S. 250, 58 S.Ct. 546, 82 L.Ed. 823 (1938). The State's right to tax interstate commerce is limited, however, and no state tax may be sustained unless the tax: (1) has a substantial nexus with the State; (2) is fairly apportioned; (3) does not discriminate against interstate commerce; and (4) is fairly related to the services provided by the State. Washington Revenue Dept. v. Washington Stevedoring Assn., 435 U.S. 734, 750, 98 S.Ct. 1388, 1399, 55 L.Ed.2d 682 (1978). One of the fundamental principles of Commerce Clause jurisprudence is that no State, consistent with the Commerce Clause, may "impose a tax which discriminates against interstate commerce . . . by providing a direct commercial advantage to local business." Northwestern States Portland Cement Co. v. Minnesota, 358 U.S. 450, 458, 79 S.Ct. 357, 362, 3 L.Ed.2d 421 (1959). See Boston Stock Exchange v. State Tax Comm'n, 429 U.S. 318, 329, 97 S.Ct. 599, 606, 50 L.Ed.2d 514 (1977). This antidiscrimination principle "follows inexorably from the basic purpose of the Clause" to prohibit the multiplication of preferential trade areas destructive of the free commerce anticipated by the Constitution. Boston Stock Exchange, supra. See Dean Milk Co. v. Madison, 340 U.S. 349, 356, 71 S.Ct. 295, 298, 95 L.Ed. 329 (1951).
33
Initially, it is clear to us that the flow of gas from the OCS wells, through processing plants in Louisiana, and through interstate pipelines to the ultimate consumers in over 30 States constitutes interstate commerce. Louisiana argues that the taxable "uses" within the State break the flow of commerce and are wholly local events. But although the Louisiana "uses" may possess a sufficient local nexus to support otherwise valid taxation,27 we do not agree that the flow of gas from the wellhead to the consumer, even though "interrupted" by certain events, is anything but a continual flow of gas in interstate commerce. Gas crossing a state line at any stage of its movement to the ultimate consumer is in interstate commerce during the entire journey. California v. Lo-Vaca Gathering Co., 379 U.S. 366, 369, 85 S.Ct. 486, 488, 13 L.Ed.2d 357 (1965). See Michigan-Wisconsin Pipe Line Co. v. Calvert, 347 U.S. 157, 163, 74 S.Ct. 396, 399, 98 L.Ed. 583 (1954); FPC v. East Ohio Gas Co., 338 U.S. 464, 472-473, 70 S.Ct. 266, 271, 94 L.Ed. 268 (1950); Deep South Oil Co. v. FPC, 247 F.2d 882, 887-888 (CA5 1957). See generally Illinois Natural Gas Co. v. Central Illinois Public Service Co., 314 U.S. 498, 503-504, 62 S.Ct. 384, 386, 86 L.Ed. 371 (1942) (fact of sale does not serve to change the "essential interstate nature of the business").
34
A state tax must be assessed in light of its actual effect considered in conjunction with other provisions of the State's tax scheme. "In each case it is our duty to determine whether the statute under attack, whatever its name may be, will in its practical operation work discrimination against interstate commerce." Best & Co. v. Maxwell, 311 U.S. 454, 455-456, 61 S.Ct. 334, 335, 85 L.Ed. 275 (1940). See Halliburton Oil Well Cementing Co. v. Reily, 373 U.S. 64, 69, 83 S.Ct. 1201, 1203, 10 L.Ed.2d 202 (1963); Gregg Dyeing Co. v. Query, 286 U.S. 472, 478-480, 52 S.Ct. 631, 633-35, 76 L.Ed. 1232 (1932). In this case, the Louisiana First-Use Tax unquestionably discriminates against interstate commerce in favor of local interests as the necessary result of various tax credits and exclusions. No further hearings are necessary to sustain this conclusion. Under the specific provision of the First-Use Tax, OCS gas used for certain purposes within Louisiana is exempted from the Tax. OCS gas consumed in Louisiana for (1) producing oil, natural gas, or sulphur; (2) processing natural gas for the extraction of liquefiable hydrocarbons; or (3) manufacturing fertilizer and anhydrous ammonia, is exempt from the First-Use Tax. § 1303 A. Competitive users in other States are burdened with the Tax. Other Louisiana statutes, enacted as part of the First-Use Tax package, provide important tax credits favoring local interests. Under the Severance Tax Credit, an owner paying the First-Use Tax on OCS gas receives an equivalent tax credit on any state severance tax owed in connection with production in Louisiana. § 47:647 (West Supp.1981). On its face, this credit favors those who both own OCS gas and engage in Louisiana production.28 The obvious economic effect of this Severance Tax Credit is to encourage natural gas owners involved in the production of OCS gas to invest in mineral exploration and development within Louisiana rather than to invest in further OCS development or in production in other States. Finally, under the Louisiana statutes, any utility producing electricity with OCS gas, any natural gas distributor dealing in OCS gas, or any direct purchaser of OCS gas for consumption by the purchaser in Louisiana may recoup any increase in the cost of gas attributable to the First-Use Tax through credits against various taxes or a combination of taxes otherwise owed to the State of Louisiana. § 47:11 B (West Supp.1981). Louisiana consumers of OCS gas are thus substantially protected against the impact of the First-Use Tax and have the benefit of untaxed OCS gas which because it is not subject to either a severance tax or the First-Use Tax may be cheaper than locally produced gas. OCS gas moving out of the State, however, is burdened with the First-Use Tax.29
35
The Special Master was aware that the effect of the Louisiana tax system is to favor local interests. With respect to the Severance Tax Credit, the Special Master noted that "[s]ince there is no apparent relation between the ownership of outer continental shelf gas and the production of gas in Louisiana, it is hard to understand Louisiana's motive in permitting this credit, but it obviously aids an intrastate operation in a way not available to a pipeline engaged only in interstate transportation or producing gas outside of Louisiana." Second Report, at 34. Moreover, the credit available to electrical generating plants, gas distributing services, and direct purchasers resulted in Louisiana customers being "protected in whole or in part from the incidence of the tax which is passed on to consumers out of the State." Ibid. Despite these concerns, the Special Master did not recommend granting plaintiffs' motion to invalidate the Tax under the Commerce Clause because, as he saw it, it was difficult to tell the effect of the various credits, given the totality of the operation of the state tax provisions. Thus, instead of being discriminatory, the "actuality of operation" test required by Halliburton Oil Well Cementing Co. v. Reily, supra, at 69, 83 S.Ct., at 1203, might demonstrate after a full hearing that the First-Use Tax is a proper " 'compensating' tax intended to complement the state severance tax as the use tax complemented the sales tax in Henneford v. Silas Mason Co., 300 U.S. 577, 57 S.Ct. 524, 81 L.Ed. 814 (1937)." Second Report, at 35.
36
In our view, the First-Use Tax cannot be justified as a compensatory tax. The concept of a compensatory tax first requires identification of the burden for which the State is attempting to compensate. Here, Louisiana claims that the First-Use Tax compensates for the effect of the State's severance tax on local production of natural gas. To be sure, Louisiana has an interest in protecting its natural resources, and, like most States, has chosen to impose a severance tax on the privilege of severing resources from its soil. See Bel Oil Corp. v. Roland, 242 La. 498, 137 So.2d 308, appeal dism'd, 371 U.S. 2, 83 S.Ct. 22, 9 L.Ed.2d 48 (1962); Edwards v. Parker, 332 So.2d 175 (La.1976). But the First-Use Tax is not designed to meet these same ends since Louisiana has no sovereign interest in being compensated for the severance of resources from the federally owned OCS land. The two events are not comparable in the same fashion as a use tax complements a sales tax. In that case, a State is attempting to impose a tax on a substantially equivalent event to assure uniform treatment of goods and materials to be consumed in the State. No such equality exists in this instance.
37
The common thread running through the cases upholding compensatory taxes is the equality of treatment between local and interstate commerce. See Boston Stock Exchange, 429 U.S., at 331-332, 97 S.Ct., at 607-608; Henneford v. Silas Mason Co., 300 U.S. 577, 583-584, 57 S.Ct. 524, 527-528, 81 L.Ed. 814 (1937). See generally Halliburton Oil, 373 U.S., at 70, 83 S.Ct., at 1203 ("equal treatment for in-state and out-of-state taxpayers similarly situated is the condition precedent for a valid use tax on goods imported from out-of-state"). As already demonstrated, however, the pattern of credits and exemptions allowed under the Louisiana statute undeniably violates this principle of equality. As we have said, OCS gas may generally be consumed in Louisiana without the burden of the First-Use Tax. Its principal application is to gas moving out of State. Of course, it does equalize the tax burdens on OCS gas leaving the State and Louisiana gas going into the interstate market. But this sort of equalization is not the kind of "compensating" effect that our cases have recognized.
38
It may be true that further hearings would be required to provide a precise determination of the extent of the discrimination in this case, but this is an insufficient reason for not now declaring the Tax unconstitutional and eliminating the discrimination. We need not know how unequal the Tax is before concluding that it unconstitutionally discriminates. Accordingly, we grant plaintiffs' exception that the First-Use Tax is unconstitutional under the Commerce Clause because it unfairly discriminates against purchasers of gas moving through Louisiana in interstate commerce.
V
39
In conclusion, we hold that § 1303 C violates the Supremacy Clause and that the First-Use Tax is unconstitutional under the Commerce Clause. Judgment to that effect and enjoining further collection of the Tax shall be entered. Jurisdiction over the case is retained in the event that further proceedings are required to implement the judgment.
40
So ordered.
41
Justice POWELL took no part in the consideration or decision of this case.
42
Chief Justice BURGER, concurring.
43
There is much validity in Justice REHNQUIST's dissenting opinion, and it should keep us alert to any effort to expand the use of our original jurisdiction. However, I am satisfied that the Court's resolution of this case is sound, and I therefore join the Court's opinion.
44
Justice REHNQUIST, dissenting.
45
There is no question that this controversy falls within the literal terms of the constitutional and statutory grant of original jurisdiction to this Court. U.S.Const., Art. III, § 2, cl. 2; 28 U.S.C. § 1251(a) (1976 ed., Supp.III). As the Court stated in Illinois v. Milwaukee, 406 U.S. 91, 93, 92 S.Ct. 1385, 1387, 31 L.Ed.2d 712 (1972), however, "[w]e construe 28 U.S.C. § 1251(a)(1), as we do Art. III, § 2, cl. 2, to honor our original jurisdiction but to make it obligatory only in appropriate cases." Because of the nature of the interests which the plaintiff States seek to vindicate in this original action, and because of the existence of alternative forums in which these interests can be vindicated, I do not consider this an "appropriate case" for the exercise of original jurisdiction. The plaintiff States have not, in my view, established the "strictest necessity" required for invoking this Court's original jurisdiction, Ohio v. Wyandotte Chemicals Corp., 401 U.S. 493, 505, 91 S.Ct. 1005, 1013, 28 L.Ed.2d 256 (1971), and therefore I would grant defendant Louisiana's motion to dismiss the complaint.
46
* It has been a consistent and dominant theme in decisions of this Court that our original jurisdiction should be exercised with considerable restraint and only after searching inquiry into the necessity for doing so. As we noted in Illinois v. Milwaukee, "[i]t has long been this Court's philosophy that 'our original jurisdiction should be invoked sparingly.' " 406 U.S., at 93, 92 S.Ct., at 1387 (quoting Utah v. United States, 394 U.S. 89, 95, 89 S.Ct. 761, 765, 22 L.Ed.2d 99 (1969)). Chief Justice Fuller wrote in 1900 that original "jurisdiction is of so delicate and grave a character that it was not contemplated that it would be exercised save when the necessity was absolute. . . ." Louisiana v. Texas, 176 U.S. 1, 15, 20 S.Ct. 251, 256, 44 L.Ed. 347. The reasons underlying this restraint have also been long established. The Court has wisely insisted that original jurisdiction be sparingly invoked because it is not suited to functioning as a nisi prius tribunal. "This Court is . . . structured to perform as an appellate tribunal, ill-equipped for the task of factfinding and so forced, in original [jurisdiction] cases, awkwardly to play the role of factfinder without actually presiding over the introduction of evidence." Ohio v. Wyandotte Chemicals Corp., supra, at 498, 91 S.Ct., at 1009.1 Over 40 years ago, when the Court's docket was considerably lighter than it is today, Chief Justice Hughes articulated the concern that accepting original-jurisdiction cases "in the absence of facts showing the necessity for such intervention, would be to assume a burden which the grant of original jurisdiction cannot be regarded as compelling this Court to assume and which might seriously interfere with the discharge by this Court of its duty in deciding the cases and controversies appropriately brought before it." Massachusetts v. Missouri, 308 U.S. 1, 19, 60 S.Ct. 39, 43, 84 L.Ed. 3 (1939). The Court has recognized that expending its time and resources on original-jurisdiction cases detracts from its primary responsibility as an appellate tribunal. "The breadth of the constitutional grant of this Court's original jurisdiction dictates that we be able to exercise discretion over the cases we here under this jurisdictional head, lest our ability to administer our appellate docket be impaired." Washington v. General Motors Corp., 406 U.S. 109, 113, 92 S.Ct. 1396, 1398, 31 L.Ed.2d 727 (1972). See also Illinois v. Milwaukee, supra, at 93-94, 92 S.Ct., at 1387. ("We incline to a sparing use of our original jurisdiction so that our increasing duties with the appellate docket will not suffer"). Original-jurisdiction cases represent an "intrusion on society's interest in our most deliberate and considerate performance of our paramount role as the supreme federal appellate court. . . ." Ohio v. Wyandotte Chemicals Corp., supra, at 505, 91 S.Ct., at 1013.
47
None of these concerns are adequately answered by the expedient of employing a Special Master to conduct hearings, receive evidence, and submit recommendations for our review. It is no reflection on the quality of the work by the Special Master in this case or any other master in any other original-jurisdiction case to find it unsatisfactory to delegate the proper functions of this Court. Of course this Court cannot sit to receive evidence or conduct trials—but that fact should counsel reluctance to accept cases where the situation might arise, not resolution of the problem by empowering an individual to act in our stead. I for one think justice is far better served by trials in the lower courts, with appropriate review, than by trials before a Special Master whose rulings this Court simply cannot consider with the care and attention it should. It is one thing to review findings of a district court or state court, empowered to make findings in its own right, and quite another to accept (or reject) recommendations when this Court is in theory the primary factfinder. As Chief Justice Stone put it in Georgia v. Pennsylvania R. Co., 324 U.S. 439, 470, 65 S.Ct. 716, 732, 89 L.Ed. 1051 (1945) (dissenting opinion): "In an original suit, even when the case is first referred to a master, this Court has the duty of making an independent examination of the evidence, a time-consuming process which seriously interferes with the discharge of our ever-increasing appellate duties."
II
48
The prudential process by which the Court culls "appropriate" original-jurisdiction cases from those which are inappropriate involves two inquiries. In Massachusetts v. Missouri, supra, at 18, 60 S.Ct., at 42 the Court noted:
49
"In the exercise of our original jurisdiction so as truly to fulfill the constitutional purpose we not only must look to the nature of the interests of the complaining State—the essential quality of the right asserted—but we must also inquire whether recourse to that jurisdiction . . . is necessary for the State's protection."
50
This dual inquiry was reaffirmed in Washington v. General Motors Corp., supra, at 113, 92 S.Ct., at 1398. Or, as put in Illinois v. Milwaukee, 406 U.S., at 93, 92 S.Ct., at 1387, "the question of what is appropriate concerns, of course, the seriousness of dignity of the claim; yet beyond that it necessarily involves the availability of another forum where there is jurisdiction over the named parties, where the issues tendered may be litigated, and where appropriate relief may be had." The first prong of the inquiry thus involves an assessment of the "nature of the interests of the complaining state," "the essential quality of the right asserted," "the seriousness and dignity of the claim," and the second prong an examination of the availability of an alternative forum.
51
The Court accepts original jurisdiction in this case for two separate reasons: because the plaintiff States are injured in their capacity as purchasers of natural gas, ante, at 736-737, and because the plaintiff States may sue as parens patriae, ante, at 737-739. In ruling that jurisdiction exists because of the plaintiff States' own purchases of natural gas, the Court does not even purport to consider the nature or essential quality of the States' claim or whether it is of sufficient "seriousness and dignity" to justify invoking our "delicate and grave" original jurisdiction. The Court recognizes that "unique concerns of federalism" form the basis of our original jurisdiction, ante, at 743, but does not explain how such concerns are implicated simply because one State levies a tax on an item which is eventually passed on to consumers, one of which happens to be another State. The "nature of the interests of the complaining state—the essential quality of the right asserted" is indistinguishable from the interest and right of a private citizen, and the States' claim is of no greater "seriousness and dignity" than the claim of any other consumer.
52
I would hold that, as a general rule, when a State's claim is indistinguishable from the claim of any other private consumer it is insufficient to invoke our original jurisdiction. The Court in the past has referred to claims by a State in its capacity simply as consumer or owner as mere "makeweights." See Georgia v. Pennsylvania R. Co., supra, at 450, 65 S.Ct., at 722; Georgia v. Tennessee Copper Co., 206 U.S. 230, 237, 27 S.Ct. 618, 619, 51 L.Ed. 1038 (1907); see also Pennsylvania v. West Virginia, 262 U.S. 553, 611, 43 S.Ct. 658, 670, 67 L.Ed. 1117 (1923) (Brandeis, J., dissenting). Cf. Kansas v. Colorado, 206 U.S. 46, 98, 27 S.Ct. 655, 667, 51 L.Ed. 956 (1907). I do not think such a makeweight should suffice to invoke our original jurisdiction, particularly since States now act as consumers in a vast array of areas.
53
The fact that States now purchase countless varieties of items for their own use which were not purchased 50 or even 25 years ago suggests that concern for our own limited resources is not the only factor which should motivate us in allowing our original jurisdiction to be invoked sparingly. With the greatly increased litigation dockets in most state and federal trial courts, there will be the strongest temptation for various interest groups within the State to attempt to persuade the Attorney General of that State to bring an action in the name of the State in order to make an end run around the barriers of time and delay which would confront them if they were merely private litigants.2 Thus in permitting indiscriminate use of our original jurisdiction we not only consume our own scarce resources, but permit in effect the bypassing of ordinary trial courts where private parties are required to litigate the same issues. Such a departure from past practice risks the creation of an entirely separate system for litigation in this country, standing side by side with the state-court systems and the federal-court system. It will obviously be tempting to many interests of a variety of persuasions on the merits of a particular issue to "start at the top", so to speak, and have the luxury of litigating only before a Special Master followed by the appellate-type review which this Court necessarily gives to his findings and recommendations.
54
If all that is required to invoke our original jurisdiction is an injury to the State as consumer caused by the regulatory activity of another State, the list of cases which could be pressed as original-jurisdiction cases must be endless. The Court's opinion contains no limiting principle, as mandated by the frequent statements that our original jurisdiction be sparingly invoked and the required inquiry into the nature of the State's claim.
55
I would require that the State's claim involve some tangible relation to the State's sovereign interests. Our original jurisdiction should not be trivialized and open to run-of-the-mill claims simply because they are brought by a State, but rather should be limited to complaints by States qua States. This would include the prototypical original action, boundary disputes, and the familiar cases involving disputes over water rights. In such cases, the State seeks to vindicate its rights as a State, a political entity.3 Since nothing about the complaint in this case involves sovereign interests, I would hold that there is no jurisdiction on the basis of the States' own purchases of natural gas.4
56
Nor is this an appropriate case for the plaintiff States to invoke original jurisdiction as parens patriae. The Court announces that a State may sue in this capacity in an original action "where the injury alleged affects the general population of a State in a substantial way," ante, at 737, but the established rule, which may be different than the Court's paraphrase, was articulated in Pennsylvania v. New Jersey, 426 U.S. 660, 665, 96 S.Ct. 2333, 2335, 49 L.Ed.2d 124 (1976) (per curiam) in these terms: "It has . . . become settled doctrine that a State has standing to sue only when its sovereign or quasi-sovereign interests are implicated and it is not merely litigating as a volunteer the personal claims of its citizens." In Oklahoma v. Cook, 304 U.S. 387, 394, 58 S.Ct. 954, 958, 82 L.Ed. 1416 (1938), Chief Justice Hughes stressed that the principle that a State may sue as parens patriae "does not go so far as to permit resort to our original jurisdiction in the name of the State but in reality for the benefit of particular individuals, albeit the State asserts an economic interest in the claims and declares their enforcement to be a matter of state policy."
57
Here the plaintiff States are not suing to advance a sovereign or quasi-sovereign interest. Rather they are suing to promote the economic interests of those of their citizens who purchase and use natural gas. Advancing the economic interests of a limited group of citizens, however, is not sufficient to support parens patriae original jurisdiction. In Oklahoma v. Atchison, T. & S. F. R. Co., 220 U.S. 277, 289, 31 S.Ct. 434, 437, 55 L.Ed. 465 (1911), the Court ruled that a State had no standing to challenge in an original action unreasonable freight rates imposed by citizens of another State affecting shippers within the State. In New Hampshire v. Louisiana, 108 U.S. 76, 2 S.Ct. 176, 27 L.Ed. 656 (1883), the Court rejected an effort by New Hampshire to collect as assignee on Louisiana state bonds, when the proceeds would end up in the hands of the assignors, New Hampshire citizens. And in North Dakota v. Minnesota, 263 U.S. 365, 44 S.Ct. 138, 68 L.Ed. 342 (1923), the Court turned back an effort by the plaintiff State to sue for flood damage to farmers' land. In my view this suit, brought to benefit state consumers of natural gas, is closer to these cases than those cited by the Court, Missouri v. Illinois, 180 U.S. 208, 241, 21 S.Ct. 331, 343, 45 L.Ed. 497 (1901) (health menace to entire State from spread of contagious diseases specifically noted); Kansas v. Colorado, 185 U.S. 125, 22 S.Ct. 552, 46 L.Ed. 838 (1902) (rights to water); Georgia v. Tennessee Copper Co., 206 U.S. 230, 27 S.Ct. 618, 51 L.Ed. 1038 (1907) (rights to air in unpolluted State).
58
The Court relies heavily on Pennsylvania v. West Virginia, 262 U.S. 553, 43 S.Ct. 658, 67 L.Ed. 1117 (1923), which it describes as "functionally indistinguishable" from the case before us. Ante, at 738-739. I think Pennsylvania v. West Virginia, decided over the dissents of Justices Holmes, Brandeis, and McReynolds, is readily distinguishable, "functionally" or otherwise. The harm in Pennsylvania v. West Virginia was the threatened complete cessation of deliveries of natural gas. This harmed all the citizens of the State, since it would have prevented any of them from purchasing the natural gas. The harm involved was also far more serious than the harm in this case. In Pennsylvania v. West Virginia, the harm was the complete halt in deliveries of a commodity upon which citizens of the plaintiff State depended. The opinion there stressed the direct link to the "health, comfort and welfare" of the citizens of Pennsylvania and the serious jeopardy they would be in if their supply of heating gas were suddenly cut off. 262 U.S., at 591-592, 43 S.Ct., at 663. Such a direct link to health and welfare is simply not present in this case. The distinction between an increase in the cost of a commodity passed on to consumers complained of here, and the complete cessation of a service upon which citizens depended, seems palpable.
III
59
The exercise of original jurisdiction in this case is particularly inappropriate since the issues the plaintiff States would have us decide not only can be, but in fact are being, litigated in other forums. Although this case would come within our original and exclusive jurisdiction if appropriate, the question whether it is appropriate depends in part on the availability of alternative forums. See Illinois v. Milwaukee, 406 U.S., at 93, 92 S.Ct., at 1387; Arizona v. New Mexico, 425 U.S. 794, 796-797, 96 S.Ct. 1845, 1846-47, 48 L.Ed.2d 376 (1976).5
60
The precise issues which the Court finds it somehow necessary to reach today are raised in actions which are currently pending in a Louisiana state court. An action by Louisiana seeking a declaratory judgment that its First-Use Tax is constitutional is pending, Edwards v. Transcontinental Gas Pipe Line Corp., No. 216,867 (19th Judicial Dist., East Baton Rouge Parish), is a refund suit brought by the 17 pipeline companies actually liable for the tax, Southern Natural Gas Co. v. McNamara, No. 225,533 (19th Judicial Dist., East Baton Rouge Parish). The pipeline companies raise in the Louisiana proceeding the identical challenges raised by the plaintiff States in the present case.6
61
In view of the foregoing I consider Arizona v. New Mexico, supra, controlling. There the Court declined to exercise original and exclusive jurisdiction over a suit brought by Arizona challenging injury to it and its citizens as consumers of electricity generated in New Mexico and subject to a New Mexico tax. As here, the tax was imposed on utilities, not directly on the consumers. The Court quoted language from Illinois v. Milwaukee, supra, and Massachusetts v. Missouri, 308 U.S. 1, 60 S.Ct. 39, 84 L.Ed. 3 (1939), concerning the sparing use of our original jurisdiction and the appropriateness of considering alternative forums, and noted that the utilities, like the pipeline companies here, had sued in state court. The Court concluded that "[i]n the circumstances of this case, we are persuaded that the pending state-court action provides an appropriate forum in which the issues tendered here may be litigated" (emphasis in original). 425 U.S., at 797, 96 S.Ct., at 1847. Although the Court in this case stresses that the plaintiff States are not parties in the Louisiana state-court proceedings, in Arizona v. New Mexico we specifically emphasized that the relevant question was whether the issues could be litigated elsewhere.
IV
62
The basic problem with the Court's opinion, in my view, is that it articulates no limiting principles that would prevent this Court from being deluged by original actions brought by States simply in their role as consumers or on behalf of groups of their citizens as consumers. Perhaps the principles sketched in this dissent are not the best limiting principles which could be devised, but the difficulty in developing such principles does not lessen the need for them. The absence of limiting principles in the Court's opinion, I fear, "could well pave the way for putting this Court into a quandary whereby we must opt either to pick and choose arbitrarily among similarly situated litigants or to devote truly enormous portions of our energies to such matters." Ohio v. Wyandotte Chemicals Corp., 401 U.S., at 504, 91 S.Ct., at 1012.7 The problem is accentuated in this case because it falls within our original and exclusive jurisdiction, which means that similar cases not only can be but must be brought here.
63
In conclusion I can do no better than quote from a dissent Justice Frankfurter penned under similar circumstances:
64
"Jurisdictional doubts inevitably lose force once leave has been given to file a bill, a master has been appointed, long hearings have been held, and a weighty report has been submitted. And, so were this the last as well as the first assumption of jurisdiction by this Court of a controversy like the present, even serious doubts about it might well go unexpressed. But if experience is any guide, the present decision will give momentum to kindred litigation, and reliance upon it beyond the scope of the special facts of this case. . . . [L]egal doctrines have, in an odd kind of way, the faculty of self-generating extension. Therefore, in picking out the lines of future development of what is new doctrine, the importance of these issues may make it not inappropriate to indicate difficulties which I have not been able to overcome and potential abuses to which the doctrine is not unlikely to give rise." Texas v. Florida, 306 U.S. 398, 434, 59 S.Ct. 563, 580, 83 L.Ed. 817 (1939).8
1
The earliest offshore oil production occurred in 1896 off the coast of California. The early ventures were extensions of onshore drilling projects. U.S. Dept. of Interior, Mineral Resource Management of the Outer Continental Shelf, Geological Survey Circular 720, p. 2 (1975). The first offshore well drilled from a mobile platform, the dominant technology used today, located out of sight from land was drilled 12 miles from the Louisiana coast in 1947. Ibid. In its proffer of evidence, the State of Louisiana estimated that there exist over 13,000 wells operating in OCS lands in the Gulf of Mexico. See Proffer of Proof of Louisiana to Special Master, 8. According to one source, 948 offshore wells were drilled off the coast of Louisiana in 1978. Braunstein & Allen, Developments in Louisiana Gulf Coast Offshore in 1978, 63 AAPG Bull. 1310 (Aug. 1979).
2
In 1970, South Louisiana, an area including both the onshore and offshore area adjacent to Louisiana, was responsible for the production of approximately 33% of domestic natural gas production. See Federal Power Comm'n, Bureau of Natural Gas, National Gas Supply and Demand, 1971-1990, Staff Rep. No. 2, pp. 20-22 (1972); J. Schanz & H. Frank, Natural Gas in the Future National Energy Pattern, in Regulation of the Natural Gas Producing Industry 18-19 (K. Brown ed.1972). As of 1973, over 25 trillion cubic feet of natural gas had been produced from Louisiana's offshore lands, with approximately 77% coming from federal OCS areas. Geological Survey Circular 720, supra, at 28 (Table 13). It has been estimated that the present reserves in the offshore area adjacent to the Gulf States is approximately 38 trillion cubic feet of gas. J. Hewitt, J. Knipmeyer, & E. Schluntz, Estimated Oil and Gas Reserves, Gulf of Mexico Outer Continental Shelf (U. S. Dept. of Interior, Geological Survey, Dec. 31, 1979).
3
See Proffer of Proof of Louisiana to Special Master 21 (Fact No. 43).
4
See id., at 11-13 (Facts Nos. 19-22).
5
Representatives from the State of Louisiana, as well as from other Gulf States, appeared before Congress in support of a measure to provide the States with a share of any income from that part of the OCS abutting their respective States. See Hearings on S. 1901 before the Senate Committee on Interior and Insular Affairs, 83d Cong., 1st Sess., 185-186, 187-188, 191-193, 265-266 (1953).
6
A thousand cubic feet of gas was defined, as is commonplace in the industry, as that amount of gas which occupies that volume at a temperature of 60 degrees Fahrenheit and 15.025 pounds per square inch of pressure absolute. La.Rev.Stat.Ann. § 47:1303(B) (West Supp.1981).
7
Estimates of the annual revenues from the First-Use Tax have varied. The plaintiff States and the United States estimated the annual receipts to be $225 million, while the pipeline companies suggested $275 million. See also, Note, The Louisiana First-Use Tax: Does It Violate the Commerce Clause?, 53 Tulane L.Rev. 1474 (1979) ($170 million); First-Use Tax, 31 La.Coastal L.Rep. No. 31 (Oct. 1978) ($185 million in first year).
Part II of the First-Use Tax Act created the First-Use Trust Fund. Receipts of the Tax were to be placed in the fund and expended in accordance with the terms of the Act. La.Rev.Stat.Ann. § 47:1351 (West Supp.1981). Specifically, the Act provided that 75% of the proceeds would go towards retirement of the general debt of the State. § 1351 A(2). Also 25% of the proceeds were to be deposited in a Barrier Islands Conservation Account to be used to fund capital improvements for projects designed to "conserve, preserve, and maintain the barrier islands, reefs, and shores of the Coastline of Louisiana." § 1351 A(3).
8
A taxable "use" was defined as:
"the sale; the transportation in the state to the point of delivery at the inlet of any processing plant; the transportation in the state of unprocessed natural gas to the point of delivery at the inlet of any measurement or storage facility; transfer of possession or relinquishment of control at a delivery point in the state; processing for the extraction of liquefiable component products or waste materials; use in manufacturing; treatment; or other ascertainable action at a point within the state." La.Rev.Stat.Ann. § 47:1302(8) (West Supp.1981).
9
The Severance Tax Credit bill was passed at the same time as the First-Use Tax, and provides as follows:
"A. (1) Every taxpayer liable for and remitting taxes levied and collected pursuant to [the First-Use Tax] and each taxpayer who bears such taxes as a direct result of contractual terms or agreements applied in disregard of R.S. 47:1303(C), shall be allowed a direct tax credit, at any time following payment of such tax, but, not in excess of the amount which must be borne by such taxpayer, against severance taxes owed by such taxpayer to the state, the amount of which credit shall not exceed the amount of severance taxes for which such taxpayer is liable to the state as a direct consequence of the privilege of severing natural resources from the surface of the soil or water of the state."
The tax credit also assigns the order in which the credit shall be applied depending on the type of severance credit paid. The credit is first applied to oil severance taxes and lists in descending order the other resources subject to severance tax credit. § 647 A(2). The tax credit does not affect any severance taxes assessed by the local parishes. § 647 C.
10
The statutory provision exempts from the tax credit provision any increases in wellhead price attributable to inflation.
11
See generally New York v. New Jersey, 256 U.S. 296, 309, 41 S.Ct. 492, 496, 65 L.Ed. 937 (1921) ("Before this court can be moved to exercise its extraordinary power under the Constitution to control the conduct of one State at the suit of another, the threatened invasion of rights must be of serious magnitude and it must be established by clear and convincing evidence").
12
As alleged in the complaint, the annual increase in natural gas costs directly associated with the First-Use Tax with respect to each of the plaintiff States is as follows: Maryland ($60,000); New York ($300,000); Massachusetts ($25,000); Rhode Island ($25,000); Illinois ($270,000); Indiana ($70,000); Michigan ($650,000); Wisconsin ($70,000); New Jersey ($20,000). See Complaint, at 12-16. Total direct injuries to the plaintiff States was estimated to be $1.5 million, and injury to the citizen consumers was estimated at $120 million. Id., at 16.
13
In approving the pass-through, the FERC did not accept the constitutionality of the First-Use Tax; FERC has consistently taken the position that the Tax is unconstitutional. Moreover, approval of the pass-through was expressly conditioned on the pipeline companies' taking legal action to determine the legality of the Tax, and to provide for refund to the customers should it be declared unconstitutional. Administrative proceedings before the FERC are continuing, and the agency has issued an order to show cause why the gas producers should not be required to pay the portion of the First-Use Tax relating to liquid or liquefiable hydrocarbons transported with or extracted from the gas subject to the Tax.
14
In Ohio v. Wyandotte Chemicals Corp., 401 U.S., at 497, 91 S.Ct., at 1009, the Court noted that "[a]s our social system has grown more complex, the States have increasingly become enmeshed in a multitude of disputes with persons living outside their borders. Consider, for example, the frequency with which States and nonresidents clash over the application of state laws concerning taxes, motor vehicles, decedents' estates, business torts, government contracts, and so forth. It would, indeed, be anomalous were this Court to be held out as a potential principal forum for settling such controversies."
15
The pipeline companies removed the case to federal court. Louisiana's motion to remand was granted, essentially on the ground that the intervention of the Federal District Court would be contrary to the provisions of the Tax Injunction Act, 28 U.S.C. § 1341. Edwards v. Transcontinental Gas Pipe Line Corp., 464 F.Supp. 654 (MD La.1979).
16
By granting plaintiffs' motions for leave to file, we rejected Louisiana's motions that the case should be dismissed. Moreover, when we referred the case to the Special Master we expressly referred to him all pending motions except for Louisiana's motion to dismiss. See 445 U.S. 913, 100 S.Ct. 1271, 63 L.Ed.2d 597 (1980). Usually, when we decline to exercise our original jurisdiction, we do so by denying the motion for leave to file. See Arizona v. New Mexico, 425 U.S. 794, 96 S.Ct. 1845, 48 L.Ed.2d 376 (1976). Although it is arguable that the Special Master was not empowered to consider Louisiana's motion since we did not refer the question to him, we nonetheless rely on his report in light of the fact that we must consider Louisiana's motion to dismiss on the merits in any event, and because the matter went forward before the Special Master on the assumption that the motion to dismiss had been referred. Accordingly, we now see no reason not to acquiesce in the Special Master's views that the issues were properly before him.
17
See Tr. of Oral Arg. 55-58. It is acknowledged that but for the "invitation" there exists no procedural mechanism in Louisiana for the plaintiff States or the United States to be made parties to the state refund suit.
18
In Pennsylvania v. New Jersey, 426 U.S. 660, 96 S.Ct. 2333, 49 L.Ed.2d 124 (1976), we denied leave to file to a number of States challenging commuter income tax provisions adopted by certain other States. That case, however, clearly has no applicability to the present action. In Pennsylvania, the only reason that the complaining States were denied tax revenues was because their legislatures had determined to give a credit for taxes paid to other States, and, to this extent, any injury was voluntarily suffered. Id., at 664, 96 S.Ct., at 2335. Moreover, jurisdiction was not proper under the parens patriae doctrine since the claims represented the aggregation of individual claims for wrongfully paid taxes which the individual commuter taxpayers were able to contest. Id., at 665-666, 96 S.Ct., at 2335-2336. See generally Massachusetts v. Missouri, 308 U.S. 1, 19-20, 60 S.Ct. 39, 43-44, 84 L.Ed. 3 (1939). In this case, the plaintiff States are not responsible in any way for the economic impact of the Tax. Moreover, unlike the situation in Pennsylvania, individual citizens have no forum in which to challenge the Tax because they did not directly pay the Tax and are not entitled to bring refund actions in Louisiana.
19
Despite the fact that these parties have been invited to intervene, see n. 17, supra, the Louisiana refund action is an imperfect forum, primarily because no injunctive relief prior to the determination on the merits is possible under Louisiana law. See La.Rev.Stat.Ann. §§ 47:1575, 47:1576 (West 1970 and Supp.1981).
20
See 425 U.S., at 798, 96 S.Ct., at 1847 (STEVENS, J., concurring).
21
We note in passing that Louisiana's other arguments against the exercise of our original jurisdiction are lacking in merit. First, our original jurisdiction is not affected by the provisions of the Eleventh Amendment which only withholds federal judicial power in suits against a State "by Citizens of another State, or by Citizens or Subjects of any Foreign State." Thus, an original action between two States only violates the Eleventh Amendment if the plaintiff State is actually suing to recover for injuries to specific individuals. Hawaii v. Standard Oil Co., 405 U.S. 251, 258-259, n. 12, 92 S.Ct. 885, 889, n. 12, 31 L.Ed.2d 184 (1972). Second, the Tax Injunction Act, which by its terms only applies to injunctions issued by federal district courts, 28 U.S.C. § 1341, is inapplicable in original actions. We thus reject Louisiana's exceptions based on these grounds.
Louisiana also excepted to each of the recommendations made by the Special Master in his first report concerning various preliminary matters. Given the above determination on Louisiana's motion to dismiss, we reject each of Louisiana's exceptions and adopt the recommendations contained in the Special Master's first report. Specifically, we agree that New Jersey, whose allegations of injury are identical to that of the original plaintiff States, clearly has standing and should be permitted to intervene. Second, we believe that the United States' interests in the operation of the OCS Act and the FERC's interests in the operation of the Natural Gas Act are sufficiently important to warrant their intervention as party plaintiffs, see supra, this page. We have often permitted the United States to intervene in appropriate cases where distinctively federal interests, best presented by the United States itself, are at stake. See, e. g., Arizona v. California, 344 U.S. 919, 73 S.Ct. 385, 97 L.Ed. 708 (1953); Oklahoma v. Texas, 253 U.S. 465, 40 S.Ct. 580, 64 L.Ed. 1015 (1920). Third, the Master recommended that we grant the motion of 17 pipeline companies to intervene as plaintiffs. Given that the Tax is directly imposed on the owner of imported gas and that the pipelines most often own the gas, those companies have a direct stake in this controversy and in the interest of a full exposition of the issues, we accept the Special Master's recommendation that the pipeline companies be permitted to intervene, noting that it is not unusual to permit intervention of private parties in original actions. See Oklahoma v. Texas, 258 U.S. 574, 42 S.Ct. 406, 66 L.Ed. 771 (1922). Cf. Trbovich v. Mine Workers, 404 U.S. 528, 536-539, 92 S.Ct. 630, 635-636, 30 L.Ed.2d 686 (1972). Finally, we agree with the Special Master that the Associated Gas Distributors should be permitted to file an amicus brief.
22
The Natural Gas Policy Act of 1978 was enacted to alleviate the adverse economic effects of the disparate treatment of intrastate and interstate natural gas sales. Under 15 U.S.C. § 3320 (1976 ed., Supp.III), a price for the first sale of gas shall not be considered to exceed the maximum lawful price if it is necessary to recover "any costs of compressing, gathering, processing, treating, liquefying, or transporting such natural gas, or other similar costs, borne by the seller and allowed for, by rule or order, by the Commission."
Plaintiffs also argue that the entire scheme of taxation in Louisiana with its series of tax credits and exemptions, see text, infra, at 756-758, necessarily interferes with the FERC's comprehensive authority to regulate the price of gas. The Special Master determined that the decision was difficult to make given the fact that the FERC had permitted the cost to be passed on. The Special Master concluded that it may ultimately be decided that some of the costs are beyond the reach of the FERC, or that the Tax is not a "substantial hindrance" to the Commission. We do not need to reach plaintiffs' exception on this point given our resolution on the other issues presented.
23
Section 1303 C provides:
"[The First-Use Tax] shall be deemed a cost associated with uses made by the owner in preparation of marketing of the natural gas. Any agreement or contract by which an owner of natural gas at the time a taxable use first occurs claims a right to reimbursement or refund of such taxes from any other party in interest, other than a purchaser of such natural gas, is hereby declared to be against public policy and unenforceable to that extent. Notwithstanding any such agreement or contract, such an owner shall not have an enforceable right to any reimbursement or refund on the basis that this tax constitutes a cost incurred by such owner by virtue of the separation or processing of natural gas for extraction of liquid or liquefiable hydrocarbons, or that this tax constitutes any other grounds for reimbursement or refund under such agreement or contract, unless there has been a final and unappealable judicial determination that such owner is entitled to such reimbursement or refund, notwithstanding the public policy and purpose of this part and the foregoing provisions of this Subsection C. In any legal action pursuant to this Subsection, the state shall be an indispensable party in interest."
24
See Mobil Oil Corp. v. FPC, 157 U.S.App.D.C. 235, 238-240, 483 F.2d 1238, 1241-1243 (1973); Detroit v. FPC, 97 U.S.App.D.C. 260, 269-271, 230 F.2d 810, 819-821 (1955), cert. denied, 352 U.S. 829, 77 S.Ct. 34, 1 L.Ed.2d 48 (1956); Union Oil Company of California, Docket No. CI77-828 et al., p. 11 (FERC, Apr. 12, 1978); Canadian Superior Oil (U.S.) Ltd., Docket No. CI77-802 et al., p. 4 (FERC, Mar. 28, 1978); Tennessee Gas Pipeline Co., 38 F.P.C. 691, 698 (1967); Continental Oil Co., 27 F.P.C. 96, 107-108 (1962). Removal reduces both the volume and heat content of the natural gas ultimately received by the gas consumers. See Area Rate Proceeding, 40 F.P.C. 530, 611 (1968), aff'd, 428 F.2d 407 (CA5), cert. denied, 400 U.S. 950, 91 S.Ct. 243, 27 L.Ed.2d 257 (1970).
25
It is no answer to note that the FERC has administratively determined that the Tax may be passed on. The agency's position is that the Tax is unconstitutional as an invasion of its authority; and as a condition for permitting the pipeline companies to pass the Tax through to consumers, has required that the companies "undertak[e] . . . all legal action to determine the constitutionality of the tax," and secure means for an effective refund should any taxes paid be returned upon a final finding that the Tax was unconstitutional. 43 Fed.Reg. 45553 (1978).
26
The United States argues that once § 1303 C is found unconstitutional the entire Act falls under § 4 of the Act which provides that in the event of a "final and unappealable judicial decision" upholding the right of any owner to "enforce a contract or agreement otherwise rendered unenforceable by R.S. 47:1303(C)," the following consequences would occur:
"(2) If the right upheld arises from the provisions of a contract or agreement requiring any other party to reimburse or refund to an owner costs or expenses incurred by such owner by virtue of separation or processing of natural gas for extraction of liquid or liquefiable hydrocarbons, then this Act shall be null and void and the secretary shall forthwith return to each taxpayer all taxes previously paid, together with interest at the rate of six percent per annum from the date of payment." Since a specific contractual provision is not involved here, the precise terms of the Louisiana statute are not met despite the fact that a final and unappealable determination of the unconstitutionality of § 1303 C has been made. Accordingly, we are not in position, based on the provision contained in § 4, to determine that the entire Act is null and void.
Plaintiff States, as well as the pipeline companies, also press another Supremacy Clause issue, contending that the First-Use Tax is inconsistent with the OCS Act, 43 U.S.C. §§ 1331-1356 (1976 ed. and Supp.III). Under § 1332, it is declared to be the policy of the United States that "the subsoil and seabed of the outer Continental Shelf appertain to the United States and are subject to its jurisdiction, control, and power of disposition as provided in this subchapter." Section 1333(a)(1) expressly extends the Constitution and laws of the United States to the subsoil and seabed of the shelf. While the Act borrows "applicable and not inconsistent" state laws for certain purposes, such as were necessary to fill gaps in federal laws, see Rodrigue v. Aetna Casualty & Surety Co., 395 U.S. 352, 355-359, 89 S.Ct. 1835, 1836-39, 23 L.Ed.2d 360 (1969), it expressly declares that "[s]tate taxation laws shall not apply to the outer Continental Shelf." § 1333(a)(2)(A). Moreover, the OCS Act provides that the provision for adopting state law "shall never be interpreted as a basis for claiming any interest in or jurisdiction on behalf of any State for any purpose over the seabed and subsoil of the outer Continental Shelf, or the property and natural resources there of or the revenues therefrom." § 1333(a)(3). By passing the OCS Act, Congress "emphatically implemented its view that the United States has paramount rights to the seabed beyond the three-mile limit. . . ." United States v. Maine, 420 U.S. 515, 526, 95 S.Ct. 1155, 1161, 43 L.Ed.2d 363 (1975).
Plaintiff States contend that despite the fact that the First-Use statute declares that it is not taxing the gas itself and thus is not a state-imposed severance tax on OCS production, the inevitable intent and result of the Act is to impose a tax on the OCS production in contravention of the express prohibition of the OCS Act. It is clear that a State has no valid interest in imposing a severance tax on federal OCS land. In part, Louisiana purports to justify the Tax
as a means of alleviating the alleged discrimination against Louisiana gas caused by the fact that Louisiana gas must pay the state severance tax while OCS gas does not. But if correcting the claimed imbalance were the sole justification asserted for the First-Use Tax, there would be grave doubt about the validity of the Tax. The proper fee or charge for drilling for gas on the OCS is a determination which is solely within the province of the Federal Government. Even if the United States were to decide to open up development to all comers at no charge in order to spur development of natural gas, Louisiana would have no interest in overriding that decision by imposing a tax to equalize the cost of local production with that on the federal OCS area. Permitting the States to exercise such power would adversely affect the price which the Government could command from private developers in their bid price. As clearly required by the OCS Act, Louisiana's sovereign interest in the development of offshore mineral interests stops at its 3-mile border. Louisiana, however, presses certain environmental interests as well in support of its First-Use Tax, and in light of this submission, we do not resolve the issue whether the Tax necessarily infringes on the sovereign interests of the United States in the OCS.
The intervening pipeline companies also argue that Louisiana has no valid environmental interest in imposing the First-Use Tax since the measure is pre-empted by the Coastal Zone Management Act of 1972, 86 Stat. 1280, as amended, 16 U.S.C.A. §§ 1451-1464 (1974 and Supp.1981). The Coastal Zone-Management Act provides federal funds to compensate States for environmental damage occurring as a result of offshore energy development to States which agree to comply with the standards mandated by the Act. The importance of the concerns for environmental damage are expressly recognized in the OCS Act. See 43 U.S.C. § 1332(4)(A) (1976 ed., Supp.III). We need not reach this contention in light of our disposition of the other claims, and to this extent the exceptions of the plaintiff States and the pipeline companies are overruled.
27
The United States suggests that the uses enunciated in the Act do not have a sufficient local nexus to support the Tax under the Commerce Clause. See Michigan-Wisconsin Pipe Line Co. v. Calvert, 347 U.S. 157, 74 S.Ct. 396, 98 L.Ed. 583 (1954). While the local nexus of certain of the uses is suspect, other uses would appear to have a substantial local nexus so that on the present record it would be difficult to say that the entire Tax was unconstitutional on this ground. The Act contains a severability clause providing that if any use is found to be an unconstitutional basis for taxation, the next use would be taxed. See La.Rev.Stat.Ann. § 47:1303 F (West Supp.1981). Given our resolution on the discrimination charge, we find it unnecessary to reach the local nexus claim especially in light of the severability clause. To this extent, the exception of the United States and the FERC is overruled.
The United States and the plaintiff States also argue that the First-Use Tax is not fairly apportioned. To be valid, a tax on interstate commerce must be reasonably apportioned to the value of the activities occurring within the State upon which the Tax is imposed. See Washington Revenue Dept. v. Washington Stevedoring Ass'n, 435 U.S. 734, 746-747, 98 S.Ct. 1388, 1397-98, 55 L.Ed.2d 682 (1978). It is submitted that several factors suggest this principle is being violated. First, the Tax is imposed on each use as a function of the volume of the gas subject to the use, without attempting to tailor the amount of the Tax depending on the nature or extent of the actual use of the gas within Louisiana. Second, the use of the proceeds of the First-Use Tax demonstrates that the Tax is substantially in excess of the amount fairly associated with the local uses. Under the Act, 75% of the proceeds are used to service Louisiana's general debt, while only one-quarter is directly used to alleviate the alleged environmental damage caused by the pipeline activities. Third, the State has not demonstrated a sufficient relationship between other services provided by the State and the amount of the First-Use Taxes provided. In light of our determination that the Tax is discriminatory, however, we need not determine the apportionment issue. The exceptions of the United States, the FERC, and the plaintiff States to this extent are also overruled.
28
The United States has provided an example which the Special Master used to illustrate the possible discrimination:
"This difference can be illustrated by the following example. Owner A has 1000 mcf of OCS gas; owner B has 500 mcf of OCS gas and 500 mcf of gas subject to Louisiana's severance tax. A owes $70 of first use tax; B owes $35 of first use tax and $35 in severance tax. B, however, pays only $35 in first use taxes. He owes no severance tax because he can credit the first use payment against the severance tax liability." Second Report, at 34, n. 18.
It has been observed that the credit means that "gas extracted offshore and gas extracted in Louisiana will be treated the same for Louisiana tax purposes only when the First Use Taxpayer has no severance tax liability to absorb the First Use Taxes." As a result, First-Use Taxpayers have an incentive to "undertake mineral extraction activities in Louisiana so as to minimize their effective First Use Tax burden and to compete on equal terms with other First Use Taxpayers whose First Use Tax burden has already been so minimized." W. Hellerstein, State Taxation in the Federal System: Perspectives on Louisiana's First Use Tax on Natural Gas, Shell Foundation Lecture at Tulane University School of Law (Nov. 20, 1980), pp. 23-24.
29
Of course, § 1303 C itself may result in substantial discrimination since owners of gas subject to the state severance tax are not prohibited from allocating that cost to someone other than the ultimate consumer.
1
It is true that in this case the Court decides that judgment on the pleadings is appropriate, and that therefore it is not necessary to conduct a trial. I do not understand the Court, however, to be ruling that original jurisdiction is appropriate only when a trial is not necessary, and therefore in accepting original jurisdiction of this case the Court opens the door to similar cases which may necessitate a trial.
2
Experience teaches that these are not empty concerns. See, e. g., New Hampshire v. Louisiana, 108 U.S. 76, 89, 2 S.Ct. 176, 182, 27 L.Ed. 656 (1883) (State suing as assignee of bondholders, bondholders funding lawsuit and to collect any award); North Dakota v. Minnesota, 263 U.S. 365, 375, 44 S.Ct. 138, 139, 68 L.Ed. 342 (1923) (State suing for flood damage to farmers' land, farmers funding lawsuit and to collect any award).
3
Requiring that a State's claim implicate sovereignty interests also serves the oft-repeated expression in our opinions that the Court will not interfere with action by one State unless the injury to the complaining State is of "serious magnitude." See Alabama v. Arizona, 291 U.S. 286, 292, 54 S.Ct. 399, 401, 78 L.Ed. 798 (1934); Colorado v. Kansas, 320 U.S. 383, 393, and n. 8, 64 S.Ct. 176, 181, 88 L.Ed. 116 (1943). The Court cites this concern, ante, at 736, n. 11, but does not explain why a tax of seven cents per thousand cubic feet of gas is an injury of "serious magnitude."
4
It is true that the Court has exercised original jurisdiction in cases where the right asserted by a complaining State cannot truly be considered a right affecting sovereign interests. I do not doubt the Court's power to exercise original jurisdiction in such cases, nor do I in this case. The decision that a particular type of case was an "appropriate" one for original jurisdiction a century ago, however, does not mean that the same sort of case is an appropriate one today. Justice Harlan explicitly recognized in Ohio v. Wyandotte Chemicals Corp., 401 U.S. 493, 497-499, 91 S.Ct. 1005, 1009-1010, 28 L.Ed.2d 256 (1971), that societal changes and "the evolution of this Court's responsibilities in the American legal system" affected the determination of what was an appropriate case in which to exercise original jurisdiction. The increase in state regulatory efforts on the one hand and the role of States as consumers on the other suggests that new considerations need to be brought to bear on the present question.
5
The Court's dismissal of the significance of Illinois v. Milwaukee and Ohio v. Wyandotte Chemicals Corp. as cases not within the exclusive jurisdiction of this Court thus simply does not wash. Illinois v. Milwaukee indicated the appropriateness of considering the existence of alternative forums in the context of original and exclusive jurisdiction. Arizona v. New Mexico makes the appropriateness of such consideration in original and exclusive jurisdiction cases quite clear.
6
The fact that the pipeline companies have seen fit to bring suit on their own behalf undermines the analysis of the Court that the consumers of the gas, both the States and the States' citizens, are the real parties in interest. The pipeline companies obviously have a sufficient interest to justify their suit.
7
It is hardly satisfactory simply to note, as does the Court, that "the issue of appropriateness in an original action between States must be determined on a case-by-case basis." Ante, at 743.
8
Because of my views on the jurisdictional question I find it unnecessary to address the merits of this case, beyond noting that the pressure in original actions to avoid factual inquiries which this Court of course cannot make may go far to explain the entry of judgment on the pleadings over the ruling by the Special Master that further factual development is necessary to a proper resolution of the issues.
| 78
|
452 U.S. 105
101 S.Ct. 2211
68 L.Ed.2d 706
Wayne MINNICK et al., Petitioners,v.CALIFORNIA DEPARTMENT OF CORRECTIONS et al.
No. 79-1213.
Argued Dec. 2, 1980.
Decided June 1, 1981.
Syllabus
Petitioners, two white male correctional officers employed by the California Department of Corrections and an organization representing correctional officers and some other Department employees, filed suit in California state court against respondents, the Department and various state officers, alleging that the Department's affirmative-action plan unlawfully discriminated against white males and that the individual petitioners had been denied promotions because of race. On the basis of the California Supreme Court's decision in Bakke v. University of California Regents, 18 Cal.3d 34, 132 Cal.Rptr. 680, 553 P.2d 1152, the trial court enjoined respondents from giving any preference on the basis of race or sex in hiring or promoting any employee, but allowed the use of race or sex as a factor in making job assignments. On respondents' appeal, the California Court of Appeal reversed, holding that the trial court's rationale was no longer tenable in view of this Court's intervening decision in University of California Regents v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750. However, the Court of Appeal did not unequivocally direct that judgment be entered for respondents, but left certain questions open for "examination if the case is to be retried."
Held : This Court's writ of certiorari, granted to review the merits of the Court of Appeal's decision, is dismissed. Because of significant developments in the law and because of significant ambiguities in the record concerning both the extent to which race or sex has been used as a factor in making promotions and the justification for such use, the constitutional issues should not be addressed until the trial court's proceedings are finally concluded and the state appellate courts have completed their review of the trial court record. Pp. 120-127.
Certiorari dismissed. Reported below: 95 Cal.App.3d 506, 157 Cal.Rptr. 260.
Ronald Yank, San Francisco, Cal., for petitioners.
Stuart R. Pollak, San Francisco, Cal., for respondents.
Justice STEVENS delivered the opinion of the Court.
1
Petitioners contend that an affirmative-action plan adopted by the California Department of Corrections in 1974 is unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. The trial court agreed and entered judgment in petitioners' favor. The California Court of Appeal reversed, 95 Cal.App.3d 506, 157 Cal.Rptr. 260, holding that the trial court's rationale was no longer tenable in light of this Court's intervening decision in University of California Regents v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750. The Court of Appeal's opinion, however, also identified certain problems that "require examination if the case is to be retried." Thus although we granted certiorari to review the merits of the Court of Appeal's decision, 448 U.S. 910, 100 S.Ct. 3055, 65 L.Ed.2d 1139, we first must confront the question whether the writ should be dismissed because the judgment did not finally determine the legal status of the challenged plan.
2
* The 1974 "Affirmative Action Program," as revised in 1975, is a lengthy and somewhat ambiguous document. Much of the plan relates to the Department's commitment to the eradication of discrimination on the basis of race and sex. The plan's first section, which describes the program in general terms, states:
3
"It is the policy of the Department of Corrections to provide equal employment opportunities for all persons on the basis of merit and fitness and to prohibit discrimination based on race, sex, color, religion, national origin, or ancestry in every aspect of personnel policy and practices in the employment, career development, advancement and treatment of employees."1
4
This section of the plan then identifies specific means of implementing this general nondiscriminatory policy.2 The second section of the plan, which establishes guidelines for the implementation of the program within the existing organizational structure and defines the affirmative-action roles of Department employees, also contains a number of provisions suggesting that the plan was intended to remove any barriers to equal employment opportunities.3 Finally, the third section, which identifies specific objectives of the plan, also refers to departmental efforts to eliminate discrimination in hiring and in employment practices.4
5
The plan does, however, contain some indication that the Department intended to go beyond the eradication of discriminatory practices. The second section states that deputy directors, assistant directors, and division chiefs were to be responsible for developing a plan to "correct identifiable . . . deficiencies through specific, measurable, attainable hiring and promotional goals with target dates in each area of underutilization."5 The plan also refers to "guidelines" issued by the Law Enforcement Assistance Administration of the United States Department of Justice (LEAA) indicating "that an Agency's percentage of minority personnel should be at least 70% of that minority in its service (inmate population)."6 Moreover, the plan notes that in "the total labor force in California, 38.1% are female; Department of Corrections' personnel reflect a total of only 17.3%."7 The section of the plan containing objectives indicates a commitment by the Department to "[i]ncrease departmental efforts to employ minorities and women to achieve the percentages . . . per LEAA guidelines within five (5) years," and to achieve a work force containing 36% minorities and 38% women.8 The plan does not identify what means, in addition to eradicating discriminatory practices, the Department would employ to achieve these percentages. Thus, the plan may be interpreted as predicting that a nondiscriminatory policy would result in a work force including 36% minority and 38% female employees by 1979; alternatively, it may be read as mandating affirmative action to achieve these percentages by the target date.9
II
6
In December 1975 the three petitioners commenced this litigation in a California Superior Court. Minnick and Darden, the individual petitioners, are white male correctional officers. The third petitioner, the California Correction Officers Association (CCOA), is an employee organization that represents correctional officers and some other employees of the Department. In their complaint petitioners alleged that the affirmative-action plan unlawfully discriminated against white males and that the individual petitioners had been denied promotions because they were white.
7
The California Department of Corrections and various state officers named as defendants, respondents here, denied in the trial court that they had discriminated in hiring and promotion and claimed that the Department's central policy was to hire and promote only the most qualified persons.10 Alternatively, however, the respondents contended that the State's interest in the efficient and safe operation of the corrections system justifies an attempt to obtain a work force containing a proportion of minority employees amounting to at least 70% of any minority's proportional representation in the inmate population, and also containing as large a percentage of female employees as are found in the total California work force.11 During pretrial discovery, respondents also indicated that the impact of their past practices had resulted in a disproportionate hiring and promotion of white males, but stated "for the purposes of this litigation" that they did not allege that the Department had engaged in any past intentional discrimination against minority or female workers.12
8
After a trial at which over 30 witnesses testified, the case was argued at length and submitted to the trial judge for decision on November 23, 1976. At that time the Supreme Court of California had only recently held in Bakke v. University of California Regents, 18 Cal.3d 34, 132 Cal.Rptr. 680, 553 P.2d 1152 (1976), that the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution prohibited a state university from giving any consideration to an applicant's race in making admissions decisions.
9
On January 5, 1977, the trial judge issued a "notice of intended decision" which tersely summarized the parties' respective positions:
10
"The testimony and documentary evidence herein show, and defendants admit, that defendants have carried on a campaign to, and they do now, select applicants for employment and for promotion based on their sex and on their racial background or ancestry.
11
"Defendants seek to justify their actions on the basis that while the sex of an applicant is one of the factors considered, the applicant must be otherwise qualified for the duties to be performed. Sex or racial background is not the sole factor considered. Plaintiffs on the other hand assert that the hiring or promotion of a person based in whole or in part on sex or racial background or ancestry is unconstitutional and void.
12
"The Court agrees with plaintiffs." App. to Pet. for Cert. D-1--D-2.
13
The notice then directed that an injunction issue enjoining the respondents "from considering as a factor for employment or for the promotion of a candidate his sex, race or national origin." Id., at D-2. The court directed counsel to prepare an appropriate order and to submit proposed findings of fact and conclusions of law.
14
Before any further order was entered, respondents filed a motion to reopen the record and to receive detailed evidence of past discriminatory practices.13 Presumably the proffered evidence would provide support for a defense based on the theory that the plan was justified as a remedy for past discrimination. The evidence was, however, quite plainly irrelevant to the theory of the trial judge's intended decision which was, of course, wholly consistent with the rationale of the California Supreme Court's opinion in Bakke, supra. The trial judge summarily denied the motion to reopen.
15
On October 11, 1977, the trial court entered findings of fact and conclusions of law, a declaratory judgment, and a permanent injunction. Id., at F-1, G-1. The court did not find that either of the individual petitioners had been denied a promotion on the basis of his race or sex. Nor did the court find that the CCOA had standing to bring the action. Two of the findings that the court did enter (No. 8 relating to hiring and promotions and No. 19 relating to job assignments) are especially relevant to the procedural issue before us.
Finding No. 8 provides, in part:
16
"Defendants Department of Corrections and Jeri J. Enomoto have discriminated and are continuing to discriminate by reason of sex and by reason of ethnic background in hiring and promotion of employees in the Department.
17
* * * * *
18
"In so doing, preferences result in favor of certain ethnic groups, or in favor of one sex to the detriment of the other, and not solely on the qualifications of the individuals involved, on their merits." Id., at F-4.
Finding No. 19 provides:
19
"The unique and sensitive nature of the functions of the Department of Corrections and the peculiar difficulties inherent in the administration of California's prison system require the Department to exercise broad discretion in making job assignments and in determining the employment responsibilities of its employees. Because of the conditions and circumstances within California prisons and throughout the Department of Corrections, in making job assignments and in determining employment responsibilities it is necessary for the Department to consider, among other factors, the composition of the existing work force and of the inmate population, and the race and sex of employees, in order to serve the compelling state interest in promoting the safety of correctional officers and inmates, encouraging inmate rehabilitation, minimizing racial tensions, and furthering orderly and efficient prison management." Id., at F-6--F-7.
20
In the conclusions of law and in the permanent injunction, the trial court distinguished hiring and promotion decisions, on the one hand, from job assignments and determination of employment responsibilities, on the other. Finding No. 19 relates only to the latter and provides the basis for the trial court's conclusion that respondents could lawfully consider race and sex as factors in determining job assignments and job responsibilities.14 That finding also explains the proviso in the permanent injunction allowing the use of race or sex as a factor in making job assignments.15 Finding No. 8, however, provides the central support for the permanent injunction against giving any preference, advantage, or benefit on the basis of race or sex in hiring or promoting any employee.16
III
21
Respondents appealed to the California Court of Appeal. While their appeal was pending, this Court issued its decision in University of California Regents v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750. Although we affirmed the judgment of the California Supreme Court to the extent that it had ordered the University to admit Bakke to its medical school, the opinions supporting that decision indicated that at least five Members of the Court rejected the legal theory on which the California Supreme Court had relied. Specifically, both the opinion of Justice BRENNAN, Justice WHITE, Justice MARSHALL, and Justice BLACKMUN and the opinion of Justice POWELL unequivocally stated that race may be used as a factor in the admissions process in some circumstances.17 To the extent that those opinions demonstrated that the California Supreme Court's interpretation of the Fourteenth Amendment was erroneous, they also demonstrated that the trial judge's faithful application of that court's Bakke rationale in this case was an insufficient basis for supporting the injunction.
22
With the guidance of this Court's decision in Bakke, the California Court of Appeal reversed the judgment and the injunction entered by the trial court in this case. Relying largely on Justice POWELL's opinion in Bakke, the Court of Appeal concluded that race or sex could be used as a "plus" factor in personnel decisions that promoted a compelling state interest.18 The court seemed to indicate that the trial court's finding No. 19 supported a conclusion that the State's interest in a safe and efficient prison system constituted such an interest.19
23
With respect to the challenge to hiring procedures, the Court of Appeal concluded that the evidence was insufficient to support finding No. 8 insofar as that finding related to preferences in favor of males over females or insofar as itrelated to the hiring of any employees.20 References to the possibility of a retrial in other portions of the opinion,21 imply that petitioners will have an opportunity to remedy any deficiencies in their proof of sex discrimination or racial discrimination in hiring.
24
With respect to the challenge to promotion practices, the Court of Appeal apparently believed that the trial court's finding of discrimination in finding No. 8 was inconsistent with the trial court's finding No. 19.22 Although finding No. 19 clearly applies only to transfers, the court seems to have read that finding to identify a compelling state interest and then to have determined that the evidence adequately justified the use of race as a plus factor for promotions as well as transfers. The court, however, may have merely intended to identify a permissible analysis of the record that will be open to the trial court on remand.23 If a final and definitive determination of the federal issue was actually intended, it is difficult to understand why the court left open the possibility of retrial and did not unequivocally direct that judgment be entered in favor of respondents.
25
Recognizing that the evidence of past discrimination that had been proffered by respondents might be relevant in support of a defense that the affirmative-action program was justified as a remedy for past discrimination within the Department of Corrections,24 the Court of Appeal also left open for the retrial the question whether that evidence should be received. Finally, the Court of Appeal rejected each of petitioners' contentions that a violation of state law or federal statutory law had been proved, and then concluded by noting that jurisdictional problems concerning petitioners' standing "require examination if the case is to be retried."25
IV
26
In this Court respondents, as well as the Solicitor General on behalf of the United States as amicus curiae, urge us to dismiss the writ because the judgment of the Court of Appeal is not final.26 See Gospel Army v. Los Angeles, 331 U.S. 543, 67 S.Ct. 1428, 91 L.Ed. 1662. The judgment is clearly not final in the sense that no further proceedings can possibly take place in the state judicial system. Petitioners argue, however, that there is finality under our cases because the ultimate judgment on the federal issue is for all practical purposes preordained. This argument is supported by a representation made by petitioners' counsel at oral argument in this Court that the record already contains all of the evidence that they are prepared to offer.27 Nevertheless, we are not persuaded that the outcome of further proceedings in the trial court can be characterized as "certain" or that these proceedings will not have a significant effect on the federal constitutional issues presented by the certiorari petition.28 In Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328, this Court identified four categories of cases in which a state court's decision of a federal issue had been treated as a final judgment even though additional proceedings in the state trial court were anticipated. Petitioners contend that this case falls within the first of those categories—that it is a case in which "for one reason or another the federal issue is conclusive or the outcome of further proceedings is preordained."29 That category is, however, delimited by a preliminary comment in the Cox opinion:
27
"In the cases in the first two categories considered below, the federal issue would not be mooted or otherwise affected by the proceedings yet to be had because those proceedings have little substance, their outcome is certain, or they are wholly unrelated to the federal question." Id., at 478, 95 S.Ct., at 1037.
28
The answer to the question whether the further proceedings in the state trial court "have little substance" or are "wholly unrelated to the federal question" is affected not only by the specifics of the particular litigation but also by the extent to which the "policy of strict necessity in disposing of constitutional issues," Rescue Army v. Municipal Court, 331 U.S. 549, 568, 67 S.Ct. 1409, 1419, 91 L.Ed. 1666, is implicated.30 In that case, notwithstanding a conclusion that the Court had jurisdiction to entertain the appeal, id., at 565-568, 67 S.Ct., at 1417-1419, the Court's analysis of the policy of strict necessity provided "compelling reasons for not exercising" its mandatory appellate jurisdiction. Id., at 568, 67 S.Ct., at 1419. Those reasons were the "highly abstract form" in which the constitutional issues were presented, id., at 575-580, 67 S.Ct., at 1423-1425, the "ambiguous" character of the California court's construction of the Los Angeles Municipal Code, id., at 581-584, 67 S.Ct., at 1425-1427, and a belief that further proceedings in the state court would ultimately tender "the underlying constitutional issues in clean-cut and concrete form." Id., at 584, 67 S.Ct., at 1427.
29
In this case our analysis of the question whether the federal constitutional issues may be affected by additional proceedings in the state courts—and therefore take the case out of the first category of final judgments described in Cox—is similarly affected by ambiguities in the record, both as to the character of the petitioners' prima facie case and as to the character of the respondents' justification for their program.
30
Petitioners contend that the program was designed to give minority employees specific proportions of the available jobs in the Corrections Department. The trial court found that respondents "have discriminated and are continuing to discriminate by reason of sex and by reason of ethnic background in hiring and promotion of employees in the Department."31 Although that finding also recited that the discrimination was "motivated at least in part" by the affirmative-action plan, it did not indicate the extent to which such discrimination had occurred. Because the trial court interpreted the relevant constitutional law absolutely to prohibit any such discrimination in hiring or promotion, the court did not need to make any more specific finding. Several assumptions would therefore be consistent with the general finding of discrimination. One could assume either that all hiring and promotion decisions have been affected by the goal of achieving certain percentage quotas as to race and sex, or that race or sex has been a factor in only certain specific decisions. Included in the latter assumption are the two possibilities that race or sex was a factor in a fairly large number of random decisions, or that race or sex was a motivating factor only in connection with certain types of jobs with respect to which the Superior Court expressly permitted transfers or job assignments motivated by either the race or sex of the employee.32 In sum, the Superior Court's findings do not go beyond a determination that there was some discrimination in hiring and promotion.
31
If we accept the Court of Appeal's interpretation of the record, we must assume that the respondents have used race as a factor in making promotion decisions but not in making hiring decisions.33 Like the findings of the Superior Court, however, the opinion of the Court of Appeal does not indicate whether race was considered relevant for all promotions or just in connection with promotions to particular positions. The fact that the Court of Appeal relied on the finding that race was a relevant factor in making certain job assignments to justify the use of race or sex in connection with promotions implies that the court thought race or sex had been a factor only in making promotions to a limited number of positions.34 But the court did not so state expressly and it did not identify any specific position to which promotions or transfers motivated by race or sex had been made.
32
Thus on the one hand, if the first interpretation of the opinion is correct, and race was relevant only in making certain specific decisions, then adequate review of a narrow holding of that kind would require a more detailed identification of the particular positions involved than is now contained in findings that were prepared by the trial judge to support a quite different disposition of the case. On the other hand, if the Court of Appeal concluded that respondents had followed a general policy of using race as a factor in making promotions, and that such a policy was justified by the State's interest in a safe and efficient prison system, adequate review of a broad holding of that kind would require an understanding of how such a sweeping policy was implemented and why such a policy should be applied in the promotion context and not in the hiring context.35 The trial court's findings contain no such explanation because the trial court did not find that respondents had engaged in any such bifurcated policy.36
33
An additional uncertainty concerning the precise issue to be decided is that the Court of Appeal expressed doubt concerning the trial court's jurisdiction over any claims asserted by CCOA and noted that petitioners Minnick and Darden were not entitled to damages or injunctive relief as individuals. 95 Cal.App.3d, at 526, 157 Cal.Rptr., at 272. Because the trial court's denial of petitioners' motion to certify the case as a class action was predicated on a stipulation that the court had jurisdiction to grant declaratory relief without any such certification, and because the Court of Appeal held that jurisdiction could not be conferred by stipulation, it is at least possible that claims on behalf of additional employees or job applicants may be asserted on remand. They, as well as the present petitioners, will have the right—even though petitioners' counsel have no such present intent—to adduce additional evidence in support of the complaint, or to amend their pleadings in the light of the developments in the law that have occurred since the original complaint was filed.37 Moreover, whether or not additional evidence is taken, the trial judge is unquestionably free to recast his findings in response to those legal developments.
34
Accordingly, because of significant developments in the law and perhaps in the facts as well38—and because of significant ambiguities in the record concerning both the extent to which race or sex has been used as a factor in making promotions and the justification for such use, we conclude that we should not address the constitutional issues until the proceedings in the trial court are finally concluded and the state appellate courts have completed their review of the trial court record.
35
Accordingly, the writ of certiorari is dismissed.
36
So ordered.
37
Justice REHNQUIST, concurring.
38
If I viewed this judgment of the California Court of Appeal as "final" under 28 U.S.C. § 1257, I would join the dissenting opinion of Justice STEWART. Since I do not so view it, however, I join the opinion of the Court dismissing the writ of certiorari for want of jurisdiction.
39
Justice BRENNAN, concurring in the judgment.
40
"In view of the ambiguities in the record as to the issues sought to be tendered," I would dismiss the writ of certiorari as improvidently granted. Mitchell v. Oregon Frozen Foods Co., 361 U.S. 231, 80 S.Ct. 365, 4 L.Ed.2d 267 (1960); see Doe v. Delaware, 450 U.S. 382, 386, n. 10, 101 S.Ct. 1495, 1497, n. 10, 67 L.Ed.2d 312 (1981) (BRENNAN, J., dissenting); Cowgill v. California, 396 U.S. 371, 371-372, 90 S.Ct. 613, 614, 24 L.Ed.2d 590 (1970) (Harlan, J., concurring).
41
Justice STEWART, dissenting.
42
I would not dismiss the writ of certiorari. I would, to the contrary, reverse the judgment before us because the California Court of Appeal has wrongly held that the State may consider a person's race in making promotion decisions.1
43
So far as the Constitution goes, a private person may engage in any racial discrimination he wants, cf. Steelworkers v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480, but under the Equal Protection Clause of the Fourteenth Amendment a sovereign State may never do so.2 And it is wholly irrelevant whether the State gives a "plus" or "minus" value to a person's race, whether the discrimination occurs in a decision to hire or fire or promote, or whether the discrimination is called "affirmative action" or by some less euphemistic term.3
44
A year ago I stated my understanding of the Constitution in this respect, and I repeat now a little of what I said then:
45
"The equal protection standard of the Constitution has one clear and central meaning—it absolutely prohibits invidious discrimination by government. That standard must be met by every State under the Equal Protection Clause of the Fourteenth Amendment. . . .
46
* * * * *
47
"Under our Constitution, the government may never act to the detriment of a person solely because of that person's race. The color of a person's skin and the country of his origin are immutable facts that bear no relation to ability, disadvantage, moral culpability, or any other characteristics of constitutionally permissible interest to government. . . . In short, racial discrimination is by definition invidious discrimination.
48
"The rule cannot be any different when the persons injured . . . are not members of a racial minority. . . .
49
* * * * *
50
". . . Most importantly, by making race a relevant criterion, . . . the Government implicitly teaches the public that the apportionment of rewards and penalties can legitimately be made according to race—rather than according to merit or ability—and that people can, and perhaps should, view themselves and others in terms of their racial characteristics. . . .
51
"There are those who think that we need a new Constitution, and their views may someday prevail. But under the Constitution we have, one practice in which government may never engage is the practice of racism. . . ." Fullilove v. Klutznick, 448 U.S. 448, 523, 525-526, 532, 100 S.Ct. 2758, 2798, 2803, 65 L.Ed.2d 902 (dissenting opinion) (footnote omitted).
52
I respectfully dissent.
1
App. 3.
2
"Specific actions required by [the] plan" include, inter alia, increasing the number of female and minority employees through "programs for recruiting, selecting, hiring, and promoting minorities and women," monitoring employment practices related to employment of women and minorities, establishing goals for measuring success in complying with nondiscrimination laws, training staff to "develop a sensitivity . . . to recognize and positively deal with discriminatory practices," and training women and minority employees to assure their full participation at all employment levels. Id., at 3-4.
3
The plan, for example, provides for the creation of various new positions, including a supervisor for the human relations section:
"The Supervisor, Human Relations Section, under the direct supervision of the Assistant Director, Personnel Management, and Training Division, shall have authority and responsibility for the following duties:
* * * * *
"7. Provide assistance to the Departmental Training Officer and local Training Officers in developing training relative to human relations and affirmative action.
"8. Review the department's programs and procedures related to personnel activities and make recommendations for any changes necessary to remove barriers to attainment of equal employment opportunity.
"9. Develop procedures with the Assistant Director, Womens Affairs for the receipt and the investigation of allegations and complaints by individuals, organizations, employees, or other third parties of discrimination on grounds of race, color, sex or national origin." Id., at 8-10.
Each division, institution, and parole region was to appoint an Affirmative Action Representative, whose duties include acting as liaison between "management and program staff, various organization units, special interest groups and organizations, [and] community leaders," analyzing discrimination complaints to identify problem areas and assist in their resolution, and assisting in the development of a written recruitment plan. Id., at 11.
4
The plan has as some of its objectives recruitment programs designed to reach minority communities and schools with significant minority enrollments, id., at 20-21, continuous review of job requirements to insure that qualification standards "are based upon the minimum required to perform necessary duties," id., at 23, on-the-job training to prepare employees to meet the requirements of their jobs, id., at 25, and the communication to managers, supervisors, and employees of the commitment of the Department to equal employment opportunity. Id., at 27.
5
Id., at 6.
6
Id., at 28. The plan then continues:
"On this basis, Black personnel should represent at least 22.5% of the departmental work force, whereas they apparently comprise 8.8%. Similarly, Spanish surname personnel should represent 12.1%, but actually comprise 7.4%. Native American personnel should comprise .7%, while they actually make up .2%. Only the Asian and other extraction are represented in accord with the guidelines." Id., at 28-29.
7
Id., at 31.
8
Id., at 16-17. The plan contains detailed statistics relating to the number of employees of different groups referred to as "Black," "Asian," "Spanish surname," "native American," and "other extraction," as well as breakdowns by sex, in different positions and in the various facilities operated by the Department of Corrections. Id., at 28-65.
9
For example, one of the stated objectives of the plan is "to increase significantly the utilization of minorities and women across organizational units of the CDC and at all levels possible as vacancies occur." The first "specific action" listed to accomplish this objective relates to the elimination of discrimination by committing the department to
"[d]evelop recruitment plans and public relations activities with specific focus on minority communities, organizations, and women organizations, to inform them of career opportunities within CDC and the desire to employ minorities and women."
The second "specific action" is to "increase department efforts to employ minorities and women" to achieve the LEAA percentages and the 36% minority and 38% female percentages. Id., at 16. No specific means of achieving this goal are indicated. The plan's use of the LEAA guidelines does not clarify the intended implementation of the plan. In discussing the LEAA guidelines, the plan states:
"To provide agencies goals, equal employment opportunity guidelines have been issued by the U.S. Department of Justice. They specify that the percentage of minority staff in the employment of the agency be at least 70% of the percentage of the minorities in the service (inmate) population." Id., at 38 (footnote omitted).
The LEAA guidelines' explanation of their purpose states, in part, that the experience of the LEAA "has demonstrated that the full and equal participation of women and minority individuals in employment opportunities in the criminal justice system is a necessary component to the Safe Streets Act's program to reduce crime and delinquency in the United States." Id., at 71. See 28 CFR § 42.301 (1980).
10
See Tr. 194, 203-206, 383, 452-453, 487-488, 548, 563-564, 591, 666, 668, 672, 773, 792, 882. George C. Jackson, then the Deputy Director of the Department, testified that the program's goal was "to make the Department of Corrections a fair place to work." Id., at 665.
11
The Deputy Attorney General defending the case on behalf of the respondents stated at trial:
"Our defense is on two levels, your honor.
"First of all, we're contending in this case that the Department only hires the most qualified people, and that's their policy. There may be exceptions down below, but that's their policy.
"On the other hand, if the Court so should find that they're using race as a factor in the hiring process as a qualification process, then we have the burden of showing that they must demonstrate a real reason for doing this. And that's what we've been trying to do with these witnesses, showing they have a real problem.
* * * * *
"I have a compelling state interest if the Court should find that race is being used as a factor. To do that, I have to show that they have a real problem that they're trying to solve, the violence in the prisons, the operation of the prisons.
"And the next step is to show that they're trying to solve it by hiring minorities in the ratios they're trying to hire." Id., at 660-661.
12
Clerk's Transcript on Appeal 121-122.
13
Tr. 670-671.
14
Conclusion of Law No. 4 reads as follows:
"It is not contrary to law for the Department, in determining job assignments and job responsibilities of its employees, to consider, among other relevant factors, the composition by race and sex of the existing work force and of the inmate population, and the race and sex of the employees in question." App. to Pet. for Cert. F-8.
15
The permanent injunction contains the following proviso:
"(a) Provided, however, that nothing in this Order shall prevent any person, in determining the assignments and job responsibilities of employees of the Department of Corrections, from considering, among other relevant factors, the race and sex of the employees in question." Id., at G-2.
16
The permanent injunction enjoins respondents "[f]rom hiring or promoting any employee in the Department of Corrections in which preference, advantage, or benefit is given to race, color, sex, or national origin." Ibid.
17
Justice BRENNAN, Justice WHITE, Justice MARSHALL, and Justice BLACKMUN joined Part V-C of Justice POWELL'S opinion, which stated:
"In enjoining petitioner from ever considering the race of any applicant, however, the courts below failed to recognize that the State has a substantial interest that legitimately may be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin. For this reason, so much of the California court's judgment as enjoins petitioner from any consideration of the race of any applicant must be reversed." 438 U.S., at 320, 98 S.Ct., at 2763.
See also id., at 325, 98 S.Ct., at 2766 (opinion of BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ.).
18
The court interpreted Justice POWELL's opinion to permit consideration of race in the school admissions process to serve the compelling state interest of promoting ethnic diversity among the students if
"(1) '. . . race or ethnic background may be deemed a "plus" in a particular applicant's file, yet . . . does not insulate the individual from comparison with all other candidates for the available seats'; and (2) a candidate not credited with that 'plus' will be 'fairly and competitively' evaluated for all the seats without being 'totally excluded from a specific percentage' of them which has been restricted to a particular racial or ethnic group. [438 U.S., at] 316-319, 98 S.Ct., at 2733." 95 Cal.App.3d, at 520, 157 Cal.Rptr., at 268.
19
Although finding No. 19 related only to transfer and assignment policies, the court seemed to rely on that finding to support the threshold proposition that the State has a compelling state interest in the safe operation of its prison system:
"In its finding no. 19, the trial court effectively determined that the practices apply the prison-related realities of race and sex to the point of promoting a 'compelling state interest' in a safe and efficient correctional system." Id., at 520-521, 157 Cal.Rptr., at 268.
20
"The terminal question is whether this record supports the declaration, in paragraph 1 of the judgment, that the department and Enomoto violated the Equal Protection Clause by 'discriminating' on the bases of race and sex in the 'hiring and promotion of employees.' The declaration rests on the trial court's finding (No. 8) that they had 'discriminated' in those respects by applying personnel practices from which 'preferences result in favor of certain ethnic groups or . . . of one sex.' (See fn. 5, ante.) According to our review of the evidence, it does not support a finding that 'preferences result' from the practices in favor of males or in the 'hiring' of employees. Finding No. 8 therefore fails to support the declaration in either respect." Id., at 521, 157 Cal.Rptr., at 269.
21
"If the case is to be retried, Justice Powell's decision in U. S. Bakke, will be pertinent to the determination of either question. (See U. S. Bakke, supra, 438 U.S. 265, at pp. 307-310, 98 S.Ct. 2733, at pp. 2757-2758, 57 L.Ed.2d 750.)
* * * * *
"These problems require examination if the case is to be retried." Id., at 526, 157 Cal.Rptr., at 272.
22
After the court cited finding No. 19 and identified the compelling state interest in the safe and efficient operation of the prison system, the court stated:
"The department is pursuing those objectives by assigning a female or minority employee a 'plus' in competition for promotion or transfer. The qualifications of other employees in the competition are still 'weighed fairly and competitively.' " Id., at 521, 157 Cal.Rptr., at 268.
After concluding that the proof of discrimination was insufficient as to the hiring challenge, the court stated:
"The practices otherwise identified in [finding no. 8] have just been examined in light of U. S. Bakke and under the 'strict scrutiny' it commands. We conclude that they are permitted by the Equal Protection Clause within the limited extent that noncontrolling 'preferences result in favor of certain ethnic groups' for purposes of promotion or transfer of personnel within the department, because they are necessary to promote the compelling interest of this state in the proper management of its correctional system. For the same reasons, they are permitted insofar as the same limited 'preferences result' in favor of women. Finding No. 8 accordingly fails to support the declaration that the Department and Enomoto violated the Equal Protection Clause in any respect." Id., at 521-522, 157 Cal.Rptr., at 269.
23
In its discussion of finding No. 19, which applied only to transfers and work assignments, the court indicated that the record established that the Department was assigning minority employees a " 'plus' in competition for promotion or transfer." In its discussion of finding No. 8, which did relate to promotions, the court stated only that the Department's promotion practices are justified "within the limited extent that noncontrolling preferences result in favor of certain ethnic groups" and "insofar as the same limited 'preferences result' in favor of women." In its discussion of finding No. 8, the court did not state that such preferences in fact existed.
Even in its discussion of what the evidence at trial indicated, the Court of Appeal was somewhat equivocal:
"There was evidence that various male Caucasian employees had been denied promotion or transfer in instances where preference had been given to female or minority members.
* * * * *
"Various supervisory employees of the department testified that preference for promotion or transfer was not given to female or minority employees in specified segments of the department after 1974. There was thus a conflict in the evidence as to how widely the preferential policies expressed in the AAP had been pursued within the department. According to all the evidence of instances where they had been applied, 'preference' was given to female sex or minority status only to the extent that each was considered a 'plus' factor in the assessment of a particular employee for promotion or transfer. Some evidence supported the inference that this 'plus' had occasionally contributed to the promotion or transfer of the preferred employee ahead of nonpreferred candidates who were otherwise more qualified for the new position. There was no evidence that such 'preference' had ever resulted in the promotion or transfer of an employee who was not qualified to hold the position.
"Vacancies in specific positions were occasionally left open, and promotions or transfers to them were sometimes delayed, until qualified female or minority employees could be found to fill them. Some of these positions were labelled 'female only,' or with words similarly referring to sex (including 'male only') or to race or ethnic background. There was no evidence that any specific number or percentage of positions were reserved for members of either sex or of any racial or ethnic group." Id., at 514-515, 157 Cal.Rptr., at 264.
24
The trial court had found that the plan could not be justified as a remedy for past societal discrimination but had not addressed the question whether it would be justified by past departmental discrimination. See finding No. 13, App. to Pet. for Cert. F-5.
25
95 Cal.App.3d, at 526, 157 Cal.Rptr., at 272. The Court of Appeal noted that the petitioners had not been permitted to maintain a class action, that the individuals had not proved that they were entitled to relief, and that CCOA did not represent all employees of the Department. Although the respondents had stipulated that the petitioners had standing, the Court of Appeal stated that the trial court's jurisdiction could not be created by stipulation. Ibid.
26
Petitioners have invoked this Court's jurisdiction under 28 U.S.C. § 1257(3), which provides:
"Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court as follows:
* * * * *
"(3) By writ of certiorari, where the validity of a treaty or statute of the United States is drawn in question or where the validity of a State statute is drawn in question on the ground of its being repugnant to the Constitution, treaties or laws of the United States, or where any title, right, privilege or immunity is specially set up or claimed under the Constitution, treaties or statutes of, or commission held or authority exercised under, the United States."
27
Tr. of Oral Arg. 20-21.
28
The questions presented in the petition for certiorari are:
"1. Whether a state agency may, absent proof that it has engaged in previous intentional discrimination, voluntarily establish goals, set aside positions and grant preferences, for the hiring and promotion of less qualified minorities and women, to the detriment of all other applicants and employees.
"2. Whether the safe and efficient operation of correctional facilities constitutes a sufficient compelling interest to justify the use of racial and sex-based preferences in hiring and promotion, and if so, whether proof of that interest was sufficiently supported by the record.
"3. Whether it is sufficient for a state agency to adopt preferential employment practices based solely upon conclusory allegations of the discriminatory impact of its past policies and practices on minorities and women.
"4. Whether it is appropriate for a state correctional institution to institute employment goals for minorities based upon inmate population rather than the relevant labor market or applicant flow.
"5. Whether the relevant labor force for the hiring of women should be based on state-wide employment statistics for women as opposed to applicant flow or the labor force statistics for women in the relevant geographic area in which the institutions are located." Pet. for Cert. 2-3.
29
"In the first category are those cases in which there are further proceedings—even entire trials—yet to occur in the state courts but where for one reason or another the federal issue is conclusive or the outcome of further proceedings preordained. In these circumstances, because the case is for all practical purposes concluded, the judgment of the state court on the federal issue is deemed final. In Mills v. Alabama, 384 U.S. 214, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966), for example, a demurrer to a criminal complaint was sustained on federal constitutional grounds by a state trial court. The State Supreme Court reversed, remanding for jury trial. This Court took jurisdiction on the reasoning that the appellant had no defense other than his federal claim and could not prevail at trial on the facts or any nonfederal ground. To dismiss the appeal 'would not only be an inexcusable delay of the benefits Congress intended to grant by providing for appeal to this Court, but it would also result in a completely unnecessary waste of time and energy in judicial systems already troubled by delays due to congested dockets.' Id., at 217-218, 86 S.Ct., at 1436-1437 (footnote omitted)." 420 U.S., at 479, 95 S.Ct., at 1038.
30
Commenting on the close connection between the policy of avoiding the premature adjudication of constitutional issues and the limitations on our jurisdiction, the Court wrote:
"Indeed in origin and in practical effects, though not in technical function, it is a corollary offshoot of the case and controversy rule. And often the line between applying the policy or the rule is very thin. They work, within their respective and technically distinct areas, to achieve the same practical purposes for the process of constitutional adjudication, and upon closely related considerations.
"The policy's ultimate foundations, some if not all of which also sustain the jurisdictional limitation, lie in all that goes to make up the unique place and character, in our scheme, of judicial review of governmental action for constitutionality. They are found in the delicacy of that function, particularly in view of possible consequences for others stemming also from constitutional roots; the comparative finality of those consequences; the consideration due to the judgment of other repositories of constitutional power concerning the scope of their authority; the necessity, if government is to function constitutionally, for each to keep within its power, including the courts; the inherent limitations of the judicial process, arising especially from its largely negative character and limited resources of enforcement; withal in the paramount importance of constitutional adjudication in our system.
"All these considerations and perhaps others, transcending specific procedures, have united to form and sustain the policy. Its execution has involved a continuous choice between the obvious advantages it produces for the functioning of government in all its coordinate parts and the very real disadvantages, for the assurance of rights, which deferring decision very often entails. On the other hand it is not altogether speculative that a contrary policy, of accelerated decision, might do equal or greater harm for the security of private rights, without attaining any of the benefits of tolerance and harmony for the functioning of the various authorities in our scheme. For premature and relatively abstract decision, which such a policy would be most likely to promote, have their part too in rendering rights uncertain and insecure." 331 U.S., at 570-572, 67 S.Ct., at 1420-1421 (footnote omitted).
31
Finding No. 8, App. to Pet. for Cert. F-4.
32
A third possibility is that a certain number of positions were "set aside" for particular ethnic groups or for females. Although the Court of Appeal decision seems to indicate that the Department did not establish such "controlling preferences," and that no evidence of any quota or percentage of positions set aside was introduced at trial, it is not entirely clear that the trial court would be foreclosed from making such a finding, nor is it entirely clear what the evidence at the first trial showed on this point. See n. 23, supra; n. 37, infra; Brief for Petitioners 5-9.
33
The Court of Appeal opinion states that the evidence did not indicate that the Department employed "preferences" in hiring. See n. 20, supra. It may be that preferences similar to the ones applied in the promotion context were used in the hiring context, but the Court of Appeal did not so conclude because petitioners failed in their proof of this issue. Thus although we must assume for purposes of this opinion that race and sex were not a factor in hiring, petitioners might be able to demonstrate the contrary on retrial. See n. 37, infra.
34
Because the trial court had found, in finding No. 19, that consideration of race in making job assignments or transfers to certain specific positions may serve a compelling state interest, the Court of Appeal may have assumed that promotions motivated by race or sex took place only with respect to jobs to which racially motivated transfers would have been permissible.
35
Of course, if respondents did not really distinguish between hiring and promotion, then petitioners will need another opportunity to demonstrate respondents' unified policy.
36
The text of the affirmative-action plan adopted in 1974 and revised in 1975 draws no such distinction between hiring and promotion.
37
Under California law, an appellate court reversal of a trial court decision has the effect of vacating the judgment and returning the case to the trial court for a new trial "as if no judgment had ever been rendered." See Erlin v. National Fire Ins. Co., 7 Cal.2d 547, 549, 61 P.2d 756, 757 (1936); Salaman v. Bolt, 74 Cal.App.3d 907, 914, 141 Cal.Rptr. 841, 844 (1977). Thus the losing party on appeal may introduce additional evidence. See Gospel Army v. Los Angeles, 331 U.S. 543, 547-548, 67 S.Ct. 1428, 1430-1431, 91 L.Ed. 1662, quoting Erlin, supra, at 549, 61 P.2d, at 757. Although this rule regarding new trials does not apply if the appellate court did not intend a new trial, Stromer v. Browning, 268 Cal.App.2d 513, 518-519, 74 Cal.Rptr. 155, 158 (1968), such as when the appellate court decides a dispositive issue which does not turn on facts which might change on retrial, id., at 519, 74 Cal.Rptr., at 160, the Court of Appeal clearly contemplated a possible retrial here.
38
Respondents have lodged with the Court a copy of a revised affirmative-action plan adopted in 1979. Further developments as to the Department's implementation of the AAP and changes reflected in the 1979 revision might affect the question of whether the petitioners are now entitled to injunctive relief.
1
This ruling is "final" for purpose of the jurisdiction of this Court. See Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 482-483, 95 S.Ct. 1029, 1039-1040, 43 L.Ed.2d 328.
2
It is self-evident folly to suppose that a person's race may constitutionally be taken into account, but that it must not be controlling.
3
California's policy of racial discrimination was sought to be justified as an antidote for previous discrimination in favor of white people. But, even in this context, two wrongs do not make a right. Two wrongs simply make two wrongs.
| 12
|
452 U.S. 61
101 S.Ct. 2176
68 L.Ed.2d 671
James F. SCHAD et al., Appellants,v.BOROUGH OF MOUNT EPHRAIM.
No. 79-1640.
Argued Feb. 25, 1981.
Decided June 1, 1981.
Syllabus
Appellants operate an adult bookstore in the commercial zone of appellee borough, and the store contains licensed coin-operated devices that display adult films. When appellants added a coin-operated mechanism permitting a customer to watch a usually nude live dancer, complaints were filed against them charging that the exhibition of live dancing violated an ordinance that restricted uses permitted in a commercial zone, and they were convicted. Rejecting appellants' defense based on the First and Fourteenth Amendments, the trial court, while recognizing that live nude dancing is protected by the First Amendment, held that First Amendment guarantees were not involved, since the case involved solely a zoning ordinance under which live entertainment, whether a nude dance or some other form of live presentation, was not a permitted use in any establishment in the borough. The Appellate Division of the New Jersey Superior Court affirmed, and the New Jersey Supreme Court denied further review.
Held : Appellants' convictions are invalid under the First and Fourteenth Amendments for appellee failed to justify the exclusion of live entertainment from the broad range of commercial uses permitted in the borough. Pp. 65-77.
(a) The ordinance in question, as construed by the New Jersey courts to exclude live entertainment, including nude dancing, throughout the borough, prohibits a wide range of expression that has long been held to be within the protection of the First and Fourteenth Amendments. An entertainment program may not be prohibited solely because it displays a nude human figure, and nude dancing is not without its First Amendment protection from official regulation. P. 65-66.
(b) The First Amendment requires sufficient justification for the exclusion of a broad category of protected expression from the permitted commercial uses, and none of appellee's asserted justifications withstands scrutiny. Its asserted justification that permitting live entertainment would conflict with its plan to create a commercial area catering only to the residents' "immediate needs," is patently insufficient. As to its asserted justification that live entertainment may be selectively excluded from the permitted commercial uses to avoid problems associated with live entertainment, such as parking, trash, police protection, and medical facilities, appellee has presented no evidence that live entertainment poses problems of this nature more significant than those associated with various permitted uses, or that its interests could not be met by restrictions that are less intrusive on protected forms of expression. And as to the claimed justification that the ordinance in question is a reasonable "time, place, and manner" restriction, appellee does not identify its interests making it reasonable to exclude all live entertainment but to allow a variety of other commercial uses, and has presented no evidence that live entertainment is incompatible with the permitted uses. Pp. 67-77.
Reversed and remanded.
Argued by Robert E. Levy, Ocean, N. J., for appellants.
Arnold N. Fishman, Camden, N. J., for appellee.
Justice WHITE delivered the opinion of the Court.
1
In 1973, appellants began operating an adult bookstore in the commercial zone in the Borough of Mount Ephraim in Camden County, N. J. The store sold adult books, magazines, and films. Amusement licenses shortly issued permitting the store to install coin-operated devices by virtue of which a customer could sit in a booth, insert a coin, and watch an adult film. In 1976, the store introduced an additional coin-operated mechanism permitting the customer to watch a live dancer, usually nude, performing behind a glass panel. Complaints were soon filed against appellants charging that the bookstore's exhibition of live dancing violated § 99-15B of Mount Ephraim's zoning ordinance, which described the permitted uses in a commercial zone,1 in which the store was located, as follows:
2
"B. Principal permitted uses on the land and in buildings.
3
"(1) Offices and banks; taverns; restaurants and luncheonettes for sit-down dinners only and with no drive-in facilities; automobile sales; retail stores, such as but not limited to food, wearing apparel, millinery, fabrics, hardware, lumber, jewelry, paint, wallpaper, appliances, flowers, gifts, books, stationery, pharmacy, liquors, cleaners, novelties, hobbies and toys; repair shops for shoes, jewels, clothes and appliances; barbershops and beauty salons; cleaners and laundries; pet stores; and nurseries. Offices may, in addition, be permitted to a group of four (4) stores or more without additional parking, provided the offices do not exceed the equivalent of twenty percent (20%) of the gross floor area of the stores.
4
"(2) Motels." Mount Ephraim Code § 99-15B(1), (2) (1979).2
5
Section 99-4 of the Borough's code provided that "[a]ll uses not expressly permitted in this chapter are prohibited."
6
Appellants were found guilty in the Municipal Court and fines were imposed. Appeal was taken to the Camden County Court, where a trial de novo was held on the record made in the Municipal Court and appellants were again found guilty. The County Court first rejected appellants' claim that the ordinance was being selectively and improperly enforced against them because other establishments offering live entertainment were permitted in the commercial zones.3 Those establishments, the court held, were permitted, nonconforming uses that had existed prior to the passage of the ordinance. In response to appellants' defense based on the First and Fourteenth Amendments, the court recognized that "live nude dancing is protected by the First Amendment" but was of the view that "First Amendment guarantees are not involved" since the case "involves solely a zoning ordinance" under which "[l]ive entertainment is simply not a permitted use in any establishment" whether the entertainment is a nude dance or some other form of live presentation. App. to Juris. Statement 8a, 12a. Reliance was placed on the statement in Young v. American Mini Theatres, Inc., 427 U.S. 50, 62, 96 S.Ct. 2440, 2448, 49 L.Ed.2d 310 (1976), that "[t]he mere fact that the commercial exploitation of material protected by the First Amendment is subject to zoning and other licensing requirements is not a sufficient reason for invalidating these ordinances." The Appellate Division of the Superior Court of New Jersey affirmed appellants' convictions in a per curiam opinion "essentially for the reasons" given by the County Court. App. to Juris. Statement 14a. The Supreme Court of New Jersey denied further review, 82 N.J. 287, 412 A.2d 793. Id., at 17a, 18a.
7
Appellants appealed to this Court. Their principal claim is that the imposition of criminal penalties under an ordinance prohibiting all live entertainment, including nonobscene, nude dancing, violated their rights of free expression guaranteed by the First and Fourteenth Amendments of the United States Constitution.4 We noted probable jurisdiction, 449 U.S. 897, 101 S.Ct. 264, 66 L.Ed.2d 127 (1980) and now set aside appellants' convictions.
8
* As the Mount Ephraim Code has been construed by the New Jersey courts—a construction that is binding upon us—"live entertainment," including nude dancing, is "not a permitted use in any establishment" in the Borough of Mount Ephraim. App. to Juris. Statement 12a. By excluding live entertainment throughout the Borough, the Mount Ephraim ordinance prohibits a wide range of expression that has long been held to be within the protections of the First and Fourteenth Amendments. Entertainment, as well as political and ideological speech, is protected; motion pictures, programs broadcast by radio and television, and live entertainment, such as musical and dramatic works fall within the First Amendment guarantee. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098 (1952); Schacht v. United States, 398 U.S. 58, 90 S.Ct. 1555, 26 L.Ed.2d 44 (1970); Jenkins v. Georgia, 418 U.S. 153, 94 S.Ct. 2750, 41 L.Ed.2d 642 (1974); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975); Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975); Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975). See also California v. LaRue, 409 U.S. 109, 118, 93 S.Ct. 390, 397, 34 L.Ed.2d 342 (1972); Young v. American Mini Theatres, Inc., supra, at 61, 62, 96 S.Ct., at 2447-2448. Nor may an entertainment program be prohibited solely because it displays the nude human figure. "[N]udity alone" does not place otherwise protected material outside the mantle of the First Amendment. Jenkins v. Georgia, supra, 418 U.S., at 161, 94 S.Ct., at 2755. Southeastern Promotions, Ltd. v. Conrad, supra; Erznoznik v. City of Jacksonville, supra, 422 U.S., at 211-212, 213, 95 S.Ct., at 2274. Furthermore, as the state courts in this case recognized, nude dancing is not without its First Amendment protections from official regulation. Doran v. Salem, Inn, Inc., supra; Southeastern Promotions, Ltd. v. Conrad, supra; California v. LaRue, supra.
9
Whatever First Amendment protection should be extended to nude dancing, live or on film, however, the Mount Ephraim ordinance prohibits all live entertainment in the Borough: no property in the Borough may be principally used for the commercial production of plays, concerts, musicals, dance, or any other form of live entertainment.5 Because appellants' claims are rooted in the First Amendment, they are entitled to rely on the impact of the ordinance on the expressive activities of others as well as their own. "Because overbroad laws, like vague ones, deter privileged activit[ies], our cases firmly establish appellant's standing to raise an overbreadth challenge." Grayned v. City of Rockford, 408 U.S. 104, 114, 92 S.Ct. 2294, 2302, 33 L.Ed.2d 222 (1972).
II
10
The First Amendment requires that there be sufficient justification for the exclusion of a broad category of protected expression as one of the permitted commercial uses in the Borough. The justification does not appear on the face of the ordinance since the ordinance itself is ambiguous with respect to whether live entertainment is permitted: § 99-15B purports to specify only the "principal" permitted uses in commercial establishments, and its listing of permitted retail establishments is expressly nonexclusive; yet, § 99-4 declares that all uses not expressly permitted are forbidden.6 The state courts at least partially resolved the ambiguity by declaring live entertainment to be an impermissible commercial use. In doing so, the County Court, whose opinion was adopted by the Appellate Division of the Superior Court, sought to avoid or to meet the First Amendment issue only by declaring that the restriction on the use of appellants' property was contained in a zoning ordinance that excluded all live entertainment from the Borough, including live nude dancing.
11
The power of local governments to zone and control land use is undoubtedly broad and its proper exercise is an essential aspect of achieving a satisfactory quality of life in both urban and rural communities. But the zoning power is not infinite and unchallengeable; it "must be exercised within constitutional limits." Moore v. East Cleveland, 431 U.S. 494, 514, 97 S.Ct. 1932, 1943, 52 L.Ed.2d 531 (1977) (STEVENS, J., concurring in judgment). Accordingly, it is subject to judicial review; and is most often the case, the standard of review is determined by the nature of the right assertedly threatened or violated rather than by the power being exercised or the specific limitation imposed. Thomas v. Collins, 323 U.S. 516, 529-530, 65 S.Ct. 315, 322, 89 L.Ed. 430 (1945).
12
Where property interests are adversely affected by zoning, the courts generally have emphasized the breadth of municipal power to control land use and have sustained the regulation if it is rationally related to legitimate state concerns and does not deprive the owner of economically viable use of his property. Agins v. City of Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 2141, 65 L.Ed.2d 106 (1980); Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974); Euclid v. Ambler Realty Co., 272 U.S. 365, 395, 47 S.Ct. 114, 121, 71 L.Ed. 303 (1926). But an ordinance may fail even under that limited standard of review. Moore v. East Cleveland, supra, at 520, 97 S.Ct., at 1946 (STEVENS, J., concurring in judgment); Nectow v. Cambridge, 277 U.S. 183, 48 S.Ct. 447, 72 L.Ed. 842 (1928).
13
Beyond that, as is true of other ordinances, when a zoning law infringes upon a protected liberty, it must be narrowly drawn and must further a sufficiently substantial government interest.7 In Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939), for example the Court recognized its obligation to assess the substantiality of the justification offered for a regulation that significantly impinged on freedom of speech:
14
"Mere legislative preferences or beliefs respecting matters of public convenience may well support regulation directed at other personal activities, but be insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions.
15
And so, as cases arise, the delicate and difficult task falls upon the courts to weigh the circumstances and to appraise the substantiality of the reasons advanced in support of the regulation of the free enjoyment of [First Amendment] rights." Id., at 161, 60 S.Ct., at 150.8
16
Similarly, in Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 637, 100 S.Ct. 826, 836, 63 L.Ed.2d 73 (1980),9 it was emphasized that the Court must not only assess the substantiality of the governmental interests asserted but also determine whether those interests could be served by means that would be less intrusive on activity protected by the First Amendment:
17
"The Village may serve its legitimate interests, but it must do so by narrowly drawn regulations designed to serve those interests without unnecessarily interfering with First Amendment freedoms. Hynes v. Mayor of Oradell, 425 U.S., [610] at 620 [96 S.Ct. 1755, 1760, 48 L.Ed.2d 243]; First National Bank of Boston v. Bellotti, 435 U.S. 765, 786 [98 S.Ct. 1407, 1421, 55 L.Ed.2d 707] (1978). 'Broad prophylactic rules in the area of free expression are suspect. Precision of regulation must be the touchstone. . . .' NAACP v. Button, 371 U.S. 415, 438 [83 S.Ct. 328, 340, 9 L.Ed.2d 405] (1963)." Justice POWELL said much the same thing in addressing the validity of a zoning ordinance in Moore v. East Cleveland, 431 U.S., at 499, 97 S.Ct., at 1935; when the government intrudes on one of the liberties protected by the Due Process Clause of the Fourteenth Amendment, "this Court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation." Because the ordinance challenged in this case significantly limits communicative activity within the Borough, we must scrutinize both the interests advanced by the Borough to justify this limitation on protected expression and the means chosen to further those interests.
18
As an initial matter, this case is not controlled by Young v. American Mini Theatres, Inc., the decision relied upon by the Camden County Court. Although the Court there stated that a zoning ordinance is not invalid merely because it regulates activity protected under the First Amendment, it emphasized that the challenged restriction on the location of adult movie theaters imposed a minimal burden on protected speech. 427 U.S., at 62, 96 S.Ct., at 2448. The restriction did not affect the number of adult movie theaters that could operate in the city; it merely dispersed them. The Court did not imply that a municipality could ban all adult theaters—much less all live entertainment or all nude dancing—from its commercial districts citywide.10 Moreover, it was emphasized in that case that the evidence presented to the Detroit Common Council indicated that the concentration of adult movie theaters in limited areas led to deterioration of surrounding neighborhoods,11 and it was concluded that the city had justified the incidental burden on First Amendment interests resulting from merely dispersing, but not excluding, adult theaters.
19
In this case, however, Mount Ephraim has not adequately justified its substantial restriction of protected activity.12 None of the justifications asserted in this Court was articulated by the state courts and none of them withstands scrutiny. First, the Borough contends that permitting live entertainment would conflict with its plan to create a commercial area that caters only to the "immediate needs" of its residents and that would enable them to purchase at local stores the few items they occasionally forgot to buy outside the Borough.13 No evidence was introduced below to support this assertion, and it is difficult to reconcile this characterization of the Borough's commercial zones with the provisions of the ordinance. Section 99-15A expressly states that the purpose of creating commercial zones was to provide areas for "local and regional commercial operations." (Emphasis added.) The range of permitted uses goes far beyond providing for the "immediate needs" of the residents. Motels, hardware stores, lumber stores, banks, offices, and car showrooms are permitted in commercial zones. The list of permitted "retail stores" is nonexclusive, and it includes such services as beauty salons, barbershops, cleaners, and restaurants. Virtually the only item or service that may not be sold in a commercial zone is entertainment, or at least live entertainment.14 The Borough's first justification is patently insufficient.
20
Second, Mount Ephraim contends that it may selectively exclude commercial live entertainment from the broad range of commercial uses permitted in the Borough for reasons normally associated with zoning in commercial districts, that is, to avoid the problems that may be associated with live entertainment, such as parking, trash, police protection, and medical facilities. The Borough has presented no evidence, and it is not immediately apparent as a matter of experience, that live entertainment poses problems of this nature more significant than those associated with various permitted uses; nor does it appear that the Borough's zoning authority has arrived at a defensible conclusion that unusual problems are presented by live entertainment. Cf. Young v. American Mini Theatres, Inc., 427 U.S., at 54-55, and n. 6, 96 S.Ct., at 2444, and n. 6.15 We do not find it self-evident that a theater, for example, would create greater parking problems than would a restaurant.16 Even less apparent is what unique problems would be posed by exhibiting live nude dancing in connection with the sale of adult books and films, particularly since the bookstore is licensed to exhibit nude dancing on films. It may be that some forms of live entertainment would create problems that are not associated with the commercial uses presently permitted in Mount Ephraim. Yet this ordinance is not narrowly drawn to respond to what might be the distinctive problems arising from certain types of live entertainment, and it is not clear that a more selective approach would fail to address those unique problems if any there are. The Borough has not established that its interests could not be met by restrictions that are less intrusive on protected forms of expression.
21
The Borough also suggests that § 99-15B is a reasonable "time, place, and manner" restriction; yet it does not identify the municipal interests making it reasonable to exclude all commercial live entertainment but to allow a variety of other commercial uses in the Borough.17 In Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972), we stated:
22
"The nature of a place, 'the pattern of its normal activities, dictate the kinds of regulations of time, place, and manner that are reasonable.' . . . The crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time. Our cases make clear that in assessing the reasonableness of a regulation, we must weigh heavily the fact that communication is involved; the regulation must be narrowly tailored to further the State's legitimate interest." Id., at 116-117, 92 S.Ct., at 2303 (footnotes omitted).
23
Thus, the initial question in determining the validity of the exclusion as a time, place, and manner restriction is whether live entertainment is "basically incompatible with the normal activity [in the commercial zones]." As discussed above, no evidence has been presented to establish that live entertainment is incompatible with the uses presently permitted by the Borough. Mount Ephraim asserts that it could have chosen to eliminate all commercial uses within its boundaries. Yet we must assess the exclusion of live entertainment in light of the commercial uses Mount Ephraim allows, not in light of what the Borough might have done.18
24
To be reasonable, time, place, and manner restrictions not only must serve significant state interests but also must leave open adequate alternative channels of communication. Grayned v. City of Rockford, supra, at 116, 118, 92 S.Ct., at 2303, 2304; Kovacs v. Cooper, 336 U.S. 77, 85-87, 69 S.Ct. 448, 452-453, 93 L.Ed. 513 (1949); see also Consolidated Edison Co. v. Public Service Comm'n of New York, 447 U.S. 530, 535, 100 S.Ct. 2326, 2332, 65 L.Ed.2d 319 (1980); Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748, 771, 96 S.Ct. 1817, 1830, 48 L.Ed.2d 346 (1976). Here, the Borough totally excludes all live entertainment, including nonobscene nude dancing that is otherwise protected by the First Amendment. As we have observed, Young v. American Mini Theatres, Inc., supra, did not purport to approve the total exclusion from the city of theaters showing adult, but not obscene, materials. It was carefully noted in that case that the number of regulated establishments was not limited and that "[t]he situation would be quite different if the ordinance had the effect of suppressing, or greatly restricting access to, lawful speech." 427 U.S., at 71, n. 35, 96 S.Ct., at 2453, n. 35.
25
The Borough nevertheless contends that live entertainment in general and nude dancing in particular are amply available in close-by areas outside the limits of the Borough. Its position suggests the argument that if there were countywide zoning, it would be quite legal to allow live entertainment in only selected areas of the county and to exclude it from primarily residential communities, such as the Borough of Mount Ephraim. This may very well be true, but the Borough cannot avail itself of that argument in this case. There is no countywide zoning in Camden County, and Mount Ephraim is free under state law to impose its own zoning restrictions, within constitutional limits. Furthermore, there is no evidence in this record to support the proposition that the kind of entertainment appellants wish to provide is available in reasonably nearby areas. The courts below made no such findings; and at least in their absence, the ordinance excluding live entertainment from the commercial zone cannot constitutionally be applied to appellants so as to criminalize the activities for which they have been fined. "[O]ne is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place." Schneider v. State, 308 U.S., at 163, 60 S.Ct., at 151.
26
Accordingly, the convictions of these appellants are infirm, and the judgment of the Appellate Division of the Superior Court of New Jersey is reversed and the case is remanded for further proceedings not inconsistent with this opinion.
27
So ordered.
28
Justice BLACKMUN, concurring.
29
I join the Court's opinion, but write separately to address two points that I believe are sources of some ambiguity in this still emerging area of the law.
30
First, I would emphasize that the presumption of validity that traditionally attends a local government's exercise of its zoning powers carries little, if any, weight where the zoning regulation trenches on rights of expression protected under the First Amendment. In order for a reviewing court to determine whether a zoning restriction that impinges on free speech is "narrowly drawn [to] further a sufficiently substantial governmental interest," ante, at 68, the zoning authority must be prepared to articulate, and support, a reasoned and significant basis for its decision. This burden is by no means insurmountable, but neither should it be viewed as de minimis. In this case, Mount Ephraim evidently assumed that because the challenged ordinance was intended as a land-use regulation, it need survive only the minimal scrutiny of a rational relationship test, and that once rationality was established, appellants then carried the burden of proving the regulation invalid on First Amendment grounds. Brief for Appellee 11-12. After today's decision, it should be clear that where protected First Amendment interests are at stake, zoning regulations have no such "talismanic immunity from constitutional challenge." Young v. American Mini Theatres, Inc., 427 U.S. 50, 75, 96 S.Ct. 2440, 2454, 49 L.Ed.2d 310 (1976) (concurring opinion).
31
My other observation concerns the suggestion that a local community should be free to eliminate a particular form of expression so long as that form is available in areas reasonably nearby. In Mini Theatres the Court dealt with locational restrictions imposed by a political subdivision, the city of Detroit, that preserved reasonable access to the regulated form of expression within the boundaries of that same subdivision. It would be a substantial step beyond Mini Theatres to conclude that a town or county may legislatively prevent its citizens from engaging in or having access to forms of protected expression that are incompatible with its majority's conception of the "decent life" solely because these activities are sufficiently available in other locals. I do not read the Court's opinion to reach, nor would I endorse, that conclusion.*
32
Were I a resident of Mount Ephraim, I would not expect my right to attend the theater or to purchase a novel to be contingent upon the availability of such opportunities in "nearby" Philadelphia, a community in whose decisions I would have no political voice. Cf. Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 556, 95 S.Ct. 1239, 1245, 43 L.Ed.2d 448 (1975) (" '[O]ne is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place,' " quoting Schneider v. State, 308 U.S. 147, 163, 60 S.Ct. 146, 151, 84 L.Ed. 155 (1939)). Similarly, I would not expect the citizens of Philadelphia to be under any obligation to provide me with access to theaters and bookstores simply because Mount Ephraim previously had acted to ban these forms of "entertainment." This case does not require articulation of a rule for evaluating the meaning of "reasonable access" in different contexts. The scope of relevant zoning authority varies widely across our country, as do geographic configurations and types of commerce among neighboring communities, and this issue will doubtless be resolved on a case-by-case basis. For now, it is sufficient to observe that in attempting to accommodate a locality's concern to protect the character of its community life, the court must remain attentive to the guarantees of the First Amendment, and in particular to the protection they afford to minorities against the "standardization of ideas . . . by . . . dominate political or community groups." Terminiello v. Chicago, 337 U.S. 1, 4-5, 69 S.Ct. 894, 895-896, 93 L.Ed. 1131 (1979).
33
Justice POWELL, with whom Justice STEWART joins, concurring.
34
I join the Court's opinion as I agree that Mount Ephraim has failed altogether to justify its broad restriction of protected expression. This is not to say, however, that some communities are not free—by a more carefully drawn ordinance—to regulate or ban all commercial public entertainment. In my opinion, such an ordinance could be appropriate and valid in a residential community where all commercial activity is excluded. Similarly, a residential community should be able to limit commercial establishments to essential "neighborhood" services permitted in a narrowly zoned area.
35
But the Borough of Mount Ephraim failed to follow these paths. The ordinance before us was not carefully drawn and, as the Court points out, it is sufficiently overinclusive and underinclusive that any argument about the need to maintain the residential nature of this community fails as a justification.
36
Justice STEVENS, concurring in the judgment.
37
The record in this case leaves so many relevant questions unanswered that the outcome, in my judgment, depends on the allocation of the burden of persuasion. If the case is viewed as a simple attempt by a small residential community to exclude the commercial exploitation of nude dancing from a "setting of tranquility," post, at 85 (BURGER, C. J., dissenting), it would seem reasonable to require appellants to overcome the usual presumption that a municipality's zoning enactments are constitutionally valid. To prevail in this case, appellants at least would be required to show that the exclusion was applied selectively, or perhaps that comparable expressive activity is not "amply available in close-by areas outside the limits of the Borough." Ante, at 76 (opinion of the Court). On the other hand, if one starts, as the Court does, from the premise that "appellants' claims are rooted in the First Amendment," ante, at 66, it would seem reasonable to require the Borough to overcome a presumption of invalidity. The Borough could carry this burden by showing that its ordinances were narrowly drawn and furthered "a sufficiently substantial government interest." Ante, at 68 (opinion of the Court) (footnote omitted).
38
Neither of these characterizations provides me with a satisfactory approach to this case. For appellants' business is located in a commercial zone, and the character of that zone is not unequivocally identified either by the text of the Borough's zoning ordinance or by the evidence in the record. And even though the foliage of the First Amendment may cast protective shadows over some forms of nude dancing,1 its roots were germinated by more serious concerns that are not necessarily implicated by a content-neutral zoning ordinance banning commercial exploitation of live entertainment. Cf. Young v. American Mini Theatres, Inc., 427 U.S. 50, 60-61, 96 S.Ct. 2440, 2447, 49 L.Ed.2d 310.
39
One of the puzzling features of this case is that the character of the prohibition the Borough seeks to enforce is so hard to ascertain. Because the written zoning ordinance purports to ban all commercial uses except those that are specifically listed—and because no form of entertainment is listed—literally it prohibits the commercial exploitation not only of live entertainment, but of motion pictures and inanimate forms as well.2 But the record indicates that what actually happens in this commercial zone may bear little resemblance to what is described in the text of the zoning ordinance.
40
The commercial zone in which appellants' adult bookstore is located is situated along the Black Horse Pike, a north-south artery on the eastern fringe of the Borough.3 The parties seem to agree that this commercial zone is relatively small; presumably, therefore, it contains only a handful of commercial establishments. Among these establishments are Al-Jo's, also known as the Club Al-Jo, My Dad's, and Capriotti's, all of which offer live entertainment.4 In addition, the zone contains the Mount Ephraim Democratic Club, the Spread Eagle Inn, and Guiseppi's.5 The record also contains isolated references to establishments known as the Villa Picasso and Millie's.6 Although not mentioned in the record, Mount Ephraim apparently also supports a commercial motion picture theater.7
41
The record reveals very little about the character of most of these establishments, and it reveals nothing at all about the motion picture theater. The one fact that does appear with clarity from the present record is that, in 1973, appellants were issued an amusement license that authorized them to exhibit adult motion pictures which their patrons viewed in private booths in their adult bookstore. Borough officials apparently regarded this business as lawful under the zoning ordinance and compatible with the immediate neighborhood until July 1976 when appellants repainted their exterior sign and modified their interior exhibition.8
42
Without more information about this commercial enclave on Black Horse Pike, one cannot know whether the change in appellants' business in 1976 introduced cacophony into a tranquil setting or merely a new refrain in a local replica of Place Pigalle. If I were convinced that the former is the correct appraisal of this commercial zone, I would have no hesitation in agreeing with THE CHIEF JUSTICE that even if the live nude dancing is a form of expressive activity protected by the First Amendment, the Borough may prohibit it.9 But when the record is opaque, as this record is, I believe the Borough must shoulder the burden of demonstrating that appellants' introduction of live entertainment had an identifiable adverse impact on the neighborhood or on the Borough as a whole. It might be appropriate to presume that such an adverse impact would occur if the zoning plan itself were narrowly drawn to create categories of commercial uses that unambiguously differentiated this entertainment from permitted uses. However, this open-ended ordinance affords no basis for any such presumption.
43
The difficulty in this case is that we are left to speculate as to the Borough's reasons for proceeding against appellants' business, and as to the justification for the distinction the Borough has drawn between live and other forms of entertainment. While a municipality need not persuade a federal court that its zoning decisions are correct as a matter of policy, when First Amendment interests are implicated it must at least be able to demonstrate that a uniform policy in fact exists and is applied in a content-neutral fashion. Presumably, municipalities may regulate expressive activity—even protected activity—pursuant to narrowly drawn content-neutral standards; however, they may not regulate protected activity when the only standard provided is the unbridled discretion of a municipal official. Compare Saia v. New York, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574, with Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513.10 Because neither the text of the zoning ordinance nor the evidence in the record indicates that Mount Ephraim applied narrowly drawn content-neutral standards to the appellants' business, for me this case involves a criminal prosecution of appellants simply because one of their employees has engaged in expressive activity that has been assumed,arguendo, to be protected by the First Amendment.11 Accordingly, and without endorsing the overbreadth analysis employed by the Court, I concur in its judgment.
44
Chief Justice BURGER, with whom Justice REHNQUIST joins, dissenting.
45
The Borough of Mount Ephraim is a small borough in Camden County, N.J. It is located on the Black Horse Turnpike, the main artery connecting Atlantic City with two major cities, Camden and Philadelphia. Mount Ephraim is about 17 miles from the city of Camden and about the same distance from the river that separates New Jersey from the State of Pennsylvania.
46
The Black Horse Turnpike cuts through the center of Mount Ephraim. For 250 feet on either side of the turnpike, the Borough has established a commercial zone. The rest of the community is zoned for residential use, with either single- or multi-family units permitted. Most of the inhabitants of Mount Ephraim commute to either Camden or Philadelphia for work.
47
The residents of this small enclave chose to maintain their town as a placid, "bedroom" community of a few thousand people. To that end, they passed an admittedly broad regulation prohibiting certain forms of entertainment. Because I believe that a community of people are—within limits—masters of their own environment, I would hold that, as applied, the ordinance is valid.
48
At issue here is the right of a small community to ban an activity incompatible with a quiet, residential atmosphere. The Borough of Mount Ephraim did nothing more than employ traditional police power to provide a setting of tranquility. This Court has often upheld the power of a community "to determine that the community should be beautiful as well as healthy, spacious as well as clean, wellbalanced as well as carefully patrolled." Berman v. Parker, 348 U.S. 26, 33, 75 S.Ct. 98, 102, 99 L.Ed. 27 (1954). Justice Douglas, speaking for the Court, sustained the power to zone as
49
"ample to lay out zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people." Village of Belle Terre v. Boraas, 416, U.S. 1, 9, 94 S.Ct. 1536, 1541, 39 L.Ed.2d 797 (1979).
50
Here we have nothing more than a variation on that theme.
51
The Court depicts Mount Ephraim's ordinance as a ban on live entertainment. But, in terms, it does not mention any kind of entertainment. As applied, it operates as a ban on nude dancing in appellants' "adult" bookstore, and for that reason alone it is here. Thus, the issue in the case that we have before us is not whether Mount Ephraim may ban traditional live entertainment, but whether it may ban nude dancing, which is used as the "bait" to induce customers into the appellants' bookstore. When, and if, this ordinance is used to prevent a high school performance of "The Sound of Music," for example, the Court can deal with that problem.
52
An overconcern about draftsmanship and overbreadth should not be allowed to obscure the central question before us. It is clear that, in passing the ordinance challenged here, the citizens of the Borough of Mount Ephraim meant only to preserve the basic character of their community. It is just as clear that, by thrusting their live nude dancing shows on this community, the appellants alter and damage that community over its objections. As applied in this case, therefore, the ordinance speaks directly and unequivocally. It may be that, as applied in some other case, this ordinance would violate the First Amendment, but, since such a case is not before us, we should not decide it.
53
Even assuming that the "expression" manifested in the nude dancing that is involved here is somehow protected speech under the First Amendment, the Borough of Mount Ephraim is entitled to regulate it. In Young v. American Mini-Theatres, Inc., 427 U.S. 50, 62, 96 S.Ct. 2440, 2448, 49 L.Ed.2d 310 (1972), we said:
54
"The mere fact that the commercial exploitation of material protected by the First Amendment is subject to zoning and other licensing requirements is not a sufficient reason for invalidating these ordinances."
55
Here, as in American Mini-Theatres, the zoning ordinance imposes a minimal intrusion on genuine rights of expression; only by contortions of logic can it be made otherwise. Mount Ephraim is a small community on the periphery of two major urban centers where this kind of entertainment may be found acceptable. The fact that nude dancing has been totally banned in this community is irrelevant. "Chilling" this kind of show business in this tiny residential enclave can hardly be thought to show that the appellants' "message" will be prohibited in nearby—and more sophisticated—cities.
56
The fact that a form of expression enjoys some constitutional protection does not mean that there are not times and places inappropriate for its exercise. The towns and villages of this Nation are not, and should not be, forced into a mold cast by this Court. Citizens should be free to choose to shape their community so that it embodies their conception of the "decent life." This will sometimes mean deciding that certain forms of activity factories, gas stations, sports stadia, bookstores, and surely live nude shows—will not be allowed. That a community is willing to tolerate such a commercial use as a convenience store, a gas station, a pharmacy, or a delicatessen does not compel it also to tolerate every other "commercial use," including pornography peddlers and live nude shows.
57
In Federalist Paper No. 51, p. 160 (R. Fairfield ed. 1966), Madison observed:
58
"In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself."
59
This expresses the balancing indispensable in all governing, and the Bill of Rights is one of the checks to control overreaching by government. But it is a check to be exercised sparingly by federal authority over local expressions of choice going to essentially local concerns.
60
I am constrained to note that some of the concurring views exhibit an understandable discomfort with the idea of denying this small residential enclave the power to keep this kind of show business from its very doorsteps. The Borough of Mount Ephraim has not attempted to suppress the point of view of anyone or to stifle any category of ideas. To say that there is a First Amendment right to impose every form of expression on every community, including the kind of "expression" involved here, is sheer nonsense. To enshrine such a notion in the Constitution ignores fundamental values that the Constitution ought to protect. To invoke the First Amendment to protect the activity involved in this case trivializes and demeans that great Amendment.
1
The zoning ordinance establishes three types of zones. The "R-1" residential district is zoned for single-family dwellings. The "R-2" residential district is zoned for single-family dwellings, townhouses, and garden apartments. The "C" district is zoned for commercial use, as specified in § 99-15 of the Mount Ephraim Code. See Mount Ephraim Code § 99-7 (1979).
2
Section 99-15A states the purpose of the commercial zone:
"A. Purpose. The purpose of this district is to provide areas for local and regional commercial operations. The zone district pattern recognizes the strip commercial pattern which exists along Kings Highway and the Black Horse Pike. It is intended, however, to encourage such existing uses and any new uses or redevelopment to improve upon the zoning districts of greater depth by encouraging shopping-center-type development with buildings related to each other in design, landscaping and site planning and by requiring off-street parking, controlled ingress and egress, greater building setbacks, buffer areas along property lines adjacent to residential uses, and a concentration of commercial uses into fewer locations to eliminate the strip pattern."
3
The building inspector, who is responsible for enforcing the zoning ordinance, testified that three establishments located in commercial zones of the Borough offered live music. However, he stated that they were permitted to do so only because this use of the premises preceded the enactment of the zoning ordinance and thus qualified as a "nonconforming" use under the ordinance. Munic.Ct.Tr., 21-25, 35-36, 55-59.
The Police Chief also testified. He stated that he knew of no live entertainment in the commercial zones other than that offered by appellants and by the three establishments mentioned by the building inspector. Id., at 67.
4
Appellants also contend that the zoning ordinance, as applied to them, violates due process and equal protection, since the Borough has acted arbitrarily and irrationally in prohibiting booths in which customers can view live nude dancing while permitting coin-operated movie booths. Since we sustain appellants' First Amendment challenge to the ordinance, we do not address these additional claims.
5
The Borough's counsel asserted at oral argument that the ordinance would not prohibit noncommercial live entertainment, such as singing Christmas carols at an office party. Tr. of Oral Arg. 33. Apparently a high school could perform a play if it did not charge admission. However, the ordinance prohibits the production of plays in commercial theaters. Id., at 34.
6
Service stations are not listed as principal permitted uses in § 99-15B. However, both § 99-15E ("Area and yard requirements") and § 99-15F ("Minimum off-street parking") specifically refer to service stations, and § 99-15J limits the construction or expansion of service stations in a designated area of the commercial district. Service stations would thus appear to be permitted uses even though not expressly listed in § 99-15B.
Various official views have been expressed as to what extent entertainment is excluded from the commercial zone. At the initial evidentiary hearing, the prosecutor suggested that the ordinance only banned "live entertainment" in commercial establishments. Munic.Ct.Tr., 49 (emphasis added). By contrast, the building inspector for the Borough stated that there was no basis for distinguishing between live entertainment and other entertainment under the ordinance. Id., at 20, 50. Before this Court, the Borough asserted in its brief that the ordinance "does not prohibit all entertainment, but only live entertainment," Brief for Appellee 21, yet counsel for the Borough stated during oral argument that the ordinance prohibits commercial establishments from offering any entertainment. Tr. of Oral Arg. 40. The County Court ruled that "live entertainment" is not a permitted use under § 99-15B, but it did not consider whether nonlive entertainment might be a permitted use. At oral argument, counsel for appellants referred to a movie theater in the Borough, Tr. of Oral Arg. 9, but counsel for the Borough explained that it is permitted only because it is a nonconforming use. Id., at 28, 38-40.
7
In Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974), the Court upheld a zoning ordinance that restricted the use of land to "one-family" dwellings. The Court concluded that the municipality's definition of a
"family" (no more than two unrelated persons) did not burden any fundamental right guaranteed by the Constitution. Id., at 7, 94 S.Ct., at 1540. Thus, it merely had to bear a rational relationship to a permissible state objective. Id., at 8, 94 S.Ct., at 1540. Justice MARSHALL dissented, asserting that the ordinance impinged on fundamental personal rights:
"[Thus,] it can withstand constitutional scrutiny only upon a clear showing that the burden imposed is necessary to protect a compelling and substantial governmental interest. . . . [T]he onus of demonstrating that no less intrusive means will adequately protect the compelling state interest and that the challenged statute is sufficiently narrowly drawn, is upon the party seeking to justify the burden." Id., at 18, 94 S.Ct., at 1545 (citations omitted).
Moore v. East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977), like Belle Terre, involved an ordinance that limited the occupancy of each dwelling to a single family. Unlike the ordinance challenged in Belle Terre, however, this ordinance defined "family" in a manner that prevented certain relatives from living together. Justice POWELL, joined by three other Justices, concluded that the ordinance impermissibly impinged upon protected liberty interests. 431 U.S., at 499, 97 S.Ct., at 1935. Justice STEVENS concluded that the ordinance did not even survive the Euclid test. 431 U.S., at 520-521, 97 S.Ct., at 1946. The dissenting opinions did not contend that zoning ordinances must always be deferentially reviewed. Rather, the dissenting Justices who addressed the issue rejected the view that the ordinance impinged upon interests that required heightened protection under the Due Process Clause. Id., at 537, 97 S.Ct., at 1955. (STEWART, J., joined by REHNQUIST, J., dissenting), id., at 549, 97 S.Ct., at 1961 (WHITE, J., dissenting).
Even where a challenged regulation restricts freedom of expression only incidentally or only in a small number of cases, we have scrutinized the governmental interest furthered by the regulation and have stated that the regulation must be narrowly drawn to avoid unnecessary intrusion on freedom of expression. See United States v. O'Brien, 391 U.S. 367, 376-377, 88 S.Ct. 1673, 1678, 20 L.Ed.2d 672 (1968).
8
Several municipalities argued in Schneider that their antileafletting ordinances were designed to prevent littering of the streets. The Court did not deny that the ordinances would further that purpose, but it concluded that the cities' interest in preventing littering was not sufficiently strong to justify the limitation on First Amendment rights. The Court pointed out that the cities were free to pursue other methods of preventing littering, such as punishing those who actually threw papers on the streets. 308 U.S., at 162, 60 S.Ct., at 151.
9
Village of Schaumburg invalidated on First Amendment grounds a municipal ordinance prohibiting the solicitation of contributions by charitable organizations that did not use at least 75% of their receipts for "charitable purposes." Although recognizing that the Village had substantial interests " 'in protecting the public from fraud, crime, and undue annoyance,' " 444 U.S., at 636, 100 S.Ct., at 836, we found these interests were "only peripherally promoted by the 75-percent requirement and could be sufficiently served by measures less destructive of First Amendment interests." Ibid.
10
Justice STEVENS relied on the District Court's finding that compliance with the challenged ordinances would only impose a slight burden on First Amendment rights, since there were "myriad locations" within the city where new adult movie theaters could be located in compliance with the ordinances. 427 U.S., at 71, n. 35, 96 S.Ct., at 2452, n. 35.
Similarly, Justice POWELL'S concurring opinion stressed that the effect of the challenged ordinance on First Amendment interests was "incidental and minimal." Id., at 78, 96 S.Ct., at 2456. He did not suggest that a municipality could validly exclude theaters from its commercial zones if it had included other businesses presenting similar problems. Although he regarded the burden imposed by the ordinance as minimal, Justice POWELL examined the city's justification for the restriction before he concluded that the ordinance was valid. Id., at 82, and n. 5, 96 S.Ct., at 2458, and n. 5. Emphasizing that the restriction was tailored to the particular problem identified by the city council, he acknowledged that "[t]he case would have present[ed] a different situation had Detroit brought within the ordinance types of theaters that had not been shown to contribute to the deterioration of surrounding areas." Id., at 82, 96 S.Ct., at 2458.
11
Id., at 71, and n. 34, 96 S.Ct., at 2452, and n. 34 (opinion of STEVENS, J.); id., at 82, and n. 5, 96 S.Ct., at 2458, and n. 5 (POWELL, J., concurring).
12
If the New Jersey courts had expressly interpreted this ordinance as banning all entertainment, we would reach the same result.
13
Mount Ephraim's counsel stated in this Court that these stores were available "[i]f you come home at night and you forgot to buy your bread, your milk, your gift." Tr. of Oral Arg. 40.
14
At present, this effect is somewhat lessened by the presence of at least three establishments that are permitted to offer live entertainment as a nonconforming use. See n. 3, supra. These uses apparently may continue indefinitely, since the Mount Ephraim Code does not require nonconforming uses to be terminated within a specified period of time. See Mount Ephraim Code § 99-24 (1979). The Borough's decision to permit live entertainment as a nonconforming use only undermines the Borough's contention that live entertainment poses inherent problems that justify its exclusion.
15
The Borough also speculates that it may have concluded that live nude dancing is undesirable. Brief for Appellee 20. It is noted that in California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972), this Court identified a number of problems that California sought to eliminate by prohibiting certain explicitly sexual entertainment in bars and in nightclubs licensed to serve liquor. This speculation lends no support to the challenged ordinance. First, § 99-15B excludes all live entertainment, not just live nude dancing. Even if Mount Ephraim might validly place restrictions on certain forms of live nude dancing under a narrowly drawn ordinance, this would not justify the exclusion of all live entertainment or, insofar as this record reveals, even the nude dancing involved in this case. Second, the regulation challenged in California v. LaRue was adopted only after the Department of Alcoholic Beverage Control had determined that significant problems were linked to the activity that was later regulated. Third, in California v. LaRue the Court relied heavily on the State's power under the Twenty-first Amendment. Cf. Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975).
16
Mount Ephraim has responded to the parking problems presented by the uses that are permitted in commercial zones by requiring that each type of commercial establishment provide a specified amount of parking. See Mount Ephraim Code § 99-15F (1979).
17
Mount Ephraim argued in its brief that nonlive entertainment is an adequate substitute for live entertainment. Brief for Appellee 20-21. This contention was apparently abandoned at oral argument, since the Borough's counsel stated that the ordinance bans all commercial entertainment. At any rate, the argument is an inadequate response to the fact that live entertainment, which the ordinance bans, is protected by the First Amendment.
18
Thus, our decision today does not establish that every unit of local government entrusted with zoning responsibilities must provide a commercial zone in which live entertainment is permitted.
*
I need not address here the weight to be given other arguments invoked by local communities as a basis for restricting protected forms of expression.
1
See, e. g., Doran v. Salem Inn, Inc., 422 U.S. 922, 932, 95 S.Ct. 2561, 2568, 45 L.Ed.2d 648; Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557-558, 95 S.Ct. 1239, 1245-1246, 43 L.Ed.2d 448; California v. LaRue, 409 U.S. 109, 118, 93 S.Ct. 390, 397, 34 L.Ed.2d 342.
2
Section 99-15B of the Mount Ephraim Code, quoted ante, at 63 (opinion of the Court), lists the land uses permitted in the Borough's commercial zones. No form of entertainment is included in this list. Section 99-4 of the Code provides that "[a]ll uses not expressly permitted in this chapter are prohibited."
3
At oral argument in this Court, counsel for the appellants asserted that the commercial zone extends for 250 feet on either side of the Black Horse Pike, and that the remainder of the Borough is zoned for residential use. See Tr. of Oral Arg. 5. THE CHIEF JUSTICE, in dissent, apparently relies upon counsel's description of Mount Ephraim's zoning pattern in support of his contention that Mount Ephraim is a quiet, " 'bedroom' community" into which appellants have thrust the disruptive influence of nude dancing. See post, at 85. However, counsel's assertion is unsupported by the record in this case, and indeed is inconsistent with the Borough's zoning ordinance. The Zoning Map of the Borough of Mount Ephraim indicates that, rather than containing a single commercial zone, Mount Ephraim in fact contains four commercial zones. Section 99-8 of the Mount Ephraim Code states that the boundaries of the zoning districts created by § 99-7 of the Code "are hereby established as shown on the map entitled 'Zoning Map of the Borough of Mount Ephraim' which accompanies and is hereby made a part of this chapter." The record does not reveal to what extent, if any, the three additional commercial zones have been commercially developed, but it is apparent from the Borough's Code that Mount Ephraim either has accepted or is prepared to accept a greater degree of commercial development than that presently found in the vicinity of appellants' bookstore.
4
See Munic.Ct.Tr. 21-22, 35-37, 55, 58-59, 67. My Dad's, which is located directly across the street from appellants' bookstore, features a musical combo that plays music from a stage; a vocalist also performs there on occasion. Id., at 25, 35-36. Capriotti's a dinner club/discotheque, and Al-Jo's also feature live performances by musical groups. Id., at 22, 36, 55, 58-59. The Borough permits live entertainment in these establishments as a prior nonconforming use.
5
See id., at 19-20. Appellants' counsel, in his examination of the Borough's building inspector at the Municipal Court trial, attempted to establish that some or all of these establishments had been issued amusement licenses by the Borough. The building inspector, whose duties did not include the issuance or supervision of amusement licenses, was unable to answer counsel's questions. See ibid.
6
See id., at 21, 38.
7
Counsel for both parties informed the Court at oral argument that a motion picture theater is in operation in Mount Ephraim. See Tr. of Oral Arg. 6, 9, 37-39. The theater apparently is located near and to the east of appellants' bookstore. See id., at 9. According to counsel for the Borough, the theater is permitted as a prior nonconforming use. See id., at 37-39; see also ante, at 67, n. 6 (opinion of the Court).
8
The Borough objected to both the exterior and the interior changes. A substantial part of the proceedings in the Municipal Court and the Camden County Court concerned the repainting of the sign, a dispute which appellants ultimately won in the state courts. See App. to Juris. Statement 5a-6a.
9
THE CHIEF JUSTICE states:
"It is clear that, in passing the ordinance challenged here, the citizens of the Borough of Mount Ephraim meant only to preserve the basic character of their community. It is just as clear that, by thrusting their live nude dancing shows on this community, the appellants alter and damage that community over its objections." Post, at 86.
The problem with THE CHIEF JUSTICE'S analysis, in my judgment, is that "the basic character of [the] community" is not at all clear on the basis of the present record. Although Mount Ephraim apparently is primarily a residential community, it is also a community that in 1973 deemed an adult bookstore that exhibited adult motion pictures, or "peep shows," not inconsistent with its basic character. I simply cannot say with confidence that the addition of a live nude dancer to this commercial zone in 1976 produced a dramatic change in the community's character.
10
The open-ended character of the prohibition in the Mount Ephraim Code, see n. 2, supra, presents an opportunity for the exercise of just such unbridled discretion. The Borough has, at different stages of this litigation, advanced two different interpretations of that prohibition. According to one, all commercial entertainment is prohibited within the boundaries of Mount Ephraim; according to the other, only commercial live entertainment is prohibited. See ante, at 67 , n. 6 (opinion of the Court). Appellants have suggested yet a third possible interpretation. They maintain that the prohibition is applied only against live nude dancing.
11
Like Justice POWELL, ante, at 79 (concurring opinion), I have no doubt that some residential communities may, pursuant to a carefully drawn ordinance, regulate or ban commercial public entertainment within their boundaries. Surely, a municipality zoned entirely for residential use need not create a special commercial zone solely to accommodate purveyors of entertainment. Cf. Valley View Village v. Proffett, 221 F.2d 412, 417-418 (CA6 1955) (Stewart, J.) (zoning ordinance that provides only for residential use is not per se invalid). Mount Ephraim, however, is not such a municipality.
| 23
|
452 U.S. 130
101 S.Ct. 2224
68 L.Ed.2d 724
W. C. McDANIEL et al., Petitioners,v.Jose SANCHEZ et al.
No. 80-180.
Argued March 2, 1981.
Decided June 1, 1981.
Syllabus
After holding that the apportionment plan for precincts from which county commissioners were elected to serve on the Commissioners Court for Kleberg County, Tex., was unconstitutional because of substantial population variances in the precincts, the District Court directed county officials to submit a proposed reapportionment plan to the court. The Commissioners Court then employed an expert to prepare a new plan and subsequently adopted his plan and submitted it to the District Court. The court approved the plan and authorized the Commissioners Court to conduct 1980 primary and general elections under it, rejecting respondents' contention that § 5 of the Voting Rights Act of 1965 (Act) required the county, a jurisdiction covered by the Act, to obtain preclearance from either the Attorney General of the United States or the United States District Court for the District of Columbia before the plan could become effective. The Court of Appeals vacated the District Court's order, holding that "[a] proposed reapportionment plan submitted by a local legislative body does not lose its status as a legislative rather than court-ordered plan merely because it is the product of litigation conducted in a federal forum," and that the Act required preclearance.
Held : Congress intended to require compliance with the statutory preclearance procedures under the circumstances of this case. Whenever a covered jurisdiction submits a proposal reflecting the policy choices of the elected representatives of the people—no matter what constraints have limited the choices available to them—the preclearance requirement of the Act is applicable. Pp. 137-153.
(a) The statement in East Carroll Parish School Board v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296—which held that a court-adopted reapportionment plan suggested by the local legislative body there involved was a judicial plan for purposes of substantive review—that the plan was also a judicial plan for purposes of § 5 preclearance was dictum and does not control this case. Pp. 139-146.
(b) The language of § 5 does not unambiguously answer the question, but the legislative history of the 1975 amendments of the Act shows that it was intended that the statutory protections are to be available even when redistricting by the governmental body is ordered by a federal court to remedy a constitutional violation that has been established in pending federal litigation. Pp. 146-153.
615 F.2d 1023, affirmed.
Richard A. Hall, Corpus Christi, Tex., for petitioners.
Robert J. Parmley, Alice, Tex., for respondents.
Lawrence G. Wallace, Washington, D. C., for the United States as amicus curiae, by special leave of Court.
Justice STEVENS delivered the opinion of the Court.
1
We granted certiorari to decide whether the preclearance requirement of § 5 of the Voting Rights Act of 1965, as amended,1 applies to a reapportionment plan submitted to a Federal District Court by the legislative body of a covered jurisdiction2 in response to a judicial determination that the existing apportionment of its electoral districts is unconstitutional. Relying on East Carroll Parish School Board v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (per curiam), the District Court held that the plan submitted to it in this case was a judicial plan and thus excepted from the requirements of § 5. Relying on Wise v. Lipscomb, 437 U.S. 535, 98 S.Ct. 2493, 57 L.Ed.2d 411, the Court of Appeals for the Fifth Circuit reversed; it held that because the plan had been prepared by a legislative body, it was a legislative plan within the coverage of § 5. We are persuaded that Congress intended to require compliance with the statutory preclearance procedures under the circumstances of this case. Accordingly, we affirm the judgment of the Court of Appeals.
2
The covered jurisdiction in this case is Kleberg County, a rural county in Texas. Under Texas law, a Commissioners Court, which is composed of four county commissioners presided over by the county judge, is authorized to govern Kleberg County. The county is divided periodically by the Commissioners Court into four commissioners' precincts, each of which elects a resident to the position of county commissioner. The county judge is elected at large. The county commissioners and the county judge serve 4-year terms.3
3
In January 1978, four Mexican-American residents of Kleberg County brought this class action against various county officials alleging that the apportionment of the four commissioners' precincts denied individual residents of the larger precincts a vote of equal weight, and unconstitutionally diluted the voting strength of the county's substantial Mexican-American population.4 After a trial,5 the District Court rejected the plaintiffs' claim that the county's apportionment plan unconstitutionally diluted the voting power of Mexican-Americans as a class, but held that individual voters were denied equal representation because of the substantial disparity in the number of residents in each commissioners' precinct.6 The District Court therefore directed the county officials to submit a proposed reapportionment plan to the court within six weeks, and scheduled a hearing on the validity of the proposal for four weeks thereafter.7
4
Pursuant to the District Court's order, the Commissioners Court undertook the task of devising a new apportionment plan. The Commissioners Court employed Dr. Robert Nash, a statistician and the Dean of the College of Business at Texas A. & I. University, to prepare a new plan, instructing him to define the commissioners' precincts "on a one-person/one-vote basis."8 With one insignificant modification, the9Commissioners Court officially adopted the plan prepared by Dr. Nash as the plan it would submit to the District Court.
5
Respondents objected to the proposed plan. They challenged the data used by the Dean, they claimed that the plan diluted the voting strength of Mexican-Americans, and they contended that the Voting Rights Act required the county to obtain preclearance from the Attorney General of the United States or the United States District Court for the District of Columbia before the plan could become effective.10 After an evidentiary hearing, the District Court rejected both of respondents' factual contentions, and held as a matter of law that the Voting Rights Act did not require preclearance. The court entered an order approving the new plan and authorizing the Commissioners Court to conduct the 1980 primary and general elections under it. See App. to Pet. for Cert. A-21 to A-23.
6
Without expressing any opinion with respect to the constitutionality of the new plan, the Court of Appeals vacated the District Court's order in a per curiam opinion. See 615 F.2d 1023 (1980). Reasoning that "[a] proposed reapportionment plan submitted by a local legislative body does not lose its status as a legislative rather than court-ordered plan merely because it is the product of litigation conducted in a federal forum," id., at 1024, the Court of Appeals held that the Voting Rights Act required preclearance. The court thereafter denied petitioners' application for a stay pending filing and consideration of a petition for writ of certiorari. On August 14, 1980, however, Justice POWELL, in his capacity as Circuit Justice, entered an order recalling the mandate and staying the judgment of the Court of Appeals pending disposition of the petition for certiorari. 448 U.S. 1318, 101 S.Ct. 7, 65 L.Ed.2d 1142. We granted that petition because the question presented is important and because the answer suggested by our prior opinions is not free of ambiguity. 449 U.S. 898, 101 S.Ct. 265, 66 L.Ed.2d 127.11
7
In this Court, the county officials contend that the Voting Rights Act does not apply to a plan that "(a) was prepared and presented in response to an order by the district court, (b) was not prepared by county officials but by a third party expert, (c) was not adopted by the county before submission to the court, (d) was considered by the trial court to be court-ordered, and (e) was put into effect only after county officials were ordered to do so by the trial court."12
8
We first consider the significance of the distinction between legislative and court-ordered plans as identified in our prior cases. We then review our decisions in East Carroll and Wise v. Lipscomb, on which the District Court and the Court of Appeals respectively placed primary reliance. Finally, we examine the statute and its legislative history.
9
* Texas and its political subdivisions are covered by the Voting Rights Act. Briscoe v. Bell, 432 U.S. 404, 97 S.Ct. 2428, 53 L.Ed.2d 439.13 Section 5 of the Act is applicable whenever a covered jurisdiction "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. . . ." 42 U.S.C. § 1973c. A reapportionment plan is a "standard, practice, or procedure with respect to voting" within the meaning of § 5, Georgia v. United States, 411 U.S. 526, 531-535, 93 S.Ct. 1702, 1708, 36 L.Ed.2d 472, and it is undisputed that Kleberg County is a covered jurisdiction. What is in dispute is whether that jurisdiction did "enact or seek to administer" a proposed reapportionment plan when it presented that plan to a Federal District Court as a proposed remedy for a constitutional violation. If the statute does apply, then the plan must be precleared either by the Attorney General of the United States or the United States District Court for the District of Columbia before it may become effective.14 In such a preclearance proceeding, it is not sufficient to demonstrate that the new plan is constitutional; the covered jurisdiction also has the burden of demonstrating that the districting changes are not motivated by a discriminatory purpose and will not have an adverse impact on minority voters. See e. g., City of Rome v. United States, 446 U.S. 156, 172-173, 100 S.Ct. 1548, 1559-1560, 64 L.Ed.2d 119. Two polar propositions are perfectly clear. First, the Act requires preclearance of new legislative apportionment plans that are adopted without judicial direction or approval. See Georgia v. United States, supra. Second, the Act's preclearance requirement does not apply to plans prepared and adopted by a federal court to remedy a constitutional violation. See Connor v. Johnson, 402 U.S. 690, 91 S.Ct. 1760, 29 L.Ed.2d 268 (per curiam ).15 Petitioners contend that the Act does not apply to this reapportionment plan because it is a court-ordered plan, while respondents argue that the Act does apply because the plan was prepared and submitted on behalf of the local legislative body.
10
In prior reapportionment cases not arising under the Voting Rights Act, we have recognized important differences between legislative plans and court-ordered plans. Because "reapportionment is primarily the duty and responsibility of the State through its legislature or other body, rather than of a federal court," Chapman v. Meier, 420 U.S. 1, 27, 95 S.Ct. 751, 766, 42 L.Ed.2d 766, the Court has tolerated somewhat greater flexibility in the fashioning of legislative remedies for violation of the one-person, one-vote rule than when a federal court prepares its own remedial decree. Thus, in Chapman we held that "unless there are persuasive justifications, a court-ordered reapportionment plan of a state legislature must avoid use of multimember districts, and, as well, must ordinarily achieve the goal of population equality with little more than de minimis variation." Id., at 26-27, 95 S.Ct., at 765-766 (footnote omitted).16 In contrast, reapportionment plans prepared by legislative bodies may employ multimember districts and may result in greater population disparities than would be permitted in a court-ordered plan. See Connor v. Finch, 431 U.S. 407, 414-415, 97 S.Ct. 1828, 1833-1834, 52 L.Ed.2d 465. Cf. Mahan v. Howell, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320.
11
In this case, we are concerned only with the question whether the reapportionment plan submitted to the District Court should be considered a legislative plan for purposes of preclearance under § 5. We are not presented with any question concerning the substantive acceptability of that plan. Nonetheless, we draw significant guidance from prior cases in which the substantive acceptability of a reapportionment plan, rather than the applicability of § 5, was at issue.
II
12
In neither of the cases on which the respective parties now place their primary reliance did the Court predicate its decision on the Voting Rights Act. In both of those cases, the question before the Court was whether it was error for the District Court to approve the inclusion of a multimember district in the reapportionment plan under review.
13
In East Carroll Parish School Board v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (per curiam), the plaintiff contended that population disparities among the parish's wards had unconstitutionally denied him the right to cast an effective vote for representatives to the school board and the police jury, the governing body of the parish. The District Court found that the parish's existing apportionment was unconstitutional. As a remedy, the court adopted a reapportionment plan, suggested by the police jury, that provided for at-large election of the members of both the police jury and the school board. Following the 1970 census, the District Court directed the police jury and school board to submit revised reapportionment plans. They resubmitted the plan calling for at-large elections, and the District Court again approved this plan. After a divided panel of the Court of Appeals affirmed the District Court's decision,17 the court sitting en banc reversed on the ground that the multimember arrangement approved by the District Court was unconstitutional.18
14
When we reviewed the case, we concluded that it was improper for the Court of Appeals to base its decision on a constitutional ground in view of the fact that the District Court had violated the frequently reaffirmed "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." Id., at 639, 96 S.Ct., at 1085. Thus, we held in East Carroll that the plan approved by the District Court was a judicial plan for purposes of substantive review.
15
Although the issue was not raised by the parties, we also stated in East Carroll that the plan was a judicial plan for purposes of § 5 preclearance. Neither of the parties had argued that § 5's preclearance requirement was applicable in that case. However, the United States, as amicus curiae, had contended that, because the plan had been submitted by the legislative bodies of a covered jurisdiction, preclearance was required. We rejected that argument in a footnote:
16
"[C]ourt-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 . . . 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. . . . 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] (1971)." 424 U.S., at 638-639, n. 6, 96 S.Ct., at 1085, n. 6.
17
Petitioners rely heavily upon this footnote. While their reliance is understandable, the footnote is not dispositive in this case. The discussion of § 5 in East Carroll was dictum unnecessary to the decision in that case. It is, therefore, not controlling in this case, in which the impact of § 5 is directly placed in issue.19 Moreover, our subsequent decision in Wise v Limpscomb, 437 U.S. 535, 98 S.Ct. 2493, 57 L.Ed.2d 411, indicates that, at least to the extent that East Carroll addressed the Voting Rights Act, it must be narrowly limited to its particular facts.
18
In Wise v. Lipscomb, the District Court held that the system of at-large election to the Dallas City Council unconstitutionally diluted the voting strength of black citizens. The court thereafter gave the City Council an opportunity to prepare and submit a new apportionment plan. In response, the City Council passed a resolution stating the Council's intention to pass an ordinance providing for the election of eight council members from single-member districts, and for the election of the three remaining members from the city at large. The District Court conducted a hearing " 'to determine the constitutionality of the new proposed plan' " and held that it was "a valid legislative Act." See 437 U.S., at 538-539, 98 S.Ct., at 2496. The Court of Appeals reversed, relying on East Carroll to hold that it was error for the District Court merely to evaluate the new plan under constitutional standards without also deciding whether exceptional circumstances justified the inclusion of a multimember district in that judicially imposed reapportionment plan. See 551 F.2d 1043 (CA5 1977).
19
The question this Court addressed was whether the District Court had committed error by failing to apply the usual presumption against multimember districts in judicial reapportionment plans. In his opinion announcing the judgment of the Court, Justice WHITE, joined by Justice STEWART, answered that question by holding that the presumption did not apply because it is "appropriate, whenever practicable, to afford a reasonable opportunity for the legislature to meet constitutional requirements by adopting a substitute measure rather than for the federal court to devise and order into effect its own plan." 437 U.S., at 540, 98 S.Ct., at 2497. Justice WHITE distinguished East Carroll on the ground that the legislative bodies in that case had not been purported to reapportion themselves and, in deed, had been without power to reapportion themselves under state law because the Louisiana enabling statute had been invalidated under the Voting Rights Act.20 The Dallas City Council, in contrast, had acted within its inherent legislative authority in devising and submitting a reapportionment plan to replace the plan invalidated by the District Court in Wise. See 437 U.S., at 545-546, 98 S.Ct., at 2500.
20
Justice POWELL's separate opinion concurring in part and concurring in the judgment, was joined by THE CHIEF JUSTICE, Justice BLACKMUN, and Justice REHNQUIST. Justice POWELL agreed with Justice WHITE's conclusion that the Dallas reapportionment plan was a legislative plan for purposes of the application of the presumption against multimember districts. However, relying upon Burns v. Richardson, 384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376, Justice POWELL disagreed with Justice WHITE's suggestion that East Carroll had held that a proposed reapportionment plan may be considered legislative only if the legislative body that suggested the plan had authority to enact it under state law. 437 U.S., at 548, 98 S.Ct., at 2501.21 In Justice POWELL's view, the legislative body's authority under state law was irrelevant to the question before the Court. He explained that the critical difference between a legislative plan and a court-imposed plan for purposes of substantive review was that the former reflected the policy choices of the elected representatives of the people, whereas the latter represented the remedial directive of a federal court.22 Deference to the judgment of the legislative body was required even if that body lacked authority under state law to adopt the proposed reapportionment plan.23
21
In dissent, Justice MARSHALL, joined by Justice BRENNAN and Justice STEVENS, expressed the opinion that Wise was indistinguishable from East Carroll and that the Court of Appeals therefore had correctly applied the presumption against multimember districts. 437 U.S., at 550-554, 98 S.Ct., at 2502-2504. Justice MARSHALL, however, agreed with the majority that it would not be proper to reach any question under the Voting Rights Act because Texas had not been subject to the Act when the case was pending in the District Court.24
22
While it is clear that Wise, like East Carroll, did not require the Court to decide any statutory issue, the references to § 5 of the Voting Rights Act in Justice WHITE's opinion announcing the judgment of the Court are nevertheless instructive. After pointing out that "the distinctive impact" of § 5 upon the power of the States to reapportion themselves must be observed in the normal case, 437 U.S., at 541-542, 98 S.Ct., at 2497-2498, Justice WHITE stated:
23
"Plans imposed by court order are not subject to the requirements of § 5, but under that provision, a State or political subdivision subject to the Act may not 'enact or seek to administer' any 'different' voting qualification or procedure with respect to voting without either obtaining a declaratory judgment from the United States District Court for the District of Columbia that the proposed 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 submitting the change to the Attorney General and affording him an appropriate opportunity to object thereto. A new reapportionment plan enacted by a State, including one purportedly adopted in response to invalidation of the prior plan by a federal court, will not be considered 'effective as law,' Connor v. Finch, 431 U.S., at 412 [97 S.Ct., at 1832]; Connor v. Waller, 421 U.S. 656 [95 S.Ct. 2003, 44 L.Ed.2d 486] (1975), until it has been submitted and has received clearance under § 5. Neither, in those circumstances, until clearance has been obtained, should a court address the constitutionality of the new measure. Connor v. Finch, supra; Connor v. Waller, supra." Id., at 542, 98 S.Ct., at 2498 (footnote omitted).
24
Neither East Carroll nor Wise decided the precise question that is now presented. Nonetheless, both Justice WHITE's opinion and Justice POWELL's opinion surely foreshadowed the holding we announce today. For both opinions indicate that the fact that the reapportionment plan before us was devised in response to an order of a federal court does not change its character as a legislative plan. In addition, Justice POWELL's opinion indicates that the Commissioners Court's power under Texas law to adopt this plan should be irrelevant to the decision in this case.
III
25
This is not a case in which the language of the controlling statute unambiguously answers the question presented. The Solicitor General, on behalf of the United States as amicus curiae, contends that a covered jurisdiction "seek[s] to administer" a new voting practice when it submits a redistricting plan to a district court as a proposed remedy for a constitutional violation. This is a plausible but not an obviously correct reading of the statutory language. For there is force to the contrary argument that Kleberg County had no intention to administer any new plan until after it was given legal effect by incorporation in a judicial decree. Arguably, therefore, the statute has no application before the District Court enters its decree, and because the Act does not require the District Court to have its decisions precleared, seeConnor v. Johnson, 402 U.S. 690, 91 S.Ct. 1760, 29 L.Ed.2d 268, once such a decree is entered it is too late for the statute to qualify the county's duty to administer the plan as entered by the District Court. We find sufficient ambiguity in the statutory language to make it appropriate to turn to legislative history for guidance.
26
In 1975, when Congress adopted the amendments that ultimately brought Texas and Kleberg County within the coverage of the Act, it directed special attention to § 5 and to the redistricting that would be required after the 1980 census.25 In its Report on S. 1279, the bill that extended the life of the Voting Rights Act beyond 1975, the Senate Committee on the Judiciary explained "the future need for the Act" by pointing out that redrafting of district lines to correct violations of the one-person, one-vote rule created opportunities to disenfranchise minority voters.26 "By providing that Section 5 protections not be removed before 1985, S. 1279 would guarantee Federal protection of minority voting rights during the years that the post-census redistrictings will take place."27
27
The Committee unambiguously stated that the statutory protections are to be available even when the redistricting is ordered by a federal court to remedy a constitutional violation that has been established in pending federal litigation. The Committee Report is crystal clear on this point:
28
"Thus, for example, where a federal district court holds unconstitutional an appointment plan which predates the effective date of coverage under the Voting Rights Act, any subsequent plan ordinarily would be subject to Section 5 review. In the typical case, the court either will direct the governmental body to adopt a new plan and present it to the court for consideration or else itself choose a plan from among those presented by various parties to the litigation. In either situation, the court should defer its consideration of—or selection among—any plans presented to it until such time as these plans have been submitted for Section 5 review. Only after such review should the district court proceed to any remaining fourteenth or fifteenth amendment questions that may be raised.
29
"The one exception where Section 5 review would not ordinarily be available is where the court, because of exigent circumstances, actually fashions the plan itself instead of relying on a plan presented by a litigant. This is the limited meaning of the 'court decree' exception recognized in Connor v. Johnson, 402 U.S. 690 [91 S.Ct. 1760, 29 L.Ed.2d 268] (1971). Even in these cases, however, if the governmental body subsequently adopts a plan patterned after the court's plan, Section 5 review would be required, Connor v. Waller, supra. Furthermore, in fashioning the plan, the court should follow the appropriate Section 5 standards, including the body of administrative and judicial precedents developed in Section 5 cases." Senate Report, at 18-19.28
30
The view expressed by the Committee is consistent with the basic purposes of the statute and with the well-settled rule that § 5 is to be given a broad construction. See, e. g., Dougherty County Board of Education v. White, 439 U.S. 32, 38, 99 S.Ct. 368, 372, 58 L.Ed.2d 269; United States v. Sheffield Board of Commissioners, 435 U.S. 110, 122-123, 98 S.Ct. 965, 974-975, 55 L.Ed.2d 148; Perkins v. Matthews, 400 U.S. 379, 387, 91 S.Ct. 431, 436, 27 L.Ed.2d 476. The preclearance procedure is designed to forestall the danger that local decisions to modify voting practices will impair minority access to the electoral process.29 The federal interest in preventing local jurisdictions from making changes that adversely affect the rights of minority voters is the same whether a change is required to remedy a constitutional violation or is merely the product of a community's perception of the desirability of responding to new social patterns.30
31
It is true, of course, that the federal interest may be protected by the federal district court presiding over voting rights litigation, but sound reasons support the Committee's view that the normal § 5 preclearance procedures should nevertheless be followed in cases such as this.31 The procedures contemplated by the statute reflect a congressional choice in favor of specialized review—either by the Attorney General of the United States or by the United States District Court for the District of Columbia. Because a large number of voting changes must necessarily undergo the preclearance process, centralized review enhances the likelihood that recurring problems will be resolved in a consistent and expeditious way.32 Moreover, if covered jurisdictions could avoid the normal preclearance procedure by awaiting litigation challenging a refusal to redistrict after a census is completed, the statute might have the unintended effect of actually encouraging delay in making obviously needed changes in district boundaries. The federal interest in evenhanded review of all changes in covered jurisdictions is furthered by the application of the statute in cases such as this.
32
The application of the statute is not dependent on a showing that the county's proposed plan is defective in any way. Cf. United States v. Board of Supervisors of Warren County, 429 U.S. 642, 97 S.Ct. 833, 51 L.Ed.2d 106 (per curiam); Morris v. Gressette, 432 U.S. 491, 97 S.Ct. 2411, 53 L.Ed.2d 506. The prophylactic purposes of the § 5 remedy are achieved by automatically requiring "review of all voting changes prior to implementation by the covered jurisdictions." Senate Report, at 15 (emphasis supplied).33 It is therefore not material that the plan submitted by the Commissioners Court of Kleberg County in this case was actually prepared by an independent expert. His expertise may facilitate the satisfactory completion of the preclearance process, but it does not obviate the preclearance requirement itself. For just as the reasons for the county's decision to purpose a new plan are irrelevant to the statutory preclearance requirement, so also is the particular method that is employed in formulating the plan that is submitted to the court on behalf of the county irrelevant.
33
The application of the statute also is not dependent upon any showing that the Commissioners Court had authority under state law to enact the apportionment plan at issue in this case.34 As Justice POWELL pointed out in Wise v. Lipscomb, 437 U.S. 535, 98 S.Ct. 2493, 57 L.Ed.2d 411, the essential characteristic of a legislative plan is the exercise of legislative judgment. The fact that particular requirements of state law may not be satisfied before a plan is proposed to a federal court does not alter this essential characteristic. The applicability of § 5 to specific remedial plans is a matter of federal law that federal courts should determine pursuant to a uniform federal rule.
34
As we construe the congressional mandate, it requires that whenever a covered jurisdiction submits a proposal reflecting the policy choices of the elected representatives of the people—no matter what constraints have limited the choices available to them the preclearance requirement of the Voting Rights Act is applicable.35 It was, therefore, error for the District Court to act on the county's proposed plan before it had been submitted to the Attorney General or the United States District Court for the District of Columbia for preclearance.
35
The judgment of the Court of Appeals is therefore affirmed.
36
It is so ordered.
37
Justice POWELL, concurring.
38
The decision today is foreshadowed by Wise v. Lipscomb, 437 U.S. 535, 98 S.Ct. 2493, 57 L.Ed.2d 411 (1978), and I join the Court's opinion. The constitutionality of § 5 of the Voting Rights Act of 1965 has been sustained by prior cases. If the question were presented for reconsideration, I would adhere to the contrary view as previously expressed. City of Rome v. United States, 446 U.S. 156, 193, 100 S.Ct. 1548, 1570, 64 L.Ed.2d 1119 (1980) (POWELL, J., dissenting); Dougherty County Bd. of Ed. v. White, 439 U.S. 32, 48, 99 S.Ct. 368, 377, 58 L.Ed.2d 269 (1978) (POWELL, J., dissenting); Georgia v. United States, 411 U.S. 526, 545, 93 S.Ct. 1702, 1713, 36 L.Ed.2d 472 (1973) (POWELL, J., dissenting). See also United States v. Sheffield, Board of Commissioners, 435 U.S. 110, 141, 98 S.Ct. 965, 984, 55 L.Ed.2d 148 (1978) (STEVENS, J., dissenting); Allen v. State Board of Elections, 393 U.S. 544, 586, and n.4, 89 S.Ct. 817, 842, and n.4, 22 L.Ed.2d 1 (1969) (HARLAN, J., concurringin part and dissenting in part); South Carolina v. Katzenbach, 383 U.S. 301, 358, 86 S.Ct. 803, 833, 15 L.Ed.2d 769 (1966) (BLACK, J., concurring and dissenting).*
39
Justice STEWART, with whom Justice REHNQUIST joins, dissenting.
40
In East Carroll Parish School Bd. v. Marshall, 424 U.S. 636, 638-639, n.6, 96 S.Ct. 1083, 1085, n.6, 47 L.Ed.2d 296, the Court expressly stated that a reapportionment scheme which is submitted and adopted pursuant to a court order does not have to be approved through the preclearance procedures of § 5 of the Voting Rights Act. This statement represented the deliberate and considered view of the court, as demonstrated by the presence of a separate opinion in the case questioning the Court's resolution of the issue. See id., at 640, 96 S.Ct., at 1085 (concurring opinion). Because I believe that what the Court said in the East Carroll case expressly controls the result in this case, I respectfully dissent.
1
The Voting Rights Act was enacted in 1965, 79 Stat. 437, and was amended in 1970, 84 Stat. 314, and in 1975, 89 Stat. 400. In relevant part, § 5, 89 Stat. 404, as set forth in 42 U.S.C. § 1973c, now provides:
"[W]henever 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."
2
Section 4 of the Act identifies the jurisdictions that are subject to the Act's prohibitions. One of the determinants of coverage is the use of a "test or device" as a prerequisite for registration or voting. See 42 U.S.C. § 1973b(b), (c). In 1975, Congress enlarged the coverage of the Act by changing the definition of "test or device" to protect non-English-speaking citizens who constitute more than 5% of the voting age population in any jurisdiction. The amendment provides:
"In addition to the meaning given the term under subsection (c) of this section, the term 'test or device' shall also mean any practice or requirement by which any State or political subdivision provided any registration or voting notices, forms, instructions, assistance, or other materials or information relating to the electoral process, including ballots, only in the English language, where the Director of the Census determines that more than five per centum of the citizens of voting age residing in such State or political subdivision are members of a single language minority." 89 Stat. 401-402, 42 U.S.C. § 1973b(f)(3).
As a result of this amendment, Texas and its political subdivisions became covered jurisdictions. See Briscoe v. Bell, 432 U.S. 404, 97 S.Ct. 2428, 53 L.Ed.2d 439.
3
See generally Tex.Const., Art. 5, § 18; Tex.Rev.Civ.Stat.Ann., Art. 2351 (Vernon 1971). Elections are staggered in the four precincts so that two commissioners are elected every two years.
4
The District Court certified two classes of Kleberg County voters as plaintiffs: (1) the class of all registered voters who were denied a vote of equal weight in the election of county commissioners due to the malapportionment of the commissioners' precincts; and (2) the class of all Mexican-American voters whose voting power had been diluted under the Kleberg County apportionment plan. See App. to Pet. for Cert. A-2, A-4.
5
In February 1978, the District Court had refused to grant the plaintiffs preliminary relief enjoining the May 1978 primary elections, relying in part on the uncertainty of the statistical data presented by the plaintiffs to establish their claim of malapportionment. After the primary election, the Court of Appeals vacated the District Court's order denying a preliminary injunction and remanded for reconsideration in the light of its decision in Lister v. Commissioners Court, 566 F.2d 490 (5 Cir. 1978), which held that a Commissioners Court "had a clear duty to reapportion on the basis of the 1970 Census." Id., at 492. Upon remand, the case proceeded to trial in the District Court.
6
The 1970 census indicated that Kleberg County had 33,166 residents. If the precinct boundaries had been drawn to achieve perfect population equality, each precinct would have had 8,291 residents. In fact, however, the largest precinct contained 9,928 residents and the smallest only 6,702. The maximum deviation from the largest precinct to the smallest was therefore 38.9%. See App. to Pet. for Cert. A-5. This apportionment plan had been adopted in 1968, and the precincts had not been reapportioned following the 1970 census.
7
In ordering the defendants to submit a proposed reapportionment plan, the District Court noted: "The initial burden of fashioning a constitutionally permissible remedy is on the County Commissioners Court." Id., at A-19.
8
Although the Commissioners Court employed Dr. Nash, he was not given extensive instructions with respect to preparation of the reapportionment plan. Dr. Nash's testimony in the District Court reveals that the plan's details were left largely within his discretion:
"Q. What instructions did you receive at the time of notification from Judge McDaniel in reference to drafting the new plan?
* * * * *
"A. They wanted it broken down on a one-person/one-vote basis and that was the extent of their input on how I would do it." App. 25.
The Commissioners Court did not ask Dr. Nash to take into consideration geographical boundaries, previous county maintenance districts, or the ethnic balance of individual precincts. Id., at 26. In drafting the plan, Dr. Nash was primarily influenced by population considerations; he also attempted to stay within the boundaries of existing voting precincts as much as possible. Id., at 29-30.
9
After Dr. Nash submitted his proposal, the Commissioners Court asked him to redraw one boundary in order to locate the county courthouse in Precinct One instead of Precinct Four. Because there were no residents on the only block affected by this change, see id., at 28, no one contends that it was significant for purposes of this litigation.
10
See n. 1, supra.
11
As Justice POWELL noted in granting petitioners' application for a stay:
"It is fair to say that the opinions in East Carroll and Wise v. Lipscomb fall considerably short of providing clear guidance to the courts that initially address this difficult issue. It would be helpful, therefore, for this Court to exercise its responsibility to provide such guidance." 448 U.S., at 1322, 101 S.Ct., at 9.
12
Pet. for Cert. I; see also Brief for Petitioners II.
13
See n. 2, supra.
14
In our prior decisions construing the Act, we have described in detail the preclearance procedures. See, e. g., Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1; South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769; Georgia v. United States, 411 U.S. 526, 93 S.Ct. 1702, 36 L.Ed.2d 472; Morris v. Gressette, 432 U.S. 491, 97 S.Ct. 2411, 53 L.Ed.2d 506.
15
In Johnson, the Court summarily rejected the suggestion that an apportionment plan formulated by a federal court must be submitted for preclearance under § 5:
"A decree of the United States District Court is not within reach of Section 5 of the Voting Rights Act." 402 U.S., at 691, 91 S.Ct., at 1761.
In his dissenting opinion in Johnson, Justice Black added:
"Needless to say I completely agree with the holding of the majority that a reapportionment plan formulated and ordered by a federal district court need not be approved by the United States Attorney General or the United States District Court for the District of Columbia. Under our constitutional system it would be strange indeed to construe § 5 of the Voting Rights Act of 1965, 79 Stat. 439, 42 U.S.C. § 1973c (1964 ed., Supp. V), to require that actions of a federal court be stayed and reviewed by the Attorney General or the United States District Court for the District of Columbia." Id., at 695, 91 S.Ct., at 1763.
16
Chapman involved reapportionment of the Legislature of North Dakota, a jurisdiction that is not covered by the Voting Rights Act.
17
See Zimmer v. McKeithen, 467 F.2d 1381 (CA5 1972).
18
See Zimmer v. McKeithen, 485 F.2d 1297 (CA5 1973) (en banc). In the Court of Appeals, the appellants had also argued that the at-large election was not permitted by state law because the Louisiana statute that authorized the use of multimember districts had never become effective since it had not been precleared pursuant to § 5 of the Voting Rights Act. See 485 F.2d, at 1301-1302, and n. 7.
19
THE CHIEF JUSTICE, in his concurring opinion in East Carroll, pointed out that the Court's discussion of the preclearance issue was dictum:
"I consider it unnecessary to reach the question discussed, ante [424 U.S.,] at 638-639, n. 6 [96 S.Ct., at 1085, 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." 424 U.S., at 640, 96 S.Ct., at 1085.
To the extent that the dictum in the East Carroll footnote is inconsistent with our holding today, that dictum is disavowed.
20
Justice WHITE explained why East Carroll did not support the judgment of the Court of Appeals:
"[W]e emphasized [in East Carroll ] that the bodies which submitted the plans did not purport to reapportion themselves and, furthermore, could not even legally do so under federal law because state legislation providing them with such powers had been disapproved by the Attorney General of the United States under § 5 of the Voting Rights Act of 1965. 424 U.S., at 638 n. 6, 637 n. 2, 96 S.Ct., at 1085 n. 6, 1084 n. 2. Under these circumstances, it was concluded that the mere act of submitting a plan was not the equivalent of a legislative Act of reapportionment performed in accordance with the political processes of the community in question." 437 U.S., at 545, 98 S.Ct., at 2500.
21
The District Court in Burns, after striking down Hawaii's Senate apportionment scheme, directed the legislature to enact a proposed interim plan pending the constitutional amendment required for reapportionment under Hawaii law. See 384 U.S., at 80-81, 86 S.Ct., at 1290-1291. The legislature complied with the court's order, but the court found the proposed interim plan unacceptable. On appeal, this Court treated the proposed plan as a legislative plan, despite the fact that the Hawaii Legislature was without power to reapportion itself absent a constitutional amendment.
22
Justice POWELL's opinion made it plain that the crucial factor was the legislature's exercise of its judgment, not its legislative power:
"The essential point is that the Dallas City Council exercised a legislative judgment, reflecting the policy choices of the elected representatives of the people, rather than the remedial directive of a federal court. . . . Th[e] rule of deference to local legislative judgments remains in force even if, as in Burns, our examination of state law suggests that the local body lacks authority to reapportion itself." 437 U.S., at 548, 98 S.Ct., at 2501.
23
In reaching this conclusion, Justice POWELL read East Carroll "as turning on its peculiar facts":
"Because the brief per curiam in East Carroll did not even cite Burns, I would read it as turning on its peculiar facts. In response to the litigation in East Carroll, the legislature enacted a statute enabling police juries and school boards to reapportion themselves by employing at-large elections. That enabling legislation was disapproved by the Attorney General of the United States under § 5 of the Voting Rights Act of 1965, . . . because of its impermissible impact on Negro voters. This determination meant that the specific plans proposed by the school board and police jury in that case would have had unlawful effects. Because their legislative judgment had been found tainted in that respect, it followed that the normal presumption of legitimacy afforded the balances reflected in legislative plans . . . could not be indulged. To the extent that East Carroll implies anything further about the principle established in Burns, the latter must be held to control." 437 U.S., at 549, 98 S.Ct., at 2502.
24
At the outset of his opinion, Justice MARSHALL summarized his position:
"I agree with the majority's decision not to reach the Voting Rights Act question, since it was not presented to either of the courts below. I also agree with the analysis of our past decisions found in Part II of Mr. Justice WHITE's opinion. I cannot agree, however, that the actions of the Dallas City Council are distinguishable from those of the local governing body in East Carroll Parish School Bd. v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976). I therefore conclude that the plan ordered by the District Court here must be evaluated in accordance with the federal common law of remedies applicable to judicially devised reapportionment plans." Id., at 550, 98 S.Ct., at 2502.
In his opinion announcing the judgment of the Court, Justice WHITE pointed out that Texas had not been subject to the Voting Rights Act when the case was pending in the District Court. Id., at 542, 98 S.Ct., at 2498. Justice POWELL, also agreed with the decision not to address the Voting Rights Act. Id., at 549, 98 S.Ct., at 2502.
25
Because the 1975 extension of the Voting Rights Act is the controlling statute in this case, the legislative history of that extension is of particular relevance. See Dougherty County Board of Education v. White, 439 U.S. 32, 46, 99 S.Ct. 368, 376, 58 L.Ed.2d 269.
26
The Senate Report emphasized the importance of the preclearance procedure:
"The provisions of S. 1279 propose to amend the Act so that the special remedies, including Section 5 preclearance, will be operative for an additional ten years. Although the 1965 legislation and the 1970 amendments did, in large part, provide for only five year coverage periods at a time, the Committee concludes that it is imperative that a ten year extension now be adopted in order to insure the applicability of Section 5 protections during the reapportionment and redistricting which will take place subsequent to the 1980 Decennial Census.
"Approximately one-third of the Justice Department's objections have been to redistrictings at the state, county and city levels. (S. Hearings 539-540, 581-582). This past experience ought not be ignored in terms of assessing the future need for the Act. It is ironic that the Supreme Court's 'one man-one vote' ruling [Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964)] has created opportunities to disfranchise minority voters. Having to redraft district lines in compliance with that ruling, jurisdictions may not always take care to void discriminating against minority voters in that process. By providing that Section 5 protections not be removed before 1985, S. 1279 would guarantee Federal protection of minority voting rights during the years that the post-census redistrictings will take place." S.Rep. No. 94-295, pp. 17-18 (1975) (footnote omitted) (Senate Report).
27
Id., at 18.
28
The Committee went on to state that, in its judgment, § 5 had been properly applied by the District Court in Gaillard v. Young, No. 74-1265 (SC 1975). In Gaillard, the District Court invalidated an existing apportionment plan and directed that any remedial plan proposed by the parties be precleared by the Attorney General before it would be embodied in a final decree. Senate Report, at 19. In their brief in this case, petitioners conceded that Gaillard "involved facts identical to those in this case." Brief for Petitioners 25.
29
See, e. g., South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769; Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1.
30
Moreover, even after a federal court has found a districting plan unconstitutional, "redistricting and reapportioning legislative bodies is a legislative task which the federal courts should make every effort not to pre-empt." Wise v. Lipscomb, 437 U.S., at 539, 98 S.Ct., at 2496 (opinion of WHITE, J.) See also Chapman v. Meier, 420 U.S. 1, 27, 95 S.Ct. 751, 766, 42 L.Ed.2d 766. Our prior decisions in the apportionment area indicate that, in the normal case, a court that has invalidated a State's existing appointment plan should enjoin implementation of that plan and give the legislature an opportunity to devise an acceptable replacement before itself undertaking the task of reapportionment. See, e. g., Reynolds v. Sims, 377 U.S. 533, 585-586, 84 S.Ct. 1362, 1394, 12 L.Ed.2d 506; Maryland Committee v. Tawes, 377 U.S. 656, 676, 84 S.Ct. 1429, 1440, 12 L.Ed.2d 595; Davis v. Mann, 377 U.S. 678, 693, 84 S.Ct. 1441, 1449, 12 L.Ed.2d 609; Ely v. Klahr, 403 U.S. 108, 114, and n.6, 91 S.Ct. 1803, 1807, and n.6, 29 L.Ed.2d 352. Cf. Gaffney v. Cummings, 412 U.S. 735, 749, 93 S.Ct. 2321, 2329, 37 L.Ed.2d 298. "[J]udicial relief becomes appropriate only when a legislature fails to reapportion according to federal constitutional requisites in a timely fashion after having had an adequate opportunity to do so." Reynolds, supra, at 586, 84 S.Ct., at 1394; Burns v. Richardson, 384 U.S., at 85, 86 S.Ct., at 1293. Thus, in the normal case, the legislature will enact an apportionment plan to replace that invalidated by the court; such a plan clearly must be precleared under § 5. See Connor v. Waller, 421 U.S. 656, 95 S.Ct. 2003, 44 L.Ed.2d 486 (per curiam).
31
Our decision in United States v. Board of Supervisors of Warren County, 429 U.S. 642, 97 S.Ct. 833, 51 L.Ed.2d 106 (per curiam), illustrates that a District Court's conclusion that a reapportionment plan proposed by a covered jurisdiction complies with constitutional requirements is not a substitute for § 5 review. In Warren County, the Attorney General filed a § 5 action in the District Court. The court enjoined the county from implementing an apportionment plan that had not been precleared under § 5, and directed it to submit a new plan for preclearance. When the county was unable to obtain the Attorney General's approval for either of two proposed plans, it submitted the plans to the District Court. The court adopted one of the plans despite the county's failure to obtain the Attorney General's approval, finding that the plan neither diluted minority voting strength nor violated the one-person, one-vote principle. Id., at 643-644, 97 S.Ct., at 834. This Court reversed, holding that it was error for the District Court to determine the constitutional validity of the county's plan and to order that it be implemented, rather than limiting its inquiry in the § 5 suit to the question whether the county had complied with § 5.
32
For example, in 1976, covered jurisdictions submitted 7,470 proposed changes to the Department of Justice for preclearance under § 5; the Department interposed objections to 62 of those submissions. See Hearings before the Subcommittee on Civil and Constitutional Rights, House Committee on the Judiciary, GAO Report on the Voting Rights Act, 95th Cong., 2d Sess., 35-36 (1978) (statement of Drew S. Days III, Assistant Attorney General, Civil Rights Division).
33
See also H.R.Rep. No. 94-196, pp. 5, 8-11 (1975); H.R.Rep. No. 91-397, pp. 6-8 (1969).
34
The parties appear to agree that the Commissioners Court had authority under Texas law to redraw the boundaries of the commissioners' precincts. Petitioners contend, however, that the Commissioners Court was without power to adopt the particular apportionment plan at issue in this case because it is permitted to redraw the boundaries of election precincts only in a July or August term. The plan in this case was submitted to the District Court in November and was approved by that court in January. See Tex.Elec.Code Ann., Art. 2.04(1) (Vernon Supp.1980). Election precincts are subunits of commissioners' precincts that determine where a voter registers and votes. Because the reapportionment plan submitted by the Commissioners Court resulted in the splitting of several election precincts between two commissioners' precincts, petitioners contend that the plan altered the boundaries of election precincts in violation of state law. Since we conclude that the Commissioners Court's authority under Texas law to enact this plan is irrelevant for purposes of § 5 coverage, we need not resolve this question of state law. At any rate, it is clear that the Commissioners Court possesses general authority to reapportion itself; petitioners challenge only the timing of the submission and adoption of the plan in this case.
35
Petitioners argue that the interposition of a preclearance requirement will encourage dilatory tactics by incumbents who will continue to represent malapportioned districts during the review process. The district courts, however, have ample power to fashion interim remedies to avoid problems of this character.
*
In his dissent, Justice Black stated that his "objection to § 5 is that [it] . . . conflict[s] with the most basic principles of the Constitution." 383 U.S., at 358, 86 S.Ct., at 833. Justice Black added:
"Section 5, by providing that some of the States cannot pass state laws or adopt state constitutional amendments without first being compelled to beg federal authorities to approve their policies, so distorts our constitutional structure of government as to render any distinction drawn in the Constitution between state and federal power almost meaningless. One of the most basic premises upon which our structure of government was founded was that the Federal Government was to have certain specific and limited powers and no others, and all other power was to be reserved either 'to the States respectively, or to the people.' Certainly if all the provisions of our Constitution which limit the power of the Federal Government and reserve other power to the States are to mean anything, they mean at least that the States have power to pass laws and amend their constitutions without first sending their officials hundreds of miles away to beg federal authorities to approve them." Id., at 358-359, 86 S.Ct., at 833-834.
The right freely to vote must be safeguarded vigilantly. If a state law denies or impairs this right, in violation of the Constitution or of a valid federal law, the courts are the proper and traditional forum for redress.
| 12
|
452 U.S. 155
101 S.Ct. 2239
68 L.Ed.2d 744
FORD MOTOR CREDIT COMPANYv.Janet CENANCE et al.
No. 80-1205.
June 1, 1981.
¢s155¢s PER CURIAM.
1
The motion of the American Bankers Association for leave to file a brief as amicus curiae is granted. The motion of the California Bankers Association for leave to file a brief as amicus curiae is granted.
2
These cases were consolidated in the Court of Appeals. Cenance v. Bohn Ford Co., 621 F.2d 130 (CA5 1980). In each, a prospective purchaser of an automobile entered into an installment sales transaction with an automobile dealer. Prior to completion of the transaction the dealer submitted the buyer's credit application to petitioner Ford Motor Credit Co. (FMCC). Once the dealer was notified that the buyer met FMCC's credit standards, the buyer and the dealer executed a retail installment contract. On each contract the following legend appeared: "The foregoing contract hereby is accepted by the Seller and assigned to Ford Motor Credit Company in accordance with the terms of the Assignment set forth on the reverse side hereof." Pursuant to the arrangement between the dealer and FMCC, FMCC purchased each contract without recourse against the dealer. Although FMCC did not assist in the actual negotiations, it provided the dealer with credit forms, including blank retail installment contracts. Although each did so, none of the dealers was obligated to seek financing from FMCC in perfecting its sales transaction.
3
Subsequently, each buyer brought suit in Federal District Court, alleging violations of the Truth in Lending Act, 82 Stat. 146, as amended, 15 U.S.C. § 1601 et seq. The allegations common to all suits were that FMCC was a creditor within the meaning of the Act and that the statement concerning assignment to FMCC did not adequately disclose that status.1 The respective District Courts, D.C., 430 F.Supp. 1064; D.C., 458 F.Supp. 1387, agreed and the Court of Appeals for the Fifth Circuit affirmed. In determining that FMCC was a creditor, the Court of Appeals relied upon its prior decision in Meyers v. Clearview Dodge Sales, Inc., 539 F.2d 511 (CA5 1976). There the court had held under similar facts that it would be elevating form over substance to characterize a party such as FMCC, there Chrysler Credit Corp., as anything but a creditor. In the immediate case, the court reiterated that point:
4
"The Meyers analysis applies with even greater force to the instant situation because here the dealers regularly dealt only with Ford. The dealer and Ford prearranged for the assignment of the finance instrument. At no time did the risk of finance reside with the dealer. The transaction between dealer and automobile purchaser was conditioned upon acceptance of the credit application by Ford. Indeed, the credit application form was prepared by Ford. As in Meyers, it would be elevating form over substance to hold that Ford was anything but an original creditor within the meaning of the Act and Regulation Z." 621 F.2d, at 133.
5
Having concluded that FMCC was a creditor within the meaning of the Act, the Court of Appeals went on to hold that the statement in the retail sales agreement notifying the buyer of the assignment to FMCC was an insufficient disclosure of creditor status in violation of 12 CFR § 226.6(d) (1980). The court also held that FMCC was liable for certain other Truth in Lending Act violations pertinent to each particular suit.
6
FMCC's petition for certiorari challenges these holdings. We grant the petition in major part,2 affirm the holding that FMCC is a creditor within the meaning of the Act, but reverse the holding that the statement revealing the assignment to FMCC was not a sufficient disclosure of creditor status to satisfy § 226.6(d).
7
The Truth in Lending Act, as it stood prior to recent amendments, defined creditors in pertinent part as those "who regularly extend, or arrange for the extension of, credit . . . ." 15 U.S.C. § 1602(f). Regulation Z, promulgated pursuant to the Act, defines the term consistently with the above: " 'Creditor' means a person who in the ordinary course of business regularly extends or arranges for the extension of consumer credit . . . ." 12 CFR § 226.2(s) (1980). On the facts of this case, the above definition easily encompasses both the dealers and FMCC.3 Each dealer arranged for the extension of credit but FMCC actually extended the credit. The facts negate any suggestion that the dealers anticipated financing any of these transactions. The sales were contingent upon FMCC's approval of the credit worthiness of the buyer. The acceptance of the contract and the assignment became operational simultaneously, and the assignment divested the dealer of any risk in the transaction. In short, we agree with the Court of Appeals that it would be elevating form over substance to conclude that FMCC is not a creditor within the meaning of the Act.4
8
Equally formalistic, however, is the conclusion below that the statement notifying the buyer of the assignment to FMCC was an insufficient disclosure of FMCC's creditor status. As the Court of Appeals recognized, other Courts of Appeals that have addressed this precise point have held that such a statement adequately disclosed FMCC's role in the transactions. Sharp v. Ford Motor Credit Co., 615 F.2d 423, 426 (CA7 1980); Augusta v. Marshall Motor Co., 614 F.2d 1085, 1086 (CA6 1979); Milhollin v. Ford Motor Credit Co., 588 F.2d 753, 756-757 (CA9 1978), rev'd on other grounds, 444 U.S. 555, 100 S.Ct. 790, 63 L.Ed.2d 22 (1980). Those courts have reasoned that the statement notifying the buyer that the contract was, upon acceptance, assigned to FMCC served the purpose of the Act by disclosing the nature of the relationship of the finance company to the transaction. It was unnecessary precisely to characterize FMCC as a "creditor." Contrary to the court below, we agree with those Courts of Appeals that have found the notification of assignment to be a sufficient disclosure of creditor status. As we stated in Ford Motor Credit Co. v. Milhollin, supra:
9
"The concept of 'meaningful disclosure' that animates TILA . . . cannot be applied in the abstract. Meaningful disclosure does not mean more disclosure. Rather, it describes a balance between 'competing considerations of complete disclosure . . . and the need to avoid . . . [informational overload]." 444 U.S., at 568, 100 S.Ct., at 798.
10
Here, requiring more disclosure would not meaningfully benefit the consumer and consequently would not serve the purposes of the Act.
11
The decision of the Court of Appeals is accordingly affirmed in part and reversed in part.
12
So ordered.
13
Justice MARSHALL would grant the petition for writ of certiorari because of the conflict among the Circuits and set the cases for plenary consideration.
1
In addition to the failure to disclose creditor status, three of the plaintiffs, Cenance, Strzelecki, and Booker, alleged that tag, title, and registration fees should have been separately disclosed, 12 CFR § 226.4(b)(4) (1980); Cenance also averred that a $1 lien recordation fee should have been separately itemized as a fee paid to public officials, § 226.4(b)(1); and Shropshire and Wiggs alleged that documentary fees should not have been included in the cash-price disclosure since they were in fact part of the financing charge.
2
There were additional violations sustained by the Court of Appeals. The Court of Appeals rejected FMCC's claim that under § 226.6(d) one of these violations should not have been attributed to it since the violation was beyond the "purview" of its relationship with the dealer. We deny FMCC's petition for certiorari insofar as it challenges the Court of Appeals' judgment in this respect.
3
Absent a clear indication of legislative intent to the contrary, the statutory language controls its construction. In addition, the regulations promulgated by the governmental body responsible for interpreting or administering a statute are entitled to considerable respect, Zenith Radio Corp. v. United States, 437 U.S. 443, 450, 98 S.Ct. 2441, 2445, 57 L.Ed.2d 337 (1978), and this is particularly true under the Truth in Lending Act, see Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 566-567, 100 S.Ct. 790, 797-798, 63 L.Ed.2d 22 (1980). These rules are fully applicable here.
4
FMCC does contend, however, that there is an indication in the legislative history that under facts such as these a finance institution should be treated as a subsequent assignee and be afforded the more limited liability that status carries. See 15 U.S.C. § 1614. In this regard petitioner cites the failure of Congress to adopt an amendment to the Act which would have limited the applicability of § 1614 to those subsequent assignees not "in a continuing business relationship with the original creditor." 114 Cong.Rec. 1611 (1968). The failure to adopt this provision, in petitioner's view, indicates an intent to confer upon a financial institution that maintains a continuing business relationship with a particular seller, the status of subsequent assignee. There is little or no force to this position. The proposed provision merely addressed the liability of those subsequent assignees who had a continuing business relationship with the original creditor. The mere fact that joint creditors had a continuing business relationship with one another would not entitle either creditor to the status of subsequent assignee. The failure to adopt the amendment says nothing about the liability of one who is an original creditor within the meaning of the Act. A nominal assignee who in fact is the original extender of credit is not a subsequent assignee within the meaning of § 1614.
| 78
|
452 U.S. 89
101 S.Ct. 2193
68 L.Ed.2d 693
GULF OIL COMPANY et al., Petitioners,v.Wesley P. BERNARD et al.
No. 80-441.
Argued March 30, 1981.
Decided June 1, 1981.
Syllabus
Petitioner Gulf Oil Co. and the Equal Employment Opportunity Commission entered into a conciliation agreement involving alleged discrimination against black and female employees at one of Gulf's refineries. Under this agreement, Gulf undertook to offer backpay to alleged victims of discrimination and began to send notices to employees eligible for backpay, stating the amount available in return for execution of a full release of all discrimination claims. Respondents then filed a class action in Federal District Court against Gulf and petitioner labor union, on behalf of all black present and former employees and rejected applicants for employment, alleging racial discrimination in employment and seeking injunctive, declaratory, and monetary relief. Gulf then filed a motion seeking an order limiting communications from the named plaintiffs (respondents) and their counsel to class members. Ultimately, over respondents' objections, the District Court issued an order, based on the form of order in the Manual for Complex Litigation, imposing a complete ban on all communications concerning the class action between parties or their counsel and any actual or potential class member who was not a formal party, without the court's prior approval. The order stated that if any party or counsel asserted a constitutional right to communicate without prior restraint and did so communicate, he must file a copy of the communication with the court. The court made no findings of fact and did not write an explanatory opinion. The Court of Appeals reversed, holding that the order limiting communications was an unconstitutional prior restraint on expression accorded First Amendment protection.
Held : The District Court in imposing the order in question abused its discretion under the Federal Rules of Civil Procedure. Pp. 99-104.
(a) The order is inconsistent with the general policies embodied in Federal Rule of Civil Procedure 23, which governs class actions in federal district courts. It interfered with respondents' efforts to inform potential class members of the existence of the lawsuit, and may have been particularly injurious not only to respondents but to the class as a whole—because employees at that time were being pressed to decide whether to accept Gulf's backpay offers. In addition, the order made it more difficult for respondents to obtain information about the merits of the case from the persons they sought to represent. Pp. 99-101.
(b) Because of these potential problems, such an order should be based on a clear record and specific findings reflecting a weighing of the need for a limitation and the potential interference with the parties' rights. Only such a determination can ensure that the court is furthering, rather than hindering, the policies embodied in the Federal Rules, especially Rule 23. Moreover, such a weighing should result in a carefully drawn order that limits speech as little as possible, consistent with the parties' rights. Pp. 101-103.
(c) Here, there is no indication of a careful weighing of competing factors, and the record discloses no grounds on which the District Court could have determined that it was necessary or appropriate to impose the order. The fact that the order involved serious restraints on expression, at a minimum, counsels caution on the District Court's part in drafting the order and attention to whether the restraint was justified by a likelihood of serious abuses. Pp. 102-104.
(d) The mere possibility of abuses in class-action litigation does not justify routine adoption of a communications ban that interferes with the formation of a class or the prosecution of a class action in accordance with the Federal Rules. And certainly there was no justification for adopting the form of order recommended by the Manual for Complex Litigation, in the absence of a clear record and specific findings of need. P. 104.
5 Cir., 619 F.2d 459, affirmed.
William G. Duck, Houston, Tex., for petitioners.
Jack Greenberg, New York City, for respondents.
Lawrence G. Wallace, Washington, D. C., for the U. S. et al., as amici curiae, by special leave of Court.
Justice POWELL delivered the opinion of the Court.
1
This is a class action involving allegations of racial discrimination in employment on the part of petitioners, the Gulf Oil Co. (Gulf) and one of the unions at its Port Arthur, Tex., refinery. We granted a writ of certiorari to determine the scope of a district court's authority to limit communications from named plaintiffs and their counsel to prospective class members, during the pendency of a class action. We hold that in the circumstances of this case the District Court exceeded its authority under the Federal Rules of Civil Procedure.
2
* In April 1976, Gulf and the Equal Employment Opportunity Commission (EEOC) entered into a conciliation agreement involving alleged discrimination against black and female employees at the Port Arthur refinery. Gulf agreed to cease various allegedly discriminatory practices, to undertake an affirmative action program covering hiring and promotion, and to offer backpay to alleged victims of discrimination based on a set formula. Gulf began to send notices to the 643 employees eligible for backpay, stating the exact amount available to each person in return for execution within 30 days of a full release of all discrimination claims dating from the relevant time period.1
3
Approximately one month after the signing of the conciliation agreement, on May 18, 1976, respondents filed this class action in the United States District Court for the Eastern District of Texas, on behalf of all black present and former employees, and rejected applicants for employment, at the refinery.2 They alleged racial discrimination in employment and sought injunctive, declaratory, and monetary relief, based on Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Civil Rights Act of 1866, 42 U.S.C. § 1981. The defendants named were Gulf and Local 4-23 of the Oil, Chemical, and Atomic Workers International Union. Plaintiffs' counsel included three lawyers from the NAACP Legal Defense and Education Fund.3 Through this lawsuit, the named plaintiffs sought to vindicate the alleged rights of many of the employees who were receiving settlement offers from Gulf under the conciliation agreement.
4
On May 27, Gulf filed a motion in the District Court seeking an order limiting communications by parties and their counsel with class members. An accompanying brief described the EEOC conciliation agreement, asserting that 452 of the 643 employees entitled to backpay under that agreement had signed releases and been paid by the time the class action was filed. Gulf stated that after it was served in the case, it ceased sending backpay offers and release forms to class members. It then asserted that a lawyer for respond ents, Ulysses Gene Thibodeaux, had attended a meeting of 75 class members on May 22, where he had discussed the case and recommended that the employees not sign the releases sent under the conciliation agreement. Gulf added that Thibodeaux reportedly had advised employees to return checks they already had received, since they could receive at least double the amounts involved through the class action.
5
The court entered a temporary order prohibiting all communications concerning the case from parties or their counsel to potential or actual class members. The order listed several examples of communications that were covered, but stated that it was not limited to these examples. It was not based on any findings of fact.
6
On June 8, Gulf moved for a modification of the order that would allow it to continue mailings to class members, soliciting releases in exchange for the backpay amounts established under the conciliation agreement. Respondents filed a brief in opposition, arguing that the ban on their communications with class members violated the First Amendment. On June 11, the court heard oral argument, but took no evidence. Gulf then filed a supplemental memorandum proposing that the court adopt the language of "Sample Pretrial Order No. 15" in the Manual for Complex Litigation App. § 1.41.4 Respondents replied with another memorandum, accompanied by sworn affidavits of three lawyers. In these affidavits counsel stated that communications with class members were important in order to obtain needed information about the case and to inform the class members of their rights. Two affidavits stated that lawyers had attended the May 22 meeting with employees and discussed the issues in the case but neither advised against accepting the Gulf offer nor represented that the suit would produce twice the amount of backpay available through the conciliation agreement.
7
On June 22, another District Judge issued a modified order adopting Gulf's proposal.5 This order imposed a complete ban on all communications concerning the class action between parties or their counsel and any actual or potential class member who was not a formal party, without the prior approval of the court. It gave examples of forbidden communications, including any solicitation of legal representation of potential or actual class members, and any statements "which may tend to misrepresent the status, purposes and effects of the class action" or "create impressions tending without cause, to reflect adversely on any party, any counsel, this Court, or the administration of justice." The order exempted attorney-client communications initiated by the client, and communications in the regular course of business. It further stated that if any party or counsel "assert[ed] a constitutional right to communicate . . . without prior restraint," and did so communicate, he should file with the court a copy or summary of the communication within five days. The order, finally, exempted communications from Gulf involving the conciliation agreement and its settlement process.
8
The court made no findings of fact and did not write an explanatory opinion. The only justification offered was a statement in the final paragraph of the order:
9
"It is Plaintiff's [sic ] contention that any such provisions as hereinbefore stated that limit communication with potential class members are constitutionally invalid, citing Rodgers v. United States Steel Corporation, 508 F.2d 152 (3rd Cir.1975), cert. denied, 420 U.S. 969 [95 S.Ct. 1386, 43 L.Ed.2d 649] (1975). This Court finds that the Rodgers case is inapplicable, and that this order comports with the requisites set out in the Manual for Complex Litigation . . . which specifically exempts constitutionally protected communication when the substance of such communication is filed with the Court."
10
On July 6, pursuant to the court's order respondents submitted for court approval a proposed leaflet to be sent to the class members.6 This notice urged the class to talk to a lawyer before signing the releases sent by Gulf. It contained the names and addresses of respondents' counsel and referred to this case. Respondents argued that the notice was constitutionally protected and necessary to the conduct of the lawsuit. Gulf opposed the motion. The court waited until August 10 to rule on this motion. On that date, 2 days after the expiration of the 45-day deadline established by the court for acceptance of the Gulf offer by class members,7 the court denied the motion in a one-sentence order containing no explanation. As a result, the named plaintiffs and their counsel were prevented from undertaking any communication with the class members prior to the deadline.
11
On appeal from a subsequent final order,8 respondents argued that the limitations on communications imposed by the District Court were beyond the power granted the court in Federal Rule of Civil Procedure 23(d) and were unconstitutional under the First Amendment. A divided panel of the United States Court of Appeals for the Fifth Circuit affirmed the District Court. 596 F.2d 1249 (1979).
12
The panel majority reasoned that orders limiting communications are within the extensive powers of district courts in managing class litigation. It held that the District Court could easily have concluded that the need to limit communications outweighed any competing interests of respondents, especially since the order merely required prior approval of communications, rather than prohibiting them altogether. Id., at 1259-1261. Turning to respondents' First Amendment argument, the majority held that the order was not a prior restraint because it exempted unapproved communications whenever the parties or their counsel asserted a constitutional privilege in good faith. The court also found no serious "chill" of protected speech. Id., at 1261-1262.
13
Judge Godbold wrote a dissenting opinion arguing that the order limiting communications was not "appropriate" within the meaning of Federal Rule of Civil Procedure 23(d) because the court did not make any finding of actual or imminent abuse. He reasoned that Gulf's unsworn allegations of misconduct could not justify this order, and that a court could not impose such a limitation routinely in all class actions. Id., at 1267-1268. He added that it was improper in this context for the District Court to encourage compliance with the conciliation agreement through such an order. Id., at 1269-1270. Judge Godbold also found that the order violated respondents' First Amendment rights. Id., at 1270-1275.
14
The Fifth Circuit granted a rehearing en banc, and reversed the panel decision concerning the order limiting communications. 619 F.2d 459 (1980). A majority opinion joined by 13 judges held that the order was an unconstitutional prior restraint on expression accorded First Amendment protection.9 The court held that there was no sufficient particularized showing of need to justify such a restraint, that the restraint was overbroad, and that it was not accompanied by the requisite procedural safeguards. Id., at 466-478. Eight judges concurred specially on the theory that it was unnecessary to reach constitutional issues because the order was not based on adequate findings and therefore was not "appropriate" under Federal Rule of Civil Procedure 23(d). Id., at 478, 481. One judge would have affirmed the District Court.
15
We granted a writ of certiorari to review the question whether the order limiting communications was constitutionally permissible. 449 U.S. 1033, 101 S.Ct. 607, 66 L.Ed.2d 495 (1980).
II
16
Rule 23(d) of the Federal Rules of Civil Procedure provides: "(d) ORDERS IN CONDUCT OF ACTIONS. In the conduct of actions to which this rule applied, the court may make appropriate orders: . . . (3) imposing conditions on the representative parties or on intervenors . . . [and] (5) dealing with similar procedural matters."10 As the concurring judges below recognized, 619 F.2d, at 478, 481, prior to reaching any constitutional questions, federal courts must consider nonconstitutional grounds for decision. See Ashwander v. TVA, 297 U.S. 288, 347, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936) (Brandeis, J., concurring). As a result, in this case we first consider the authority of district courts under the Federal Rules to impose sweeping limitations on communications by named plaintiffs and their counsel to prospective class members.
17
More specifically, the question for decision is whether the limiting order entered in this case is consistent with the general policies embodied in Rule 23, which governs class actions in federal court. Class actions serve an important function in our system of civil justice.11 They present, how ever, opportunities for abuse as well as problems for courts and counsel in the management of cases.12 Because of the potential for abuse, a district court has both the duty and the broad authority to exercise control over a class action and to enter appropriate orders governing the conduct of counsel and parties. But this discretion is not unlimited, and indeed is bounded by the relevant provisions of the Federal Rules. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974). Moreover, petitioners concede, as they must, that exercises of this discretion are subject to appellate review. Brief for Petitioners 21, n. 15; see Eisen, supra; Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 359, 98 S.Ct. 2380, 2393, 57 L.Ed.2d 253 (1978).
18
In the present case, we are faced with the unquestionable assertion by respondents that the order created at least potential difficulties for them as they sought to vindicate the legal rights of a class of employees.13 The order interfered with their efforts to inform potential class members of the existence of this lawsuit, and may have been particularly injurious—not only to respondents but to the class as a whole—because the employees at that time were being pressed to decide whether to accept a backpay offer from Gulf that required them to sign a full release of all liability for discriminatory acts.14 In addition, the order made it more difficult for respondents, as the class representatives, to obtain information about the merits of the case from the persons they sought to represent.
19
Because of these potential problems, an order limiting communications between parties and potential class members should be based on a clear record and specific findings that reflect a weighing of the need for a limitation and the potential interference with the rights of the parties.15 Only such a determination can ensure that the court is furthering, rather than hindering, the policies embodied in the Federal Rules of Civil Procedure, especially Rule 23.16 In addition, such a weighing—identifying the potential abuses being addressed—should result in a carefully drawn order that limits speech as little as possible, consistent with the rights of the parties under the circumstances. As the court stated in Coles v. Marsh, 560 F.2d 186, 189 (CA3), cert. denied, 434 U.S. 985, 98 S.Ct. 611, 54 L.Ed.2d 479 (1977):
20
"[T]o the extent that the district court is empowered . . . to restrict certain communications in order to prevent frustration of the policies of Rule 23, it may not exercise the power without a specific record showing by the moving party of the particular abuses by which it is threatened. Moreover, the district court must find that the showing provides a satisfactory basis for relief and that the relief sought would be consistent with the policies of Rule 23 giving explicit consideration to the narrowest possible relief which would protect the respective parties."
III
21
In the present case, one looks in vain for any indication of a careful weighing of competing factors. Indeed, in this respect, the District Court failed to provide any record useful for appellate review. The court made neither factual findings nor legal arguments supporting the need for this sweeping restraint order. Instead, the court adopted in toto the order suggested by the Manual for Complex Litigation—on the apparent assumption that no particularized weighing of the circumstances of the case was necessary.
22
The result was an order requiring prior judicial approval of all communications, with the exception of cases where respondents chose to assert a constitutional right. Even then, respondents were required to preserve all communications for submission to the court within five days.17 The scope of this order is perhaps best illustrated by the fact that the court refused to permit mailing of the one notice respondents submitted for approval. See supra, at 96-97. This notice was intended to encourage employees to rely on the class action for relief, rather than accepting Gulf's offer. The court identified nothing in this notice that it thought was improper and indeed gave no reasons for its negative ruling.
23
We conclude that the imposition of the order was an abuse of discretion. The record reveals no grounds on which the District Court could have determined that it was necessary or appropriate to impose this order.18 Although we do not decide what standards are mandated by the First Amendment in this kind of case, we do observe that the order involved serious restraints on expression. This fact, at minimum, counsels caution on the part of a district court in drafting such an order, and attention to whether the restraint is justified by a likelihood of serious abuses.
24
We recognize the possibility of abuses in class-action litigation, and agree with petitioners that such abuses may implicate communications with potential class members.19 But the mere possibility of abuses does not justify routine adoption of a communications ban that interferes with the formation of a class or the prosecution of a class action in accordance with the Rules. There certainly is no justification for adopting verbatim the form of order recommended by the Manual for Complex Litigation, in the absence of a clear record and specific findings of need. Other, less burdensome remedies may be appropriate.20 Indeed, in many cases there will be no problem requiring remedies at all.
25
In the present case, for the reasons stated above, we hold that the District Court abused its discretion.21 Accordingly, the judgment below is affirmed.
26
It is so ordered.
1
The letter stated that "[b]ecause this offer is personal in nature, Gulf asks that you not discuss it with others." It added, however, that those who did not understand the offer could request that a company official arrange an interview with a Government representative. Brief for United States et al. as Amici Curiae 1a.
2
Three of the named plaintiffs, Bernard, Brown, and Johnson, had filed individual charges before the EEOC in 1967. The Commission pursued conciliation efforts based on these charges until February 1975 when these three persons received letters stating that Gulf and the union no longer wished to entertain conciliation discussions. The letters stated that the three could request "right to sue" letters at any time, and would have 90 days from the receipt of such letters to file suit under Title VII. Bernard and Brown received notices of right to sue from the Commission on June 11, 1976.
The conciliation agreement between Gulf and the EEOC was premised on a separate charge filed against Gulf by the Commission itself in 1968.
3
Two other attorneys also assisted in the representation.
4
The Manual, containing an important compilation of suggested procedures for handling complex federal cases, was published under the supervision of a distinguished group of federal judges. It is printed in full in Part 2 of 1 J. Moore, J. Lucas, H. Fink, D. Weckstein, & J. Wicker, Moore's Federal Practice (1980).
In its proposed order, Gulf added language allowing it to continue paying backpay and obtaining releases under the conciliation agreement. It suggested that the Clerk of the Court should send a notice to class members informing them that they had 45 days in which to decide to accept the Gulf offer.
5
The June 22 order stated, in part:
"In this action, all parties hereto and their counsel are forbidden directly or indirectly, orally or in writing, to communicate concerning such action with any potential or actual class member not a formal party to the action without the consent and approval of the proposed communication and proposed addresses by order of this Court. Any such proposed communication shall be presented to this Court in writing and the designation of or description of all addresses and with a motion and proposed order for prior approval by this Court of the proposed communication. The communications forbidden by this order include, but are not limited to, (a) solicitation directly or indirectly of legal representation of potential and actual class members who are not formal parties to the class action; (b) solicitation of fees and expenses and agreements to pay fees and expenses from potential and actual class members who are not formal parties to the class action; (c) solicitation by formal parties to the class action of requests by class members to opt out in class actions under subparagraph (b)(3) of Rule 23, F.R.Civ.P.; and (d) communications from counsel or a party which may tend to misrepresent the status, purposes and effects of the class action, and of any actual or potential Court orders therein which may create impressions tending, without cause, to reflect adversely on any party, any counsel, this Court, or the administration of justice. The obligations and prohibitions of this order are not exclusive. All other ethical, legal and equitable obligations are unaffected by this order.
"This order does not forbid (1) communications between an attorney and his client or a prospective client, who has on the initiative of the client or prospective client consulted with, employed or proposed to employ the attorney, or (2) communications occurring in the regular course of business or in the performance of the duties of public office or agency (such as the Attorney General) which do not have the effect of soliciting representation by counsel, or misrepresenting the status, purposes or effect of the action and orders therein.
"If any party or counsel for a party asserts a constitutional right to communicate with any member of the class without prior restraint and does so communicate pursuant to that asserted right, he shall within five days after such communication file with the Court a copy of such communication, if in writing, or an accurate and substantially complete summary of the communication if oral."
This section of the order was drawn word-for-word from the Manual for Complex Litigation App. § 1.41. The order then went on to authorize Gulf to continue with the settlement process under the terms of the conciliation agreement, and to direct the Clerk of Court to send the notice described in n. 4, supra. A paragraph near the end of the order then reiterated the proscription on communications:
"(8) [It is ordered that] any further communication, either direct or indirect, oral or in writing (other than those permitted pursuant to paragraph (2) above) from the named parties, their representatives or counsel to the potential or actual class members not formal parties to this action is forbidden."
6
The proposed notice stated:
"ATTENTION BLACK WORKERS OF GULF OIL
"The Company has asked you to sign a release. If you do, you may be giving up very important civil rights. It is important that you fully understand what you are getting in return for the release. IT IS IMPORTANT THAT YOU TALK TO A LAWYER BEFORE YOU SIGN. These lawyers will talk to you FOR FREE : [names and addresses of respondents' counsel].
"These lawyers represent six of your fellow workers in a lawsuit titled Bernard v. Gulf Oil Co., which was filed in Beaumont Federal Court on behalf of all of you. This suit seeks to correct fully the alleged discriminatory practices of Gulf.
"Even if you have already signed the release, talk to a lawyer. You may consult another attorney. If necessary, have him contact the above-named lawyers for more details. All discussions will be kept strictly confidential.
"AGAIN, IT IS IMPORTANT THAT YOU TALK TO A LAWYER. Whatever your decision might be, we will continue to vigorously prosecute this lawsuit in order to correct all the alleged discriminatory practices at Gulf Oil."
7
This order had effected a substantial change in the procedure mandated by the conciliation agreement, which provided that "failure on the part of any member to respond within thirty days shall be interpreted as acceptance of back pay" (emphasis added). App. 59.
8
On January 11, 1977, the District Court granted summary judgment to petitioners, dismissing the complaint as untimely. On appeal, respondents argued that their claims had been presented in timely fashion. Both the Fifth Circuit panel, 596 F.2d 1249, 1254-1258 (1979), and the en banc court, 619 F.2d 459, 463 (1980), held for respondents on this issue and therefore ordered a remand for further proceedings.
9
In holding that the order restricted protected speech, the court relied both on cases involving essentially political litigation. NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); In re Primus, 436 U.S. 412, 98 S.Ct. 1893, 56 L.Ed.2d 417 (1978), and on cases that may be closer to the present case, involving collective efforts to gain economic benefits accorded a specific group of persons under federal law, United Transportation Union v. Michigan Bar, 401 U.S. 576, 91 S.Ct. 1076, 28 L.Ed.2d 339 (1971); Mine Workers v. Illinois Bar Assn., 389 U.S. 217, 88 S.Ct. 353, 19 L.Ed.2d 426 (1967); Railroad Trainmen v. Virginia State Bar, 377 U.S. 1, 84 S.Ct. 1113, 12 L.Ed.2d 89 (1964).
10
Rule 83 provides a more general authorization to district courts, stating that in "all cases not provided for by rule, the district courts may regulate their practice in any manner not inconsistent with these rules."
11
Respondents in this case were performing the customary role of named plaintiffs, who seek to "vindicat[e] the rights of individuals who otherwise might not consider it worth the candle to embark on litigation in which the optimum result might be more than consumed by the cost." Deposit Guaranty Nat. Bank v. Roper, 445 U.S. 326, 338, 100 S.Ct. 1166, 1174, 63 L.Ed.2d 427 (1980). Rule 23 expresses "a policy in favor of having litigation in which common interests, or common questions of law or fact prevail, disposed of where feasible in a single lawsuit." Rodgers v. United States Steel Corp., 508 F.2d 152, 163 (CA3), cert. denied, 423 U.S. 832, 96 S.Ct. 54, 46 L.Ed.2d 50 (1975).
Although traditional concerns about "stirring up" litigation remain relevant in the class-action context, see n. 12, infra, such concerns were particularly misplaced here. Respondents were represented by lawyers from the NAACP Legal Defense and Education Fund—a nonprofit organization dedicated to the vindication of the legal rights of blacks and other citizens. See In re Primus, supra, at 422, 426-431, 98 S.Ct., at 1899, 1901-1904 (distinguishing, with respect to First Amendment protections, between solicitation of clients intended to advance political objectives and solicitation of clients for pecuniary gain).
12
The class-action problems that have emerged since Rule 23 took its present form in 1966 have provoked a considerable amount of comment and discussion. See, e. g., Manual for Complete Litigation; Developments in the Law: Class Actions, 89 Harv.L.Rev. 1318 (1976); Miller, Problems of Administering Judicial Relief in Class Actions under Federal Rule 23(b)(3), 54 F.R.D. 501 (1972).
The potential abuses associated with communications to class members are described in Waldo v. Lakeshore Estates, Inc., 433 F.Supp. 782 (E.D.La.1977). That court referred, inter alia, to the "heightened susceptibilities of nonparty class members to solicitation amounting to barratry as well as the increased opportunities of the parties or counsel to 'drum up' participation in the proceeding." Id., at 790. The court added that "[u]napproved communications to class members that misrepresent the status or effect of the pending action also have an obvious potential for confusion and/or adversely affecting the administration of justice." Id., at 790-791. See also Manual for Complex Litigation App. § 1.41.
13
See generally Comment, Judicial Screening of Class Action Communications, 55 N.Y.U.L.Rev. 671, 699-704 (1980); Note, 88 Harv.L.Rev. 1911, 1917-1920 (1975).
14
In Title VII, Congress expressed a preference for voluntary settlements of disputes through the conciliation process. E. g., Alexander v. Gardner-Denver Co., 415 U.S. 36, 44, 94 S.Ct. 1011, 1017, 39 L.Ed.2d 147 (1974). But, as the en banc majority stated, it is not appropriate to promote such a policy to restricting information relevant to the employee's choice:
"The choice between the lawsuit and accepting Gulf's back pay offer and giving a general release was for each black employee to make. The court could not make it for him, nor should it have freighted his choice with an across-the-board ban that restricted his access to information and advice concerning the choice." 619 F.2d, at 477.
15
As noted infra, we do not reach the question of what requirements the First Amendment may impose in this context. Full consideration of the constitutional issue should await a case with a fully developed record concerning possible abuses of the class-action device.
16
Cf. In re Halkin, 194 U.S.App.D.C. 257, 274, 598 F.2d 176, 193 (1979) ("To establish 'good cause' for a protective order under [Federal Rule of Civil Procedure] 26(c), '[t]he courts have insisted on a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements. . .' ") (quoting 8 C. Wright & A. Miller, Federal Practice and Procedure § 2035, p. 265 (1970)).
17
The order contains a serious ambiguity concerning the response that the court could make if it found no merit in respondents' assertion of a constitutional right with respect to a particular communication. Arguably, this "constitutional" exception was not a realistic option for respondents because they could be exposed to the risk of a contempt citation if the court determined that a communication submitted after-the-fact was not constitutionally protected. See 619 F.2d, at 471 (referring to "the omissions and ambiguities of the order and possible differing constructions as to when, if at all, one is protected against contempt"). At the very least, parties or their counsel would be required to defend their good faith, at the risk of a contempt citation. Because of this fact, and the practical difficulties of the filing requirement, see id., at 470-471, this exception for constitutionally protected speech did little to narrow the scope of the limitation on speech imposed by the court.
18
We agree with the Court of Appeals' refusal to give weight to Gulf's unsworn allegations of misconduct on the part of respondents' attorneys:
"We can assume that the district court did not ground its order on a conclusion that the charges of misconduct made by Gulf were true. Nothing in its order indicates that it did, and, if it did, such a conclusion would have been procedurally improper and without evidentiary support. Rather the court appears to have acted upon the rationale of the Manual that the court has the power to enter a ban on communications in any actual or potential class action as a prophylactic measure against potential abuses envisioned by the Manual." Id., at 466 (footnote omitted).
19
See n. 12, supra.
20
For example, an order requiring parties to file copies of nonprivileged communications to class members with the court may be appropriate in some circumstances.
21
In the conduct of a case, a court often finds it necessary to restrict the free expression of participants, including counsel, witnesses, and jurors. Our decision regarding the need for careful analysis of the particular circumstances is limited to the situation before us—involving a broad restraint on communication with class members. We also note that the rules of ethics properly impose restraints on some forms of expression. See, e. g., ABA Code of Professional Responsibility, DR 7-104 (1980).
| 89
|
452 U.S. 1
101 S.Ct. 2202
68 L.Ed.2d 627
Walter LITTLE, Appellant,v.Gloria STREATER.
No. 79-6779.
Argued Jan. 13, 1981.
Decided June 1, 1981.
Syllabus
After appellee, while unmarried, gave birth to a female child, she identified appellant as the father to the Connecticut Department of Social Services, a requirement stemming from the child's receipt of public assistance. The Department then provided an attorney for appellee to bring a paternity suit against appellant in a Connecticut state court. Appellant moved the trial court to order blood grouping tests on appellee and her child pursuant to a Connecticut statute (§ 46b-168), which includes the provision that the cost of such tests shall be chargeable against the party requesting them. Asserting that he was indigent, appellant asked that the State be ordered to pay for the tests. The trial court granted the motion insofar as it sought the tests but denied the request that they be furnished at the State's expense, with the result that no tests were performed. After a trial, the court found that appellant was the child's father, entered a damages judgment against him, and ordered him to pay child support directly to the State. The Appellate Session of the Connecticut Superior Court affirmed, holding, inter alia, that § 46b-168 does not violate the due process rights of an indigent defendant in a paternity proceeding.
Held: In the circumstances of this case, application of § 46b-168 to deny appellant blood grouping tests because of his lack of financial resources violated the due process guarantee of the Fourteenth Amendment. Pp. 5-17.
(a) Appellant's due process claim is premised on the unique quality of blood grouping tests as a source of exculpatory evidence, the State's prominent role in the litigation, and the character of paternity suits under Connecticut law. In evaluating that claim, the following factors must be considered: the private interests at stake; the risk that the procedures used will lead to erroneous results and the probable value, if any, of additional or substitute procedural safeguards; and the governmental interests affected. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18. Pp. 5-12.
(b) Assessment of these factors indicates that appellant did not receive the process he was constitutionally due. The private interests implicated are substantial. Given the usual absence of witnesses in a paternity suit, the self-interest coloring the litigants' testimony, Connecticut's onerous evidentiary rule that the reputed father's testimony alone is insufficient to overcome the mother's prima facie case, and the State's refusal to pay for blood grouping tests, the risk is not inconsiderable that an indigent defendant will be erroneously adjudged the father. Furthermore, because of its recognized capacity to definitively exclude a high percentage of falsely accused putative fathers, the availability of scientific blood test evidence clearly would be a valuable procedural safeguard in such cases. And the State's financial interest in avoiding the expenses of blood grouping tests is not significant enough to overcome the substantial private interests involved, particularly where federal funds are available to help defray such expenses and the State could advance such expenses and then tax them as costs to the parties. Thus, without aid in obtaining blood test evidence in a paternity case, an indigent defendant, who faces the State as an adversary when the child is a recipient of public assistance and who must overcome the evidentiary burden Connecticut imposes, lacks "a meaningful opportunity to be heard." Pp. 2209-2211.
Reversed and remanded.
Jon C. Blue, New Haven, Conn., for appellant.
Stephen J. McGovern, Hartford, Conn., for appellee.
Chief Justice BURGER delivered the opinion of the Court.
1
This appeal presents the question whether a Connecticut statute which provides that in paternity actions the cost of blood grouping tests is to be borne by the party requesting them, violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment when applied to deny such tests to indigent defendants.
2
* On May 21, 1975, appellee Gloria Streater, while unmarried, gave birth to a female child, Kenyatta Chantel Streater. As a requirement stemming from her child's receipt of public assistance, appellee identified appellant Walter Little as the child's father to the Connecticut Department of Social Services. See Conn.Gen.Stat. § 46b-169 (1981). The Department then provided an attorney for appellee to bring a paternity suit against appellant in the Court of Common Pleas at New Haven to establish his liability for the child's support.1
3
At the time the paternity action was commenced, appellant was incarcerated in the Connecticut Correctional Institution at Enfield. Through his counsel, who was provided by a legal aid organization, appellant moved the trial court to order blood grouping tests on appellee and her child pursuant to Conn.Gen.Stat. § 52-184 (1977), which later became Conn.Gen.Stat. § 46b-168 (1981) and includes the provision that "[t]he costs of making such tests shall be chargeable against the party making the motion."2 Appellant asserted that he was indigent3 and asked that the State be ordered to pay for the tests. The trial court granted the motion insofar as it sought blood grouping tests but denied the request that they be furnished at the State's expense. App. 8.
4
For "financial reasons," no blood grouping tests were performed even though they had been authorized. Id., at 12. The paternity action was tried to the court on September 28, 1978. Both appellee and appellant, who was still a state prisoner, testified at trial. Id., at 14-19.4 After listening to the testimony, the court found that appellant was the child's father. Id., at 2-20. Following a subsequent hearing on damages, the court entered judgment against appellant in the amount of $6,974.48, which included the "lying-in" expenses of appellee and the child, "accrued maintenance" through October 31, 1978, and the "costs of suit plus reasonable attorney's fees." Ibid. In addition, appellant was ordered to pay child support at the rate of $2 per month—$1 toward the arrearage amount of $6,974.48 and $1 toward a current monthly award of $163.58—directly to Connecticut's Department of Finance and Control. Id., at 20-21.5
5
The Appellate Session of the Connecticut Superior Court affirmed the trial court's judgment in a per curiam opinion that is not officially reported. Relying on its prior decision in Ferro v. Morgan, 35 Conn.Supp. 679, 406 A.2d 873, cert. denied, 177 Conn. 753, 399 A.2d 526 (1979), the Appellate Session held that Conn.Gen.Stat. § 46b-168 (1981) does not violate the due process and equal protection rights of an indigent defendant in a paternity proceeding. The Appellate Session thus found no error in the trial court's denial of appellant's motion that the cost of blood grouping tests be paid by the State. App. 25-26.
6
Thereafter, appellant's petition for certification was denied by the Connecticut Supreme Court, 180 Conn. 756, 414 A.2d 199 (1980); and we noted probable jurisdiction, 449 U.S. 817, 101 S.Ct. 350, 66 L.Ed.2d 212 (1980).
II
7
The Fourteenth Amendment provides in part: "No State shall . . . deprive any person of life, liberty, or property, without due process of law. . . ." Appellant argues that his right to due process was abridged by the refusal, under Conn.Gen.Stat. § 46b-168 (1981 ), to grant his request based on indigency for state-subsidized blood grouping tests.
8
Due process, "unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances." Joint Anti-Facist Refugee Committee v. McGrath, 341 U.S. 123, 162, 71 S.Ct. 624, 643, 95 L.Ed. 817 (1951) (concurring opinion). Rather, it 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). In Boddie v. Connecticut, 401 U.S. 371, 377, 91 S.Ct. 780, 785, 28 L.Ed.2d 113 (1971), the Court held that "due process requires, at a minimum, that absent a countervailing state interest of overriding significance, persons forced to settle their claims of right and duty through the judicial process must be given a meaningful opportunity to be heard." Accord, Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965); Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 656, 94 L.Ed. 865 (1950). And in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976), we explained:
9
"[I]dentification 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."
10
These standards govern appellant's due process claim, which is premised on the unique qualify of blood grouping tests as a source of exculpatory evidence, the State's prominent role in the litigation, and the character of paternity actions under Connecticut law.
11
* The discovery of human blood groups by Dr. Karl Landsteiner in Vienna at the beginning of this century, and subsequent understanding of their hereditary aspects, made possible the eventual use of blood tests to scientifically evaluate allegations of paternity. P. Speiser & F. Smekal, Karl Landsteiner 89-93 (1975). Like their European counterparts, American courts gradually recognized the evidentiary value of blood grouping tests in paternity cases, and the modern status of such tests has been described by one commentator as follows:
12
"As far as the accuracy, reliability, dependability—even infallibility—of the test are concerned, there is no longer any controversy. The result of the test is universally accepted by distinguished scientific and medical authority. There is, in fact, no living authority of repute, medical or legal, who may be cited adversely. . . . [T]here is now . . . practically universal and unanimous judicial willingness to give decisive and controlling evidentiary weight to a blood test exclusion of paternity." S. Schatkin, Disputed Paternity Proceedings § 9.13 (1975).
13
The application of blood tests to the issue of paternity results from certain properties of the human blood groups and types: (a) the blood group and type of any individual can be determined at birth or shortly thereafter; (b) the blood group and type of every individual remain constant throughout life; and (c) the blood groups and types are inherited in accordance with Mendel's laws. Id., § 5.03. If the blood groups and types of the mother and child are known, the possible and impossible blood groups and types of the true father can be determined under the rules of inheritance. For example, a group AB child cannot have a group O parent, but can have a group A, B, or AB parent. Similarly, a child cannot be type M unless one or both parents are type M, and the factor rh' cannot appear in the blood of a child unless present in the blood of one or both parents. Id., §§ 5.03 and 6.02. Since millions of men belong to the possible groups and types, a blood grouping test cannot conclusively establish paternity. However, it can demonstrate nonpaternity, such as where the alleged father belongs to group O and the child is group AB. It is a negative rather than an affirmative test with the potential to scientifically exclude the paternity of a falsely accused putative father.
14
The ability of blood grouping tests to exonerate innocent putative fathers was confirmed by a 1976 report developed jointly by the American Bar Association and the American Medical Association. Miale, Jennings, Rettberg, Sell, & Krause, Joint AMA-ABA Guidelines: Present Status of Serologic Testing in Problems of Disputed Parentage, 10 Family L.Q. 247 (Fall 1976). The joint report recommended the use of seven blood test "systems" ABO, Rh, MNSs, Kell, Duffy, Kidd, and HLA—when investigating questions of paternity. Id., at 257-258. These systems were found to be "reasonable" in cost and to provide a 91% cumulative probability of negating paternity for erroneously accused Negro men and 93% for white men. Id., at 254, 257-258.
15
The effectiveness of the seven systems attests the probative value of blood test evidence in paternity cases. The importance of that scientific evidence is heightened because "[t]here are seldom accurate or reliable eyewitnesses since the sexual activities usually take place in intimate and private surroundings, and the self-serving testimony of a party is of questionable reliability." Larson, Blood Test Exclusion Procedures in Paternity Litigation: The Uniform Acts and Beyond, 13 J.Fam.L. 713 (1973-1974). As Justice BRENNAN wrote while a member of the Appellate Division of the New Jersey Superior Court:
16
"[I]n the field of contested paternity . . . the truth is so often obscured because social pressures create a conspiracy of silence or, worse, induce deliberate falsity.
17
"The value of blood tests as a wholesome aid in the quest for truth in the administration of justice in these matters cannot be gainsaid in this day. Their reliability as an indicator of the truth has been fully established. The substantial weight of medical and legal authority attests their accuracy, not to prove paternity, and not always to disprove it, but 'they can disprove it conclusively in a great many cases provided they are administered by specially qualified experts' . . . ." Cortese v. Cortese, 10 N.J.Super. 152, 156, 76 A.2d 717, 719 (1950).
B
18
Appellant emphasizes that, unlike a common dispute between private parties, the State's involvement in this paternity proceeding was considerable and manifest, giving rise to a constitutional duty. Because appellee's child was a recipient of public assistance, Connecticut law compelled her, upon penalty of fine and imprisonment for contempt, "to disclose the name of the putative father under oath and to institute an action to establish the paternity of said child." Conn.Gen.Stat. § 46b-169 (1981). See Maher v. Doe, 432 U.S. 526, 97 S.Ct. 2474, 53 L.Ed.2d 534 (1977); Roe v. Norton, 422 U.S. 391, 95 S.Ct. 2221, 45 L.Ed.2d 268 (1975).6 The State's Attorney General automatically became a party to the action, and any settlement agreement required his approval or that of the Commissioner of Human Resources or Commissioner of Income Maintenance. See Conn.Gen.Stat. §§ 46b-160 and 46b-170 (1981). The State referred this mandatory paternity suit to appellee's lawyer "for prosecution" and paid his fee as well as all costs of the litigation. App. 10, 20; Tr. of Oral Arg. 30, 34, 40.7 In addition, the State will be the recipient of the monthly support payments to be made by appellant pursuant to the trial court's judgment. App. 21. "State action" has undeniably pervaded this case. Accordingly, appellant need not, and does not, contend that Connecticut has a constitutional obligation to fund blood tests for an indigent's defense in ordinary civil litigation between private parties.
19
The nature of paternity proceedings in Connecticut also bears heavily on appellant's due process claim. Although the State characterizes such proceedings as "civil," see Robertson v. Apuzzo, 170 Conn. 367, 372-373 365 A.2d 824, 827-828 cert. denied 429 U.S. 852, 97 S.Ct. 142, 50 L.Ed.2d 126 (1976), they have "quasi-criminal" overtones. Connecticut Gen.Stat. § 46b-171 (1981) provides that if a putative father "is found guilty, the court shall order him to stand charged with the support and maintenance of such child" (emphasis added); and his subsequent failure to comply with the court's support order is punishable by imprisonment under Conn.Gen.Stat. §§ 46b-171, 46b-215, and 53-304 (1981). Cf. Walker v. Stokes, 45 Ohio App.2d 275, 278, 344 N.E.2d 159, 161 (1975); People v. Doherty, 261 App.Div. 86, 87, 24 N.Y.S.2d 821, 823 (1941).
20
Moreover, the defendant in a Connecticut paternity action faces an unusual evidentiary obstacle. Connecticut's original "bastardy" statute was enacted in 1672, see The Book of the General Laws for the People Within the Jurisdiction of Connecticut 6 (1673), and from 1702 until 1902 it stated in pertinent part: "And if such woman shall continue constant in her accusation, being put to the discovery in the time of her travail, and also examined on the trial of the cause, it shall be prima facie evidence that such accused person is the father of such child." Mosher v. Bennett, 108 Conn. 671, 672, 144 A. 297 (1929). In Booth v. Hart, 43 Conn. 480 (1876), the Connecticut Supreme Court construed this statutory language as follows:
21
"[For 146 years], parties to suits with but one exception could not testify in their own behalf. But in cases of illegitimate children, . . . an exception was made of suits brought by [a mother] for the maintenance of [her] child, and she was allowed to testify who was its father under certain safeguards provided by the statute. And the statute went on to provide that if she should continue constant in her accusation, being examined on oath and put to the discovery in the time of her travail, the person whom she declared to be the father of her child should be adjudged to be so, unless from the evidence introduced by him the triers should be of the opinion that he was innocent of the charge. The existence of these few facts were all that was necessary to maintain the suit in the first instance, and the burden of proof then changed to the defendant, and he was required to prove himself innocent of the accusation by other evidence than his own." Id., at 485.
22
In 1848, the Connecticut Legislature enacted a statute providing that "[n]o person shall be disqualified as a witness in any action by reason of his interest in the event of the same, as a party or otherwise." Id., at 486. Since the defendant in a paternity action was no longer precluded from testifying in his own behalf, the 1848 statute removed the need for the safeguard of putting the complainant "to the discovery in the time of her travail." Ibid. In its modern form, Conn.Gen.Stat. § 46b-160 (1981) simply states that "if such mother or expectant mother continues constant in her accusation, it shall be evidence that the respondent is the father of such child." Nevertheless, in Mosher v. Bennett, supra, at 674, 144 A., at 298, the Connecticut Supreme Court held:
23
"The mother still has the right to rely upon the prima facie case made out by constancy in her accusation. She is no longer required under oath to make discovery at the time of her travail. The prima facie case so made out places upon the reputed father the burden of showing his innocence of the charge, and under our practice he must do this by other evidence than his own." (Emphasis added.) Accord, Kelsaw v. Green, 6 Conn.Cir. 516, 519-520, 276 A.2d 909, 911-912 (1971).8
24
Under Connecticut law, therefore, the defendant in a paternity suit is placed at a distinct disadvantage in that his testimony alone is insufficient to overcome the plaintiff's prima facie case. Among the most probative additional evidence the defendant might offer are the results of blood grouping tests, but if he is indigent, the State essentially denies him that reliable scientific proof by requiring that he bear its cost. See Conn.Gen.Stat. § 46b-168 (1981). In substance, the State has created an adverse presumption regarding the defendant's testimony by elevating the weight to be accorded the mother's imputation of him. If the plaintiff has been "constant" in her accusation of paternity, the defendant carries the burden of proof and faces severe penalties if he does not meet that burden and fails to comply with the judgment entered against him. Yet not only is the State inextricably involved in paternity litigation such as this and responsible for an imbalance between the parties, it in effect forecloses what is potentially a conclusive means for an indigent defendant to surmount that disparity and exonerate himself. Such a practice is irreconcilable with the command of the Due Process Clause.
C
25
Our holding in Mathews v. Eldridge, 424 U.S., at 335, 96 S.Ct., at 903, set forth three elements to be evaluated in determining what process is constitutionally due: the private interests at stake; the risk that the procedures used will lead to erroneous results and the probable value of the suggested procedural safeguard; and the governmental interests affected. Analysis of those considerations weighs in appellant's favor.
26
The private interests implicated here are substantial. Apart from the putative father's pecuniary interest in avoiding a substantial support obligation and liberty interest threatened by the possible sanctions for noncompliance, at issue is the creation of a parent-child relationship. This Court frequently has stressed the importance of familial bonds, whether or not legitimized by marriage, and accorded them constitutional protection. See Stanley v. Illinois, 405 U.S. 645, 651-652, 92 S.Ct. 1208, 1212-13, 31 L.Ed.2d 551 (1972). Just as the termination of such bonds demands procedural fairness, see Lassiter v. Department of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981), so too does their imposition. Through the judicial process, the State properly endeavors to identify the father of a child born out of wedlock and to make him responsible for the child's maintenance. Obviously, both the child and the defendant in a paternity action have a compelling interest in the accuracy of such a determination.9
27
Given the usual absence of witnesses, the self-interest coloring the testimony of the litigants, and the State's onerous evidentiary rule and refusal to pay for blood grouping tests, the risk is not inconsiderable that an indigent defendant in a Connecticut paternity proceeding will be erroneously adjudged the father of the child in question. See generally H. Krause, Illegitimacy: Law and Social Policy 106-108 (1971). Further, because of its recognized capacity to definitively exclude a high percentage of falsely accused putative fathers, the availability of scientific blood test evidence clearly would be a valuable procedural safeguard in such cases. See id., at 123-137; Part II-A, supra. Connecticut has acknowledged as much in § 46b-168 of its statutes by providing for the ordering of blood tests and the admissibility of negative findings. See n. 2, supra. Unlike other evidence that may be susceptible to varying interpretation or disparagement, blood test results, if obtained under proper conditions by qualified experts, are difficult to refute. Thus, access to blood grouping tests for indigent defendants such as appellant would help to insure the correctness of paternity decisions in Connecticut.
28
The State admittedly has a legitimate interest in the welfare of a child born out of wedlock who is receiving public assistance, as well as in securing support for the child from those legally responsible. In addition, it shares the interest of the child and the defendant in an accurate and just determination of paternity. See Regulations of Connecticut State Agencies § 17-82e-4 (1979). Nevertheless, the State also has financial concerns; it wishes to have the paternity actions in which it is involved proceed as economically as possible and, hence, seeks to avoid the expense of blood grouping tests.10 Pursuant to 42 U.S.C. § 655(a)(1) (1976 ed. and Supp. III), however, the states are entitled to reimbursement of 75% of the funds they expend on operation of their approved child support plans, and regulations promulgated under authority of 42 U.S.C. § 1302 make clear that such federal financial participation is available for the development of evidence regarding paternity, "including the use of . . . blood tests." 45 CFR § 304.20(b)(2)(i)(B)(1980). Moreover, following the example of other states, the expense of blood grouping tests for an indigent defendant in a Connecticut paternity suit could be advanced by the State and then taxed as costs to the parties. See Ark.Stat.Ann. § 34.705.1 (1962); Kan.Stat.Ann. § 23-132 (1974); La.Rev.Stat. § 9:397.1 (West Supp.1981); N.H.Rev.Stat.Ann. § 522:3 (1974); Or.Rev.Stat. § 109.256(1) (1979); 42 Pa.Cons.Stat.Ann. § 6135 (Purdon Supp.1981); Tex.Fam.Code Ann. § 13.03(b) (Vernon Supp.1980-1981).11 We must conclude that the State's monetary interest "is hardly significant enough to overcome private interests as important as those here." Lassiter v. Department of Social Services, 452 U.S., at 28, 101 S.Ct., at 2160.
29
Assessment of the Mathews v. Eldridge factors indicates that appellant did not receive the process he was constitutionally due. Without aid in obtaining blood test evidence in a paternity case, an indigent defendant, who faces the State as an adversary when the child is a recipient of public assistance and who must overcome the evidentiary burden Connecticut imposes, lacks "a meaningful opportunity to be heard." Boddie v. Connecticut, 401 U.S., at 377, 91 S.Ct., at 785.12 Therefore, "the requirement of 'fundamental fairness' " expressed by the Due Process Clause was not satisfied here. Lassiter v. Department of Social Services, 452 U.S., at 24, 101 S.Ct., at 2158.
III
30
"[A] statute . . . may be held constitutionally invalid as applied when it operates to deprive an individual of a protected right although its general validity as a measure enacted in the legitimate exercise of state power is beyond question." Boddie v. Connecticut, 401 U.S., at 379, 91 S.Ct., at 786. Thus, "a cost requirement, valid on its face, may offend due process because it operates to foreclose a particular party's opportunity to be heard." Id., at 380, 91 S.Ct., at 787. We hold that, in these specific circumstances, the application of Conn.Gen.Stat. § 46b-168 (1981) to deny appellant blood grouping tests because of his lack of financial resources violated the due process guarantee of the Fourteenth Amendment.13 Accordingly, the judgment of the Appellate Session of the Connecticut Superior Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
31
So ordered.
1
While the case was pending, the Court of Common Pleas was merged with the Superior Court of Connecticut. See Conn.Gen.Stat. § 51-164s (1981).
2
In its entirety, Conn.Gen.Stat. § 46b-168 (1981) states:
"In any proceeding in which a question of paternity is an issue, the court, on motion of any party, may order the mother, her child and the putative father or the husband of the mother to submit to one or more blood grouping tests, to be made by a qualified physician or other qualified person, designated by the court, to determine whether or not the putative father or the husband of the mother can be excluded as being the father of the child. The results of such tests shall be admissible in evidence only in cases where such results establish definite exclusion of the putative father or such husband as such father. The costs of making such tests shall be chargeable against the party making the motion."
3
Appellant's financial affidavit, which was filed with the motion, showed that he had weekly income of $5, and expenses of $5, and no assets. App. 7. The trial court later specifically found that, at the time of the motion, appellant "was indigent and could not afford to pay the costs for blood grouping tests." Id., at 23.
4
Although appellant admitted intimacy with appellee, he expressed doubt that he was the child's father because of appellee's alleged relationship with another man and because she had not allowed him to see the child. Id., at 17-18.
5
The minimal sum of $2 was ordered presumably because appellant was indigent and incarcerated. However, his payments to the State are subject to future increase pursuant to Conn.Gen.Stat. § 46b-171 (1981), which provides that "[a]ny order for the payment of [child] support . . . may at any time thereafter be set aside or altered by any court issuing such order."
6
In response to an interrogatory, appellee, through her attorney, stated that her "continuing eligibility for [public] assistance required her to disclose [the] father's identity." App. 10.
Connecticut's disclosure requirement is fostered by 42 U.S.C. § 654(4), which directs that, as to any child born out of wedlock for whom benefits under the Aid to Families with Dependent Children program are claimed, the states must undertake "to establish . . . paternity . . . unless . . . it is against the best interests of the child to do so" and "to secure support for such child from his parent." See also 45 CFR § 232.12 (1980).
7
At oral argument, the Assistant Attorney General of Connecticut acknowledged that the cost of any witnesses for the plaintiff in a proceeding such as this also would be paid by the State. Tr. of Oral Arg. 45.
8
At oral argument, the State's Assistant Attorney General represented that "[c]urrently th[is] is the law of Connecticut," id., at 46; and, when presented with a hypothetical situation, his response illustrated the practical operation of the evidentiary rule:
"QUESTION: [D]oes that mean . . . that [if] she takes the stand [and says], he's the father, he's the father, he's the father, he's the father. She never deviates. . . . He takes the stand and says, I am not, I am not, I am not, I am not. And the factfinder believes him and doesn't believe her, you're saying—
* * * * *
"[COUNSEL'S ANSWER]: If that was the testimony, she would win." Id., at 44.
9
In its report on the 1974 Social Services Amendments to the Social Security Act, 42 U.S.C. §§ 654, 655, et al., the Senate Finance Committee stated:
"In taking the position that a child born out of wedlock has a right to have its paternity ascertained in a fair and efficient manner, the [C]ommittee acknowledges that legislation must recognize the interest primarily at stake in the paternity action to be that of the child. . . . The Committee is convinced that . . . paternity can be ascertained with reasonable assurance, particularly through the use of scientifically conducted blood typing." S.Rep.No. 93-1356, p. 52 (1974), U.S.Code Cong. & Admin.News, 1974, pp. 8133, 8155. See n.6, supra.
10
Laboratories surveyed in a 1977 study sponsored by the Department of Health, Education and Welfare (now in part the Department of Health and Human Services) charged an average of approximately $245 for a battery of test systems that led to a minimum exclusion rate of 80%. HEW Office of Child Support Enforcement, Blood Testing to Establish Paternity 35-37 (1977 Condensed Report). According to appellant, blood grouping tests were available at the Hartford Hospital for $250 at the time this paternity action was pending trial, but the cost has since been increased to $460. Brief for Appellant 4, and n. 5.
11
Other jurisdictions also have statutes by which blood grouping tests can be made available to indigents. See, e. g., Ala.Code § 26-12-5 (1977); D.C.Code § 16-2343 (Supp. V 1978); Haw.Rev.Stat. § 584-16 (1976); Md.Ann.Code § 16-66G (Supp.1980); Mich.Comp.Laws § 722.716(c) (1970); Minn.Stat. § 257.69(2) (1980); N.D.Cent.Code § 14-17-15 (Supp.1977); Utah Code Ann. § 78-25-23 (1977); Wis.Stat.Ann. § 767.48(5) (West Supp.1980). In addition, the highest courts of Colorado, Massachusetts, and West Virginia have held that putative fathers may not constitutionally be denied access to blood grouping tests on the basis of indigency. See Franklin v. District Court, 194 Colo. 189, 571 P.2d 1072 (1977); Commonwealth v. Possehl, 355 Mass. 575, 246 N.E.2d 667 (1969); State ex rel. Graves v. Daugherty, 266 S.E.2d 142 (W.Va.1980).
Apart from Connecticut, it also appears that North Carolina requires all defendants requesting blood tests in paternity proceedings, irrespective of means, "to initially be responsible for any of the expenses thereof" or do without them. N.C.Gen.Stat. § 8-50.1(b)(2) (Supp.1979).
12
In Boddie, we held that due process prohibits a state from denying an indigent access to its divorce courts because of inability to pay filing fees and costs. However, in United States v. Kras, 409 U.S. 434, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973), and Ortwein v. Schwab, 410 U.S. 656, 93 S.Ct. 1172, 35 L.Ed.2d 572 (1973), the Court concluded that due process does not require waiver of filing fees for an indigent seeking a discharge in bankruptcy or appellate review of an agency determination resulting in reduced welfare benefits. Our decisions in Kras and Ortwein emphasized the availability of other relief and the less "fundamental" character of the private interests at stake than those implicated in Boddie. Because appellant has no choice of an alternative forum and his interests, as well as those of the child, are constitutionally significant, this case is comparable to Boddie rather than to Kras and Ortwein.
13
Because of our disposition of appellant's due process claim, we need not consider whether the statute, as applied, also violated the Equal Protection Clause.
| 12
|
452 U.S. 18
101 S.Ct. 2153
68 L.Ed.2d 640
Abby Gail LASSITER, Petitioner,v.DEPARTMENT OF SOCIAL SERVICES OF DURHAM COUNTY, NORTH CAROLINA.
No. 79-6423.
Argued Feb. 23, 1981.
Decided June 1, 1981.
Rehearing Denied Aug. 28, 1981.
See 453 U.S. 927, 102 S.Ct. 889.
Syllabus
In 1975, a North Carolina state court adjudicated petitioner's infant son to be a neglected child and transferred him to the custody of respondent Durham County Department of Social Services. A year later, petitioner was convicted of second-degree murder, and she began a sentence of 25 to 40 years of imprisonment. In 1978, respondent petitioned the court to terminate petitioner's parental rights. Petitioner was brought from prison to the hearing on the petition, and the court, after determining, sua sponte, that she had been given ample opportunity to obtain counsel and that her failure to do so was without just cause, did not postpone the proceedings. Petitioner did not aver that she was indigent, and the court did not appoint counsel for her. At the hearing, petitioner cross-examined a social worker from respondent, and both petitioner and her mother testified under the court's questioning. The court thereafter terminated petitioner's parental status, finding that she had not contacted respondent about her child since December 1975, and that she had "wilfully failed to maintain concern or responsibility for the welfare of the minor." The North Carolina Court of Appeals rejected petitioner's sole contention on appeal that because she was indigent, the Due Process Clause of the Fourteenth Amendment required the State to provide counsel for her. The North Carolina Supreme Court summarily denied discretionary review.
Held :
1. The Constitution does not require the appointment of counsel for indigent parents in every parental status termination proceeding. The decision whether due process calls for the appointment of counsel is to be answered in the first instance by the trial court, subject to appellate review. Pp. 2158-2162.
(a) With regard to what the "fundamental fairness" requirement of the Due Process Clause means concerning the right to appointed counsel, there is a presumption that an indigent litigant has a right to appointed counsel only when, if he loses, he may be deprived of his physical liberty. The other elements of the due process decision—the private interest at stake, the government's interest, and the risk that the procedures used will lead to erroneous decisions, Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18—must be balanced against each other and then weighed against the presumption. Pp. 25-27.
(b) The parent's interest in the accuracy and justice of the decision to terminate parental status is an extremely important one (and may be supplemented by the dangers of criminal liability inherent in some termination proceedings); the State shares with the parent an interest in a correct decision, has a relatively weak pecuniary interest in avoiding the expense of appointed counsel and the cost of the lengthened proceedings his presence may cause, and, in some but not all cases, has a possibly stronger interest in informal procedures; and the complexity of the proceeding and the incapacity of the uncounseled parent could be, but would not always be, great enough to make the risk of an erroneous deprivation of the parent's rights insupportably high. Thus if, in a given case, the parent's interests were at their strongest, the State's interests were at their weakest, and the risks of error were at their peak, the Eldridge factors would overcome the presumption against the right to appointed counsel, and due process would require appointment of counsel. Pp. 27-32.
2. In the circumstances of this case, the trial judge did not deny petitioner due process of law when he did not appoint counsel for her. The record shows, inter alia, that the petition to terminate petitioner's parental rights contained no allegations of neglect or abuse upon which criminal charges could be based; no expert witnesses testified; the case presented no specially troublesome points of law; the presence of counsel could not have made a determinative difference for petitioner; she had expressly declined to appear at the 1975 child custody hearing; and the trial court found that her failure to make an effort to contest the termination proceeding was without cause. Pp.32-33.
43 N.C.App. 525, 259 S.E.2d 336, affirmed.
Leowen Evans, Raleigh, N.C., for petitioner, pro hac vice, by special leave of Court.
Thomas Russell Odom, Bolton, N.C., for respondent.
Steven Mansfield Shaber, Raleigh, N.C., for state of North Carolina, as amicus curiae, by special leave of Court.
Justice STEWART delivered the opinion of the Court.
1
* In the late spring of 1975, after hearing evidence that the petitioner, Abby Gail Lassiter, had not provided her infant son William with proper medical care, the District Court of Durham County, N. C., adjudicated him a neglected child and transferred him to the custody of the Durham County Department of Social Services, the respondent here. A year later, Ms. Lassiter was charged with first-degree murder, was convicted of second-degree murder, and began a sentence of 25 to 40 years of imprisonment.1 In 1978 the Department petitioned the court to terminate Ms. Lassiter's parental rights because, the Department alleged, she "has not had any contact with the child since December of 1975" and "has willfully left the child in foster care for more than two consecutive years without showing that substantial progress has been made in correcting the conditions which led to the removal of the child, or without showing a positive response to the diligent efforts of the Department of Social Services to strengthen her relationship to the child, or to make and follow through with constructive planning for the future of the child."
2
Ms. Lassiter was served with the petition and with notice that a hearing on it would be held. Although her mother had retained counsel for her in connection with an effort to invalidate the murder conviction, Ms. Lassiter never mentioned the forthcoming hearing to him (or, for that matter, to any other person except, she said, to "someone" in the prison). At the behest of the Department of Social Services' attorney, she was brought from prison to the hearing, which was held August 31, 1978. The hearing opened, apparently at the judge's insistance, with a discussion of whether Ms. Lassiter should have more time in which to find legal assistance. Since the court concluded that she "has had ample opportunity to seek and obtain counsel prior to the hearing of this matter, and [that] her failure to do so is without just cause," the court did not postpone the proceedings. Ms. Lassiter did not aver that she was indigent, and the court did not appoint counsel for her.
3
A social worker from the respondent Department was the first witness. She testified that in 1975 the Department "received a complaint from Duke Pediatrics that William had not been followed in the pediatric clinic for medical problems and that they were having difficulty in locating Ms. Lassiter. . . ." She said that in May 1975 a social worker had taken William to the hospital, where doctors asked that he stay "because of breathing difficulties [and] malnutrition and [because] there was a great deal of scarring that indicated that he had a severe infection that had gone untreated." The witness further testified that, except for one "prearranged" visit and a chance meeting on the street, Ms. Lassiter had not seen William after he had come into the State's custody, and that neither Ms. Lassiter nor her mother had "made any contact with the Department of Social Services regarding that child." When asked whether William should be placed in his grandmother's custody, the social worker said he should not, since the grandmother "has indicated to me on a number of occasions that she was not able to take responsibility for the child" and since "I have checked with people in the community and from Ms. Lassiter's church who also feel that this additional responsibility would be more than she can handle." The social worker added that William "has not seen his grandmother since the chance meeting in July of '76 and that was the only time."
4
After the direct examination of the social worker, the judge said:
5
"I notice we made extensive findings in June of '75 that you were served with papers and called the social services and told them you weren't coming; and the serious lack of medical treatment. And, as I have said in my findings of the 16th day of June '75, the Court finds that the grandmother, Ms. Lucille Lassiter, mother of Abby Gail Lassiter, filed a complaint on the 8th day of May, 1975, alleging that the daughter often left the children, Candina, Felicia and William L. with her for days without providing money or food while she was gone."
6
Ms. Lassiter conducted a cross-examination of the social worker, who firmly reiterated her earlier testimony. The judge explained several times, with varying degrees of clarity, that Ms. Lassiter should only ask questions at this stage; many of her questions were disallowed because they were not really questions, but arguments.
7
Ms. Lassiter herself then testified, under the judge's questioning, that she had properly cared for William. Under cross-examination, she said that she had seen William more than five or six times after he had been taken from her custody and that, if William could not be with her, she wanted him to be with her mother since "He knows us. Children know they family. . . . They know they people, they know they family and that child knows us anywhere. . . . I got four more other children. Three girls and a boy and they know they little brother when they see him."
8
Ms. Lassiter's mother was then called as a witness. She denied, under the questioning of the judge, that she had filed the complaint against Ms. Lassiter, and on cross-examination she denied both having failed to visit William when he was in the State's custody and having said that she could not care for him.
9
The court found that Ms. Lassiter "has not contacted the Department of Social Services about her child since December, 1975, has not expressed any concern for his care and welfare, and has made no efforts to plan for his future." Because Ms. Lassiter thus had "wilfully failed to maintain concern or responsibility for the welfare of the minor," and because it was "in the best interests of the minor," the court terminated Ms. Lassiter's status as William's parent.2
10
On appeal, Ms. Lassiter argued only that, because she was indigent, the Due Process Clause of the Fourteenth Amendment entitled her to the assistance of counsel, and that the trial court had therefore erred in not requiring the State to provide counsel for her. The North Carolina Court of Appeals decided that "[w]hile this State action does invade a protected area of individual privacy, the invasion is not so serious or unreasonable as to compel us to hold that appointment of counsel for indigent parents is constitutionally mandated." In re Lassiter, 43 N.C.App. 525, 527, 259 S.E.2d 336, 337. The Supreme Court of North Carolina summarily denied Ms. Lassiter's application for discretionary review, 299 N.C. 120, 262 S.E.2d 6, and we granted certiorari to consider the petitioner's claim under the Due Process Clause of the Fourteenth Amendment, 449 U.S. 819, 101 S.Ct. 70, 66 L.Ed.2d 21.
II
11
For all its consequence, "due process" has never been, and perhaps can never be, precisely defined. "[U]nlike some legal rules," this Court has said, due process "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. Rather, the phrase expresses the requirement of "fundamental fairness," a requirement whose meaning can be as opaque as its importance is lofty. Applying the Due Process Clause is therefore an uncertain enterprise which must discover what "fundamental fairness" consists of in a particular situation by first considering any relevant precedents and then by assessing the several interests that are at stake.
A.
12
The pre-eminent generalization that emerges from this Court's precedents on an indigent's right to appointed counsel is that such a right has been recognized to exist only where the litigant may lose his physical liberty if he loses the litigation. Thus, when the Court overruled the principle of Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595, that counsel in criminal trials need be appointed only where the circumstances in a given case demand it, the Court did so in the case of a man sentenced to prison for five years. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. And thus Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530, established that counsel must be provided before any indigent may be sentenced to prison, even where the crime is petty and the prison term brief.
13
That it is the defendant's interest in personal freedom, and not simply the special Sixth and Fourteenth Amendments right to counsel in criminal cases, which triggers the right to appointed counsel is demonstrated by the Court's announcement in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527, that "the Due Process Clause of the Fourteenth Amendment requires that in respect of proceedings to determine delinquency which may result in commitment to an institution in which the juvenile's freedom is curtailed," the juvenile has a right to appointed counsel even though proceedings may be styled "civil" and not "criminal." Id., at 41, 87 S.Ct., at 1451 (emphasis added). Similarly, four of the five Justices who reached the merits in Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552, concluded that an indigent prisoner is entitled to appointed counsel before being involuntarily transferred for treatment to a state mental hospital. The fifth Justice differed from the other four only in declining to exclude the "possibility that the required assistance may be rendered by competent laymen in some cases." Id., at 500, 100 S.Ct., at 1267 (separate opinion of POWELL, J.).
14
Significantly, as a litigant's interest in personal liberty diminishes, so does his right to appointed counsel. In Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656, the Court gauged the due process rights of a previously sentenced probationer at a probation-revocation hearing. In Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2599, 33 L.Ed.2d 484, which involved an analogous hearing to revoke parole, the Court had said: "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." Relying on that discussion, the Court in Scarpelli declined to hold that indigent probationers have, per se, a right to counsel at revocation hearings, and instead left the decision whether counsel should be appointed to be made on a case-by-case basis.
15
Finally, the Court has refused to extend the right to appointed counsel to include prosecutions which, though criminal, do not result in the defendant's loss of personal liberty. The Court in Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383, for instance, interpreted the "central premise of Argersinger" to be "that actual imprisonment is a penalty different in kind from fines or the mere threat of imprisonment," and the Court endorsed that premise as "eminently sound and warrant[ing] adoption of actual imprisonment as the line defining the constitutional right to appointment of counsel." Id., 440 U.S., at 373, 99 S.Ct., at 1162. The Court thus held "that the Sixth and Fourteenth Amendments to the United States Constitution require only that no indigent criminal defendant be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense." Id., at 373-374, 99 S.Ct., at 1162.
16
In sum, the Court's precedents speak with one voice about what "fundamental fairness" has meant when the Court has considered the right to appointed counsel, and we thus draw from them the presumption that an indigent litigant has a right to appointed counsel only when, if he loses, he may be deprived of his physical liberty. It is against this presumption that all the other elements in the due process decision must be measured.
B
17
The case of Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18, propounds three elements to be evaluated in deciding what due process requires, viz., the private interests at stake, the government's interest, and the risk that the procedures used will lead to erroneous decisions. We must balance these elements against each other, and then set their net weight in the scales against the presumption that there is a right to appointed counsel only where the indigent, if he is unsuccessful, may lose his personal freedom.
18
This Court's decisions have by now made plain beyond the need for multiple citation that a parent's desire for and right to "the companionship, care, custody and management of his or her children" is an important interest that "undeniably warrants deference and, absent a powerful countervailing interest, protection." Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed. 551. Here the State has sought not simply to infringe upon that interest but to end it. If the State prevails, it will have worked a unique kind of deprivation. Cf. May v. Anderson, 345 U.S. 528, 533, 73 S.Ct. 840, 843, 97 L.Ed. 1221; Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62. A parent's interest in the accuracy and injustice of the decision to terminate his or her parental status is, therefore a commanding one.3
19
Since the State has an urgent interest in the welfare of the child, it shares the parent's interest in an accurate and just decision. For this reason, the State may share the indigent parent's interest in the availability of appointed counsel. If, as our adversary system presupposes, accurate and just results are most likely to be obtained through the equal contest of opposed interests, the State's interest in the child's welfare may perhaps best be served by a hearing in which both the parent and the State acting for the child are represented by counsel, without whom the contest of interests may become unwholesomely unequal. North Carolina itself acknowledges as much by providing that where a parent files a written answer to a termination petition, the State must supply a lawyer to represent the child. N.C. Gen.Stat. § 7A-289.29 (Supp.1979).
20
The State's interests, however, clearly diverge from the parent's insofar as the State wishes the termination decision to be made as economically as possible and thus wants to avoid both the expense of appointed counsel and the cost of the lengthened proceedings his presence may cause. But though the State's pecuniary interest is legitimate, it is hardly significant enough to overcome private interests as important as those here, particularly in light of the concession in the respondent's brief that the "potential costs of appointed counsel in termination proceedings . . . is [sic] admittedly de minimis compared to the costs in all criminal actions."
21
Finally, consideration must be given to the risk that a parent will be erroneously deprived of his or her child because the parent is not represented by counsel. North Carolina law now seeks to assure accurate decisions by establishing the following procedures: A petition to terminate parental rights may be filed only by a parent seeking the termination of the other parent's rights, by a county department of social services or licensed child-placing agency with custody of the child, or by a person with whom the child has lived continuously for the two years preceding the petition. § 7A-289.24. A petition must describe facts sufficient to warrant a finding that one of the grounds for termination exists, § 7A-289.25(6), and the parent must be notified of the petition and given 30 days in which to file a written answer to it, § 7A-289.27. If that answer denies a material allegation, the court must, as has been noted, appoint a lawyer as the child's guardian ad litem and must conduct a special hearing to resolve the issues raised by the petition and the answer. § 7A-289.29. If the parent files no answer, "the court shall issue an order terminating all parental and custodial rights . . .; provided the court shall order a hearing on the petition and may examine the petitioner or others on the facts alleged in the petition." § 7A-289.28. Findings of fact are made by a court sitting without a jury and must "be based on clear, cogent, and convincing evidence." § 7A-289.30. Any party may appeal who gives notice of appeal within 10 days after the hearing. § 7A-289.34.4
22
The respondent argues that the subject of a termination hearing—the parent's relationship with her child—far from being abstruse, technical, or unfamiliar, is one as to which the parent must be uniquely well informed and to which the parent must have given prolonged thought. The respondent also contends that a termination hearing is not likely to produce difficult points of evidentiary law, or even of substantive law, since the evidentiary problems peculiar to criminal trials are not present and since the standards for termination are not complicated. In fact, the respondent reports, the North Carolina Departments of Social Services are themselves sometimes represented at termination hearings by social workers instead of by lawyers.5
23
Yet the ultimate issues with which a termination hearing deals are not always simple, however commonplace they may be. Expert medical and psychiatric testimony, which few parents are equipped to understand and fewer still to confute, is sometimes presented. The parents are likely to be people with little education, who have had uncommon difficulty in dealing with life, and who are, at the hearing, thrust into a distressing and disorienting situation. That these factors may combine to overwhelm an uncounseled parent is evident from the findings some courts have made. See, e. g. Davis v. Page, 442 F.Supp. 258, 261 (SD Fla.1977); State v. Jamison, 251 Or. 114, 117-118, 444 P.2d 15, 17 (1968). Thus, courts have generally held that the State must appoint counsel for indigent parents at termination proceedings. State ex rel. Heller v. Miller, 61 Ohio St.2d 6, 399 N.E.2d 66 (1980); Department of Public Welfare v. J. K. B., 379 Mass. 1, 393 N.E.2d 406 (1979); In re Chad S., 580 P.2d 983 (Okl.1978); In re Myricks, 85 Wash.2d 252, 533 P.2d 841 (1975); Crist v. Division of Youth and Family Services, 128 N.J.Super. 402, 320 A.2d 203 (1974); Danforth v. Maine Dept. of Health and Welfare, 303 A.2d 794 (Me.1973); In re Friesz, 190 Neb. 347, 208 N.W.2d 259 (1973).6 The respondent is able to point to no presently authoritative case, except for the North Carolina judgment now before us, holding that an indigent parent has no due process right to appointed counsel in termination proceedings.
C
24
The dispositive question, which must now be addressed, is whether the three Eldridge factors, when weighed against the presumption that there is no right to appointed counsel in the absence of at least a potential deprivation of physical liberty, suffice to rebut that presumption and thus to lead to the conclusion that the Due Process Clause requires the appointment of counsel when a State seeks to terminate an indigent's parental status. To summarize the above discussion of the Eldridge factors: the parent's interest is an extremely important one (and may be supplemented by the dangers of criminal liability inherent in some termination proceedings); the State shares with the parent an interest in a correct decision, has a relatively weak pecuniary interest, and, in some but not all cases, has a possibly stronger interest in informal procedures; and the complexity of the proceeding and the incapacity of the uncounseled parent could be, but would not always be, great enough to make the risk of an erroneous deprivation of the parent's rights insupportably high.
25
If, in a given case, the parent's interests were at their strongest, the State's interests were at their weakest, and the risks of error were at their peak, it could not be said that the Eldridge factors did not overcome the presumption against the right to appointed counsel, and that due process did not therefore require the appointment of counsel. But since the Eldridge factors will not always be so distributed, and since "due process is not so rigid as to require that the significant interests in informality, flexibility and economy must always be sacrificed," Gagnon v. Scarpelli, 411 U.S., at 788, 93 S.Ct., at 1762, neither can we say that the Constitution requires the appointment of counsel in every parental termination proceeding. We therefore adopt the standard found appropriate in Gagnon v. Scarpelli, and leave the decision whether due process calls for the appointment of counsel for indigent parents in termination proceedings to be answered in the first instance by the trial court, subject, of course, to appellate review. See, e. g., Wood v. Georgia, 450 U.S. 261, 101 S.Ct. 1097, 67 L.Ed.2d 220.
III
26
Here, as in Scarpelli, "[i]t is neither possible nor prudent to attempt to formulate a precise and detailed set of guidelines to be followed in determining when the providing of counsel is necessary to meet the applicable due process requirements," since here, as in that case, "[t]he facts and circumstances . . . are susceptible of almost infinite variation. . . ." 411 U.S., at 790, 93 S.Ct., at 1764. Nevertheless, because child-custody litigation must be concluded as rapidly as is consistent with fairness,7 we decide today whether the trial judge denied Ms. Lassiter due process of law when he did not appoint counsel for her.
27
The respondent represents that the petition to terminate Ms. Lassiter's parental rights contained no allegations of neglect or abuse upon which criminal charges could be based, and hence Ms. Lassiter could not well have argued that she required counsel for that reason. The Department of Social Services was represented at the hearing by counsel, but no expert witnesses testified and the case presented no specially troublesome points of law, either procedural or substantive. While hearsay evidence was no doubt admitted, and while Ms. Lassiter no doubt left incomplete her defense that the Department had not adequately assisted her in rekindling her interest in her son, the weight of the evidence that she had few sparks of such interest was sufficiently great that the presence of counsel for Ms. Lassiter could not have made a determinative difference. True, a lawyer might have done more with the argument that William should live with Ms. Lassiter's mother—but that argument was quite explicitly made by both Lassiters, and the evidence that the elder Ms. Lassiter had said she could not handle another child, that the social worker's investigation had led to a similar conclusion, and that the grandmother had displayed scant interest in the child once he had been removed from her daughter's custody was, though controverted, sufficiently substantial that the absence of counsel's guidance on this point did not render the proceedings fundamentally unfair.8 Finally, a court deciding whether due process requires the appointment of counsel need not ignore a parent's plain demonstration that she is not interested in attending a hearing. Here, the trial court had previously found that Ms. Lassiter had expressly declined to appear at the 1975 child custody hearing, Ms. Lassiter had not even bothered to speak to her retained lawyer after being notified of the termination hearing, and the court specifically found that Ms. Lassiter's failure to make an effort to contest the termination proceeding was without cause. In view of all these circumstances, we hold that the trial court did not err in failing to appoint counsel for Ms. Lassiter.
IV
28
In its Fourteenth Amendment, our Constitution imposes on the States the standards necessary to ensure that judicial proceedings are fundamentally fair. A wise public policy, however, may require that higher standards be adopted than those minimally tolerable under the Constitution. Informed opinion has clearly come to hold that an indigent parent is entitled to the assistance of appointed counsel not only in parental termination proceedings, but also in dependency and neglect proceedings as well. IJA-ABA Standards for Juvenile Justice, Counsel for Private Parties 2.3(b) (1980); Uniform Juvenile Court Act § 26(a), 9A U.L.A. 35 (1979); National Council on Crime and Delinquency, Model Rules for Juvenile Courts, Rule 39 (1969); U.S. Dept. of HEW, Children's Bureau, Legislative Guide for Drafting Family and Juvenile Court Acts § 25(b) (1969); U.S. Dept. of HEW, Children's Bureau, Legislative Guides for the Termination of Parental Rights and Responsibilities and the Adoption of Children, Pt. II, § 8 (1961); National Council on Crime and Delinquency, Standard Juvenile Court Act § 19 (1959). Most significantly, 33 States and the District of Columbia provide statutorily for the appointment of counsel in termination cases. The Court's opinion today in no way implies that the standards increasingly urged by informed public opinion and now widely followed by the States are other than enlightened and wise.
29
For the reasons stated in this opinion, the judgment is affirmed.
30
It is so ordered.
31
Chief Justice BURGER, concurring.
32
I join the Court's opinion and add only a few words to emphasize a factor I believe is misconceived by the dissenters. The purpose of the termination proceeding at issue here was not "punitive." Post, at 48. On the contrary, its purpose was protective of the child's best interests. Given the record in this case, which involves the parental rights of a mother under lengthy sentence for murder who showed little interest in her son, the writ might well have been a "candidate" for dismissal as improvidently granted. See ante, at 32-33. However, I am content to join the narrow holding of the Court, leaving the appointment of counsel in termination proceedings to be determined by the state courts on a case-by-case basis.
33
Justice BLACKMUN, with whom Justice BRENNAN and Justice MARSHALL join, dissenting.
34
The Court today denies an indigent mother the representation of counsel in a judicial proceeding initiated by the State of North Carolina to terminate her parental rights with respect to her youngest child. The Court most appropriately recognizes that the mother's interest is a "commanding one," ante, at 27, and it finds no countervailing state interest of even remotely comparable significance, see ante, at 27-28, 31. Nonetheless, the Court avoids what seems to me the obvious conclusion that due process requires the presence of counsel for a parent threatened with judicial termination of parental rights, and, instead, revives an ad hoc approach thoroughly discredited nearly 20 years ago in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Because I believe that the unique importance of a parent's interest in the care and custody of his or her child cannot constitutionally be extinguished through formal judicial proceedings without the benefit of counsel, I dissent.
35
* This Court is not unfamiliar with the problem of determining under what circumstances legal representation is mandated by the Constitution. In Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942), it reviewed at length both the tradition behind the Sixth Amendment right to counsel in criminal trials and the historical practices of the States in that area. The decision in Betts—that the Sixth Amendment right to counsel did not apply to the States and that the due process guarantee of the Fourteenth Amendment permitted a flexible, case-by-case determination of the defendant's need for counsel in state criminal trials—was overruled in Gideon v. Wainwright, 372 U.S., at 345, 83 S.Ct., at 797. The Court in Gideon rejected the Betts reasoning to the effect that counsel for indigent criminal defendants was " 'not a fundamental right, essential to a fair trial.' " 372 U.S., at 340, 83 S.Ct., at 794 (quoting Betts v. Brady, 316 U.S., at 471), 62 S.Ct., at 1261. Finding the right well founded in its precedents, the Court further concluded that "reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him." 372 U.S., at 344, 83 S.Ct., at 796. Similarly, in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), assistance of counsel was found to be a requisite under the Sixth Amendment, as incorporated into the Fourteenth, even for a misdemeanor offense punishable by imprisonment for less than six months.1
36
Outside the criminal context, however, the Court has relied on the flexible nature of the due process guarantee whenever it has decided that counsel is not constitutionally required. The special purposes of probation revocation determinations, and the informal nature of those administrative proceedings, including the absence of counsel for the State, led the Court to conclude that due process does not require counsel for probationers. Gagnon v. Scarpelli, 411 U.S. 778, 785-789, 93 S.Ct. 1756, 1761-1763, 36 L.Ed.2d 656 (1973). In the case of school disciplinary proceedings, which are brief, informal, and intended in part to be educative, the Court also found no requirement for legal counsel. Goss v. Lopez, 419 U.S. 565, 583, 95 S.Ct. 729, 740, 42 L.Ed.2d 725 (1975). Most recently, the Court declined to intrude the presence of counsel for a minor facing voluntary civil commitment by his parent, because of the parent's substantial role in that decision and because of the decision's essentially medical and informal nature. Parham v. J.R., 442 U.S. 584, 604-609, 99 S.Ct. 2493, 2505, 61 L.Ed.2d 101 (1979).
37
In each of these instances, the Court has recognized that what process is due varies in relation to the interests at stake and the nature of the governmental proceedings. Where the individual's liberty interest is of diminished or less than fundamental stature, or where the prescribed procedure involves informal decisionmaking without the trappings of an adversarial trial-type proceeding, counsel has not been a requisite of due process. Implicit in this analysis is the fact that the contrary conclusion sometimes may be warranted. Where an individual's liberty interest assumes sufficiently weighty constitutional significance, and the State by a formal and adversarial proceeding seeks to curtail that interest, the right to counsel may be necessary to ensure fundamental fairness. See In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). To say this is simply to acknowledge that due process allows for the adoption of different rules to address different situations or contexts.
38
It is not disputed that state intervention to terminate the relationship between petitioner and her child must be accomplished by procedures meeting the requisites of the Due Process Clause. Nor is there any doubt here about the kind of procedure North Carolina has prescribed. North Carolina law requires notice and a trial-type hearing before the State on its own initiative may sever the bonds of parenthood. The decisionmaker is a judge, the rules of evidence are in force, and the State is represented by counsel. The question, then, is whether proceedings in this mold, that relate to a subject so vital, can comport with fundamental fairness when the defendant parent remains unrepresented by counsel. As the Court today properly acknowledges, our consideration of the process due in this context, as in others, must rely on a balancing of the competing private and public interests, an approach succinctly described in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47, L.Ed.2d 18 (1976).2 As does the majority, I evaluate the "three distinct factors" specified in Eldridge: the private interest affected; the risk of error under the procedure employed by the State; and the countervailing governmental interest in support of the challenged procedure.
39
At stake here is "the interest of a parent in the companionship, care, custody, and management of his or her children." Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972). This interest occupies a unique place in our legal culture, given the centrality of family life as the focus for personal meaning and responsibility. "[F]ar more precious . . . than property rights," May v. Anderson, 345 U.S. 528, 533, 73 S.Ct. 840, 843, 97 L.Ed. 1221 (1953), parental rights have been deemed to be among those "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 (1923), and to be more significant and priceless than " 'liberties which derive merely from shifting economic arrangements.' " Stanley v. Illinois, 405 U.S. at 651, 92 S.Ct., at 1212, quoting Kovacs v. Cooper, 336 U.S. 77, 95, 69 S.Ct. 448, 458, 93 L.Ed. 513 (1949) (Frankfurter, J., concurring). Accordingly, although the Constitution is verbally silent on the specific subject of families, freedom of personal choice in matters of family life long has been viewed as a fundamental liberty interest worthy of protection under the Fourteenth Amendment. Smith v. Organization of Foster Families, 431 U.S. 816, 845, 97 S. Ct. 2094, 2110, 53 L.Ed.2d 14 (1977); Moore v. East Cleveland, 431 U.S. 494, 499, 97 S.Ct. 1932, 1935, 52 L.Ed.2d 531 (1977) (plurality opinion); Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944); Pierce v. Society of Sisters, 268 U.S. 510, 534-535, 45 S.Ct. 571, 573, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S., at 399, 43 S.Ct., at 626. Within the general ambit of family integrity, the Court has accorded a high degree of constitutional respect to a natural parent's interest both in controlling the details of the child's upbringing, Wisconsin v. Yoder, 406 U.S. 205, 232-234, 92 S.Ct. 1526, 1541-1542, 32 L.Ed.2d 15 (1972); Pierce v. Society of Sisters, 268 U.S., at 534-535, 45 S.Ct., at 573, and in retaining the custody and companionship of the child, Smith v. Organization of Foster Families, 431 U.S., at 842-847, 97 S.Ct., at 2108-2111; Stanley v. Illinois, 405 U.S., at 651, 92 S.Ct., at 1212.
40
In this case, the State's aim is not simply to influence the parent-child relationship but to extinguish it. A termination of parental rights is both total and irrevocable.3 Unlike other custody proceedings, it leaves the parent with no right to visit or communicate with the child, to participate in, or even to know about, any important decision affecting the child's religious, educational, emotional, or physical development. It is hardly surprising that this forced dissolution of the parent-child relationship has been recognized as a punitive sanction by courts,4 Congress,5 and commentators.6 The Court candidly notes, as it must, ante, at 27, that termination of parental rights by the State is a "unique kind of deprivation."
41
The magnitude of this deprivation is of critical significance in the due process calculus, for the process to which an individual is entitled is in part determined "by the extent to which he may be 'condemned to suffer grievous loss.' " Goldberg v. Kelly, 397 U.S. 254, 263, 90 S.Ct. 1011, 1018, 25 L.Ed.2d 287 (1970), quoting Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 168, 71 S.Ct. 624, 646, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring). See Little v. Streater, 452 U.S. 1, 12, 101 S.Ct. 2202, 2208-2209, 68 L.Ed.2d 627 (1981); Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). Surely there can be few losses more grievous than the abrogation of parental rights. Yet the Court today asserts that this deprivation somehow is less serious than threatened losses deemed to require appointed counsel, because in this instance the parent's own "personal liberty" is not at stake.
42
I do not believe that our cases support the "presumption" asserted, ante, at 26-27, that physical confinement is the only loss of liberty grievous enough to trigger a right to appointed counsel under the Due Process Clause. Indeed, incarceration has been found to be neither a necessary nor a sufficient condition for requiring counsel on behalf of an indigent defendant. The prospect of canceled parole or probation, with its consequent deprivation of personal liberty, has not led the Court to require counsel for a prisoner facing a revocation proceeding. Gagnon v. Scarpelli, 411 U.S., at 785-789, 93 S.Ct., at 1761-1763; Morrissey v. Brewer, 408 U.S., at 489, 92 S.Ct., at 2604. On the other hand, the fact that no new incarceration was threatened by a transfer from prison to a mental hospital did not preclude the Court's recognition of adverse changes in the conditions ofconfinement and of the stigma that presumably is associated with being labeled mentally ill. Vitek v. Jones, 445 U.S. 480, 492, 494, 100 S.Ct. 1254, 1263, 1264, 63 L.Ed.2d 552 (1980). For four Members of the Court, these "other deprivations of liberty," coupled with the possibly diminished mental capacity of the prisoner, compelled the provision of counsel for any indigent prisoner facing a transfer hearing. Id., at 496-497, 100 S.Ct., at 1265 (opinion of WHITE, J., joined by BRENNAN, MARSHALL, and STEVENS, JJ.).7 See also In re Gault, 387 U.S., at 24-25, 87 S.Ct., at 1442.
43
Moreover, the Court's recourse to a "pre-eminent generalization," ante, at 25, misrepresents the importance of our flexible approach to due process. That approach consistently has emphasized attentiveness to the particular context. Once an individual interest is deemed sufficiently substantial or fundamental, determining the constitutional necessity of a requested procedural protection requires that we examine the nature of the proceeding—both the risk of error if the protection is not provided and the burdens created by its imposition.8 Compare Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), with Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 1 (1976), and Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), with Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974).
44
Rather than opting for the insensitive presumption that incarceration is the only loss of liberty sufficiently onerous to justify a right to appointed counsel, I would abide by the Court's enduring commitment to examine the relationships among the interests on both sides, and the appropriateness of counsel in the specific type of proceeding. The fundamental significance of the liberty interest at stake in a parental termination proceeding is undeniable, and I would find this first portion of the due proces balance weighing heavily in favor of refined procedural protections. The second Eldridge factor, namely, the risk of error in the procedure provided by the State, must then be reviewed with some care.
B
45
The method chosen by North Carolina to extinguish parental rights resembles in many respects a criminal prosecution. Unlike the probation revocation procedure reviewed in Gagnon v. Scarpelli, on which the Court so heavily relies, the termination procedure is distinctly formal and adversarial. The State initiates the proceeding by filing a petition in district court, N.C.Gen.Stat. §§ 7A-289.23 and 7A-289.25 (Supp.1979),9 and serving a summons on the parent, § 7A-289.27(1). A state judge presides over the adjudicatory hearing that follows, and the hearing is conducted pursuant to the formal rules of evidence and procedure. N.C.Rule Civ.Proc. 1, N.C.Gen.Stat. § 1A-1 (Supp.1979). In general, hearsay is inadmissible and records must be authenticated. See, e. g. § 1A-1, Rules 1, 43, 44, 46.
46
In addition, the proceeding has an obvious accusatory and punitive focus. In moving to terminate a parent's rights, the State has concluded that it no longer will try to preserve the family unit, but instead will marshal an array of public resources to establish that the parent-child separation must be made permanent.10 The State has legal representation through the county attorney. This lawyer has access to public records concerning the family and to professional social workers who are empowered to investigate the family situation and to testify against the parent. The State's legal representative may also call upon experts in family relations, psychology, and medicine to bolster the State's case. And, of course, the State's counsel himself is an expert in the legal standards and techniques employed at the termination proceeding, including the methods of cross-examination.
47
In each of these respects, the procedure devised by the State vastly differs from the informal and rehabilitative probation revocation decision in Scarpelli, the brief, educative school disciplinary procedure in Goss, and the essentially medical decision in Parham. Indeed, the State here has prescribed virtually all the attributes of a formal trial as befits the severity of the loss at stake in the termination decision—every attribute, that is, except counsel for the defendant parent. The provision of counsel for the parent would not alter the character of the proceeding, which is already adversarial, formal, and quintessentially legal. It, however, would diminish the prospect of an erroneous termination, a prospect that is inherently substantial, given the gross disparity in power and resources between the State and the uncounseled indigent parent.11
48
The prospect of error is enhanced in light of the legal standard against which the defendant parent is judged. As demonstrated here, that standard commonly adds another dimension to the complexity of the termination proceeding. Rather than focusing on the facts of isolated acts or omissions, the State's charges typically address the nature and quality of complicated ongoing relationships among parent, child, other relatives, and even unrelated parties. In the case at bar, the State's petition accused petitioner of two of the several grounds authorizing termination of parental rights under North Carolina law:
49
"That [petitioner] has without cause, failed to establish or maintain concern or responsibility as to the child's welfare.
50
* * * * *
51
"That [petitioner] has willfully left the child in foster care for more than two consecutive years without showing that substantial progress has been made in correcting the conditions which led to the removal of the child [for neglect], or without showing a positive response to the diligent efforts of the Department of Social Services to strengthen her relationship to the child, orto make and follow through with constructive planning for the future of the child." (Emphasis supplied.) Juvenile Petition &Par; 6, 7, App. 3.12
52
The legal issues posed by the State's petition are neither simple nor easily defined. The standard is imprecise and open to the subjective values of the judge.13 A parent seeking to prevail against the State must be prepared to adduce evidence about his or her personal abilities and lack of fault, as well as proof of progress and foresight as a parent that the State would deem adequate and improved over the situation underlying a previous adverse judgment of child neglect. The parent cannot possibly succeed without being able to identify material issues, develop defenses, gather and present sufficient supporting nonhearsay evidence, and conduct cross-examination of adverse witnesses.
53
The Court, of course, acknowledges, ante, at 30, that these tasks "may combine to overwhelm an uncounseled parent." I submit that that is a profound understatement. Faced with a formal accusatory adjudication, with an adversary—the State—that commands great investigative and prosecutorial resources, with standards that involve ill-defined notions of fault and adequate parenting, and with the inevitable tendency of a court to apply subjective values or to defer to the State's "expertise," the defendant parent plainly is outstripped if he or she is without the assistance of " 'the guiding hand of counsel.' " In re Gault, 387 U.S., at 36, 87 S.Ct., at 1448, quoting Powell v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 64, 77 L.Ed. 158 (1932). When the parent is indigent, lacking in education, and easily intimidated by figures of authority,14 the imbalance may well become insuperable.
54
The risk of error thus is severalfold. The parent who actually has achieved the improvement or quality of parenting the State would require may be unable to establish this fact. The parent who has failed in these regards may be unable to demonstrate cause, absence of willfulness, or lack of agency diligence as justification. And errors of fact or law in the State's case may go unchallenged and uncorrected.15 Given the weight of the interests at stake, this risk of error assumes extraordinary proportions. By intimidation, inarticulateness, or confusion, a parent can lose forever all contact and involvement with his or her offspring.
C
55
The final factor to be considered, the interests claimed for the State, do not tip the scale against providing appointed counsel in this context. The State hardly is in a position to assert here that it seeks the informality of a rehabilitative or educative proceeding into which counsel for the parent would inject an unwelcome adversarial edge. As the Assistant Attorney General of North Carolina declared before this Court, once the State moves for termination, it "has made a decision that the child cannot go home and should not go home. It no longer has an obligation to try and restore that family." Tr. of Oral Arg. 40.
56
The State may, and does, properly assert a legitimate interest in promoting the physical and emotional well-being of its minor children. But this interest is not served by terminating the rights of any concerned, responsible parent. Indeed, because North Carolina is committed to "protect[ing] all children from the unnecessary severance of a relationship with biological or legal parents," § 7A-289.22(2), "the State spites its own articulated goals when it needlessly separates" the parent from the child. Stanley v. Illinois, 405 U.S., at 653,16 92 S.Ct., at 1213.
57
The State also has an interest in avoiding the cost and administrative inconvenience that might accompany a right to appointed counsel. But, as the Court acknowledges, the State's fiscal interest "is hardly significant enough to overcome private interests as important as those here." Ante, at 28. The State's financial concern indeed is a limited one, for the right to appointed counsel may well be restricted to those termination proceedings that are instituted by the State. Moreover, no difficult line-drawing problem would arise with respect to other types of civil proceedings. The instant due process analysis takes full account of the fundamental nature of the parental interest, the permanency of the threatened deprivation, the gross imbalance between the resources employed by the prosecuting State and those available to the indigent parent, and the relatively insubstantial cost of furnishing counsel. An absence of any one of these factors might yield a different result.17 But where, as here, the threatened loss of liberty is severe and absolute, the State's role is so clearly adversarial and punitive, and the cost involved is relatively slight, there is no sound basis for refusing to recognize the right to counsel as a requisite of due process in a proceeding initiated by the State to terminate parental rights.
II
A.
58
The Court's analysis is markedly similar to mine; it, too, analyzes the three factors listed in Mathews v. Eldridge, and it, too, finds the private interest weighty, the procedure devised by the State fraught with risks of error, and the countervailing governmental interest insubstantial. Yet, rather than follow this balancing process to its logical conclusion, the Court abruptly pulls back and announces that a defendant parent must await a case-by-case determination of his or her need for counsel. Because the three factors "will not always be so distributed," reasons the Court, the Constitution should not be read to "requir[e] the appointment of counsel in every parental termination proceeding." Ante, at 31 (emphasis added). This conclusion is not only illogical, but it also marks a sharp departure from the due process analysis consistently applied heretofore. The flexibility of due process, the Court has held, requires case-by-case consideration of different decisionmaking contexts, not of different litigants within a given context. In analyzing the nature of the private and governmental interests at stake, along with the risk of error, the Court in the past has not limited itself to the particular case at hand. Instead, after addressing the three factors as generic elements in the context raised by the particular case, the Court then has formulated a rule that has general application to similarly situated cases.
59
The Court's own precedents make this clear. In Goldberg v. Kelly, the Court found that the desperate economic conditions experienced by welfare recipients as a class distinguished them from other recipients of governmental benefits. 397 U.S., at 264, 90 S.Ct., at 1018. In Mathews v. Eldridge, the Court concluded that the needs of Social Security disability recipients were not of comparable urgency, and, moreover, that existing pretermination procedures, based largely on written medical assessments, were likely to be more objective and even-handed than typical welfare entitlement decisions. 424 U.S., at 339-345, 96 S.Ct., at 904-907. These cases established rules translating due process in the welfare context as requiring a pretermination hearing but dispensing with that requirement in the disability benefit context. A showing that a particular welfare recipient had access to additional income, or that a disability recipient's eligibility turned on testimony rather than written medical reports, would not result in an exception from the required procedural norms. The Court reasoned in Eldridge:
60
"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 truth-finding process as applied to the generality of cases, not the rare exceptions." Id., at 344, 96 S.Ct., at 907.
61
There are sound reasons for this. Procedural norms are devised to ensure that justice may be done in every case, and to protect litigants against unpredictable and unchecked adverse governmental action. Through experience with decisions in varied situations over time, lessons emerge that reflect a general understanding as to what is minimally necessary to assure fair play. Such lessons are best expressed to have general application which guarantees the predictability and uniformity that underlie our society's commitment to the rule of law. By endorsing, instead, a retrospective review of the trial record of each particular defendant parent, the Court today undermines the very rationale on which this concept of general fairness is based.18
62
Moreover, the case-by-case approach advanced by the Court itself entails serious dangers for the interests at stake and the general administration of justice. The Court assumes that a review of the record will establish whether a defendant, proceeding without counsel, has suffered an fair disadvantage. But in the ordinary case, this simply is not so. The pleadings and transcript of an uncounseled termination proceeding at most will show the obvious blunders and omissions of the defendant parent. Determining the difference legal representation would have made becomes possible only through imagination, investigation, and legal research focused on the particular case. Even if the reviewing court can embark on such an enterprise in each case, it might be hard pressed to discern the significance of failures to challenge the State's evidence or to develop a satisfactory defense. Such failures, however, often cut to the essence of the fairness of the trial, and a court's inability to compensate for them effectively eviscerates the presumption of innocence. Because a parent acting pro se is even more likely to be unaware of controlling legal standards and practices, and unskilled in garnering relevant facts, it is difficult, if not impossible, to conclude that the typical case has been adequately presented. Cf. Betts v. Brady, 316 U.S., at 476, 62 S.Ct., at 1263 (dissenting opinion).19
63
Assuming that this ad hoc review were adequate to ensure fairness, it is likely to be both cumbersome and costly. And because such review involves constitutional rights implicated by state adjudications, it necessarily will result in increased federal interference in state proceedings. The Court's implication to the contrary, see ante, at 33, is belied by the Court's experience in the aftermath of Betts v. Brady. The Court was confronted with innumerable post verdict challenges to the fairness of particular trials, and expended muchenergy in effect evaluating the performance of state judges.20 This level of intervention in the criminal processes of the States prompted Justice Frankfurter, speaking for himself and two others, to complain that the Court was performing as a "super-legal-aid bureau." Uveges v. Pennsylvania, 335 U.S. 437, 450, 69 S.Ct. 184, 190, 93 L.Ed. 127 (1948) (dissenting opinion). I fear that the decision today may transform the Court into a "super family court."
B
64
The problem of inadequate representation is painfully apparent in the present case. Petitioner, Abby Gail Lassiter, is the mother of five children. The State moved to remove the fifth child, William, from petitioner's care on the grounds of parental neglect. Although petitioner received notice of the removal proceedings, she did not appear at the hearing and was not represented. In May 1975, the State's District Court adjudicated William to be neglected under North Carolina law and placed him in the custody of the Durham County Department of Social Services. At some point, petitioner evidently arranged for the other four children to reside with and be cared for by her mother, Mrs. Lucille Lassiter. They remain under their grandmother's care at the present time.
65
As the Court notes, ante, at 22, petitioner did not visit William after July 1976. She was unable to do so, for she was imprisoned as a result of her conviction for second-degree murder. In December 1977, she was visited in prison by a Durham County social worker who advised her that the Department planned to terminate her parental rights with respect to William. Petitioner immediately expressed strong opposition to that plan and indicated a desire to place the child with his grandmother. Hearing Tr. 15. After receiving a summons, a copy of the State's termination petition, and notice that a termination hearing would be held in August 1978, petitioner informed her prison guards about the legal proceeding. They took no steps to assist her in obtaining legal representation, id., at 4; App. I to Reply to Brief in Opposition 4, nor was she informed that she had a right to counsel.21 Under these circumstances, it scarcely would be appropriate, or fair, to find that petitioner had knowingly and intelligently waived a right to counsel.
66
At the termination hearing, the State's sole witness was the county worker who had met petitioner on the one occasion at the prison. This worker had been assigned to William's case in August 1977, yet much of her testimony concerned events prior to that date; she represented these events as contained in the agency record. Hearing Tr. 10-13. Petitioner failed to uncover this weakness in the worker's testimony. That is hardly surprising, for there is no indication that an agency record was introduced into evidence or was present in court, or that petitioner or the grandmother ever had an opportunity to review any such record. The social worker also testified about her conversations with members of the community. In this hearsay testimony, the witness reported the opinion of others that the grandmother could not handle the additional responsibility of caring for the fifth child. Id., at 14-15. There is no indication that these community members were unavailable to testify, and the County Attorney did not justify the admission of the hearsay. Petitioner made no objection to its admission.
67
The court gave petitioner an opportunity to cross-examine the social worker, id., at 19, but she apparently did not understand that cross-examination required questioning rather than declarative statements. At this point, the judge became noticeably impatient with petitioner.22 Petitioner then took the stand, and testified that she wanted William to live with his grandmother and his siblings. The judge questioned her for a brief period, and expressed open disbelief at one of her answers.23 The final witness was the grandmother. Both the judge and the County Attorney questioned her. She denied having expressed unwillingness to take William into her home, and vehemently contradicted the social worker's statement that she had complained to the Department about her daughter's neglect of the child.24 Petitioner was not told that she could question her mother, and did not do so.25 The County Attorney made a closing argument, id., at 58-60, and the judge then asked petitioner if she had any final remarks. She responded: "Yes. I don't think it's right." Id., at 61.
68
It is perhaps understandable that the District Court Judge experienced difficulty and exasperation in conducting this hearing. But both the difficulty and the exasperation are attributable in large measure, if not entirely, to the lack of counsel. An experienced attorney might have translated petitioner's reaction and emotion into several substantive legal arguments. The State charged petitioner with failing to arrange a "constructive plan" for her child's future or to demonstrate a "positive response" to the Department's intervention. A defense would have been that petitioner had arranged for the child to be cared for properly by his grandmother, and evidence might have been adduced to demonstrate the adequacy of the grandmother's care of the other children. See, e. g., In re Valdez, 29 Utah 2d 63, 504 P.2d 1372 (1973); Welfare Commissioner v. Anonymous, 33 Conn.Supp. 100, 364 A.2d 250 (1976); Diernfeld v. People, 137 Colo. 238, 323 P.2d 628 (1958). See generally Moore v. East Cleveland, 431 U.S., at 504, 97 S.Ct., at 1938 (plurality opinion); id., at 508-510, 97 S.Ct., at 1940-1941 (opinion of BRENNAN, J.). The Department's own "diligence" in promoting the family's integrity was never put in issue during the hearing, yet it is surely significant in light of petitioner's incarceration and lack of access to her child. See, e. g., Weaver v. Roanoke Dept. of Human Resources, 220 Va. 921, 929, 265 S.E.2d 692, 697 (1980); In re Christopher H., 577 P.2d 1292, 1294 (Okla.1978); In re Kimberly I., 72 App.Div.2d 831, 833, 421 N.Y.S.2d 649, 651 (1979). Finally, the asserted willfulness of petitioner's lack of concern could obviously have been attacked since she was physically unable to regain custody or perhaps even to receive meaningful visits during 21 of the 24 months preceding the action. Cf. In re Dinsmore, 36 N.C.App. 720, 245 S.E.2d 386 (1978).
III
69
Petitioner plainly has not led the life of the exemplary citizen or model parent. It may well be that if she were accorded competent legal representation, the ultimate result in this particular case would be the same. But the issue before the Court is not petitioner's character; it is whether she was given a meaningful opportunity to be heard when the State moved to terminate absolutely her parental rights.26 in light of the unpursued avenues of defense, and of the experience petitioner underwent at the hearing, I find virtually incredible the Court's conclusion today that her termination proceeding was fundamentally fair. To reach that conclusion, the Court simply ignores the defendant's obvious inability to speak effectively for herself, a factor the Court has found to be highly significant in past cases. See Gagnon v. Scarpelli, 411 U.S., at 791, 93 S.Ct., at 1764; Uveges v. Pennsylvania, 335 U.S., at 441-442, 69 S.Ct., at 185-186; Bute v. Illinois, 333 U.S. 640, 677, 68 S.Ct. 763, 782, 92 L.Ed. 986 (1948). See also Vitek v. Jones, 445 U.S., at 496-497, 100 S.Ct., at 1265 (plurality opinion); id., at 498, 100 S.Ct., at 1266 (opinion of POWELL, J.). I am unable to ignore that factor; instead, I believe that the record, and the norms of fairness acknowledged by the majority, compel a holding according counsel to petitioner and persons similarly situated.
70
Finally, I deem it not a little ironic that the Court on this very day grants, on due process grounds, an indigent putative father's claim for state-paid blood grouping tests in the interest of according him a meaningful opportunity to disprove his paternity, Little v. Streater, 452 U.S. 1, 101 S.Ct. 2202, 68 L.Ed.2d 627, but in the present case rejects, on due process grounds, an indigent mother's claim for state-paid legal assistance when the State seeks to take her own child away from her in a termination proceeding. In Little v. Streater, the Court stresses and relies upon the need for "procedural fairness," the "compelling interest in the accuracy of [the] determination," the "not inconsiderable" risk of error, the indigent's "fac[ing] the State as an adversary," and "fundamental fairness," 452 U.S., at 13, 14, and 16, 101 S.Ct., at 2209 and 2210.
71
There is some measure of inconsistency and tension here, it seems to me. I can attribute the distinction the Court draws only to a presumed difference between what it views as the "civil" and the "quasi-criminal," Little v. Streater, 452 U.S., at 10, 101 S.Ct., at 2207. Given the factual context of the two cases decided today, the significance of that presumed difference eludes me.
72
Ours, supposedly, is "a maturing society," Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 596 (1958) (plurality opinion), and our notion of due process is, "perhaps, the least frozen concept of our law." Griffin v. Illinois, 351 U.S. 12, 20, 76 S.Ct. 585, 591, 100 L.Ed. 891 (1956) (opinion concurring in judgment). If the Court in Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971), was able to perceive as constitutionally necessary the access to judicial resources required to dissolve a marriage at the behest of private parties, surely it should perceive as similarly necessary the requested access to legal resources when the State itself seeks to dissolve the intimate and personal family bonds between parent and child. It will not open the "floodgates" that, I suspect, the Court fears. On the contrary, we cannot constitutionally afford the closure that the result in this sad case imposes upon us all.
73
I respectfully dissent.
74
Justice STEVENS, dissenting.
75
A woman's misconduct may cause the State to take formal steps to deprive her of her liberty. The State may incarcerate her for a fixed term and also may permanently deprive her of her freedom to associate with her child. The former is a pure deprivation of liberty; the latter is a deprivation of both liberty and property, because statutory rights of inheritance as well as the natural relationship may be destroyed. Although both deprivations are serious, often the deprivation of parental rights will be the more grievous of the two. The plain language of the Fourteenth Amendment commands that both deprivations must be accompanied by due process of law.*
76
Without so stating explicitly, the Court appears to treat this case as though it merely involved the deprivation of an interest in property that is less worthy of protection than a person's liberty. The analysis employed in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18, in which the Court balanced the costs and benefits of different procedural mechanisms for allocating a finite quantity of material resources among competing claimants, is an appropriate method of determining what process is due in property cases. Meeting the Court on its own terms, Justice BLACKMUN demonstrates that the Mathews v. Eldridge analysis requires the appointment of counsel in this type of case. I agree with his conclusion, but I would take one further step.
77
In my opinion the reasons supporting the conclusion that the Due Process Clause of the Fourteenth Amendment entitles the defendant in a criminal case to representation by counsel apply with equal force to a case of this kind. The issue is one of fundamental fairness, not of weighing the pecuniary costs against the societal benefits. Accordingly, even if the costs to the State were not relatively insignificant but rather were just as great as the costs of providing prosecutors, judges, and defense counsel to ensure the fairness of criminal proceedings, I would reach the same result in this category of cases. For the value of protecting our liberty from deprivation by the State without due process of law is priceless.
1
The North Carolina Court of Appeals, in reviewing the petitioner's conviction, indicated that the murder occurred during an altercation between Ms. Lassiter, her mother, and the deceased:
"Defendant's mother told [the deceased] to 'come on.' They began to struggle and deceased fell or was knocked to the floor. Defendant's mother was beating deceased with a broom. While deceased was still on the floor and being beaten with the broom, defendant entered the apartment. She went into the kitchen and got a butcher knife. She took the knife and began stabbing the deceased who was still prostrate. The body of deceased had seven stab wounds. . . ." State v. Lassiter, No. 7614SC1054 (June 1, 1977).
After her conviction was affirmed on appeal, Ms. Lassiter sought to attack it collaterally. Among her arguments was that the assistance of her trial counsel had been ineffective because he had failed to "seek to elicit or introduce before the jury the statement made by [Ms. Lassiter's mother,] 'And I did it, I hope she dies.' " Ms. Lassiter's mother had, like Ms. Lassiter, been indicted on a first-degree murder charge; however, the trial court granted the elder Ms. Lassiter's motion for a nonsuit. The North Carolina General Court of Justice, Superior Court Division, denied Ms. Lassiter's motion for collateral relief. File No. 76-CR-3102 (Mar. 20, 1979.)
2
The petition had also asked that the parental rights of the putative father, William Boykin, be terminated. Boykin was not married to Ms. Lassiter, he had never contributed to William's financial support, and indeed he denied that he was William's father. The court granted the petition to terminate his alleged parental status.
3
Some parents will have an additional interest to protect. Petitions to terminate parental rights are not uncommonly based on alleged criminal activity. Parents so accused may need legal counsel to guide them in understanding the problems such petitions may create.
4
The respondent also points out that parental termination hearings commonly occur only after a custody proceeding in which the child has judicially been found to be abused, neglected, or dependent, and that an indigent parent has a right to be represented by appointed counsel at the custody hearing. § 7A-587.
Ms. Lassiter's hearing occurred before some of these provisions were enacted. She did not, for instance, have the benefit of the "clear, cogent, and convincing" evidentiary standard, nor did she have counsel at the hearing in which William was taken from her custody.
5
Both the respondent and the Columbia Journal of Law and Social Problems, 4 Colum.J.L. & Soc.Prob. 230 (1968), have conducted surveys purporting to reveal whether the presence of counsel reduces the number of erroneous determinations in parental termination proceedings. Unfortunately, neither survey goes beyond presenting statistics which, standing alone, are unilluminating. The Journal note does, however, report that it questioned the New York Family Court judges who preside over parental termination hearings and found that 72.2% of them agreed that when a parent is unrepresented, it becomes more difficult to conduct a fair hearing (11.1% of the judges disagreed); 66.7% thought it became difficult to develop the facts (22.2% disagreed).
6
A number of courts have held that indigent parents have a right to appointed counsel in child dependency or neglect hearings as well. E. g., Davis v. Page, 640 F.2d 599 (CA5 1981) (en banc); Cleaver v. Wilcox, 499 F.2d 940 (CA9 1974) (right to be decided case by case); Smith v. Edmiston, 431 F.Supp. 941 (WD Tenn.1977).
7
According to the respondent's brief, William Lassiter is now living "in a pre-adoptive home with foster parents committed to formal adoption to become his legal parents." He cannot be legally adopted, nor can his status otherwise be finally clarified, until this litigation ends.
8
Ms. Lassiter's argument here that her mother should have been given custody of William is hardly consistent with her argument in the collateral attack on her murder conviction that she was innocent because her mother was guilty. See n.1, supra.
1
In Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979), the Court's analysis of Sixth Amendment jurisprudence led to the conclusion that the right to counsel is not constitutionally mandated when imprisonment is not actually imposed.
2
See also Little v. Streater, 452 U.S., at 5-6, 13-16, 101 S.Ct., at 2205, 2209-2210; Smith v. Organization of Foster Families, 431 U.S. 816, 848-849, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977); Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972); Goldberg v. Kelly, 397 U.S. 254, 262-263, 90 S.Ct. 1011, 1017-1018, 25 L.Ed.2d 287 (1970); Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961).
3
Under North Carolina law, when a child is adjudged to be abused, neglected, or dependent, the dispositional alternatives are not couched in terms of permanence. See N.C.Gen.Stat. §§ 7A-647, 7A-651 (Supp.1979). In contrast, the State's termination statute specifically provides that an order terminating parental rights "completely and permanently terminates all rights and obligations" between parent and child, except that the child's right of inheritance continues until such time as the child may be adopted. § 7A-289.33. Such absolute and total termination is not unusual. See e. g., Ariz.Rev.Stat.Ann. § 8-539 (1974); Cal.Civ.Code Ann. § 232.6 (West Supp.1981); Ind.Code § 31-6-5-6(a) (Supp.1980); Ky.Rev.Stat. § 199.613(2) (Supp.1980); Mo.Rev.Stat. § 211.482 (Supp.1980).
4
E. g., Davis v. Page, 640 F.2d 599, 604 (CA5 1981) (en banc); Brown v. Guy, 476 F.Supp. 771, 773 (Nev.1979); State ex rel. Lemaster v. Oakley, 157 W.Va. 590, 598, 203 S.E.2d 140, 144 (1974); Danforth v. State Dept. of Health & Welfare, 303 A.2d 794, 799-800 (Me.1973); In re Howard, 382 So.2d 194, 199 (La.App.1980).
5
See H.R.Rep.No. 95-1386, p. 22 (1978) ("removal of a child from the parents is a penalty as great, if not greater, than a criminal penalty. . . ."). This Report accompanied the Indian Child Welfare Act of 1978, Pub.L. 95-608, 92 Stat. 3069. Congress there provided for court-appointed counsel to indigent Indian parents facing a termination proceeding. § 102(b), 92 Stat. 3071, 25 U.S.C. § 1911(b) (1976 ed., Supp.III).
6
See, e. g., Levine, Caveat Parens: A Demystification of the Child Protection System, 35 U.Pitt.L.Rev. 1, 52 (1973); Note, Child Neglect: Due Process for the Parent, 70 Colum.L.Rev. 465, 478 (1970); Representation in Child-Neglect Cases: Are Parents Neglected?, 4 Colum.J.L. & Soc.Prob. 230, 250 (1968) (Parent Representation Study).
7
Justice Powell agreed with the plurality that independent representation must be provided to an inmate facing involuntary transfer to a state mental hospital, but concluded that this representative need not be an attorney because the transfer hearing was informal and the central issue was a medical one. 445 U.S., at 498-500, 100 S.Ct., at 1266-1267.
8
By emphasizing the value of physical liberty to the exclusion of all other fundamental interests, the Court today grants an unnecessary and burdensome new layer of analysis onto its traditional three-factor balancing test. Apart from improperly conflating two distinct lines of prior cases, see supra, at 35-38, the Court's reliance on a "rebuttable presumption" sets a dangerous precedent that may undermine objective judicial review regarding other procedural protections. Even in the area of juvenile court delinquency proceedings, where the threat of incarceration arguably supports an automatic analogy to the criminal process, the Court has eschewed a bright-line approach. Instead, it has evaluated each requested procedural protection in light of its consequences for fair play and truth determination. See generally McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).
9
A petition for termination may also be filed by a private party, such as a judicially appointed guardian, a foster parent, or the other natural parent. N.C.Gen.Stat. § 7A-289.24 (Supp.1979). Because the State in those circumstances may not be performing the same adversarial and accusatory role, an application of the three Eldridge factors might yield a different result with respect to the right to counsel.
10
Significantly, the parent's rights and interests are not mentioned at all under the statement of purpose for the North Carolina termination statute. See N.C.Gen.Stat. § 7A-289.22 (Supp.1979). In contrast, in abuse, neglect, and dependency proceedings the State has a statutory obligation to keep a family together whenever possible. § 7A-542. Thus, the State has chosen to provide counsel for parents, § 7A-587, in circumstances where it shares at least in part their interest in family integrity but not where it regards the parent as an opponent. The Assistant Attorney General of North Carolina explained the decision to furnish appointed counsel at the abuse and neglect stage by pointing to the State's need to avoid an awkward situation, given its possibly conflicting responsibilities to parent and child. Tr. of Oral Arg. 39-40. While this may be sound as a matter of public policy, it cannot excuse the failure to provide counsel at the termination stage, where the State and the indigent parent are adversaries, and the inequality of power and resources is starkly evident.
The possibility of providing counsel for the child at the termination proceeding has not been raised by the parties. That prospect requires consideration of interests different from those presented here, and again might yield a different result with respect to the right to counsel. See generally Parham v. J.R., 442 U.S. 584, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979); Smith v. Organization of Foster Families, 431 U.S. 816, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977).
11
Cf. Parham v. J.R., 442 U.S., at 606-607, 99 S.Ct., at 2506-2507; Goldberg v. Kelly, 397 U.S., at 266, 90 S.Ct., at 1019.
12
See N.C.Gen.Stat. §§ 7A-289.32(1), 7A-289.32(3) (Supp.1977). Subdivision § 7A-289.32(1) was repealed by 1979 N.C.Sess.Laws, ch. 669, § 2.
13
Under North Carolina law, there is a further stage to the termination inquiry. Should the trial court determine that one or more of the conditions authorizing termination has been established, it then must consider whether the best interests of the child require maintenance of the parent-child relationship. N.C.Gen.Stat. § 7A-289.31(a) (Supp.1979).
This Court more than once has adverted to the fact that the "best interests of the child" standard offers little guidance to judges, and may effectively encourage them to rely on their own personal values. See, e. g., Smith v. Organization of Foster Families, 431 U.S., at 835, n. 36, 97 S. Ct., at 2105, n. 36; Bellotti v. Baird, 443 U.S. 622, 655, 99 S.Ct. 3035, 3054, 61 L.Ed.2d 797 (1979) (STEVENS, J., concurring in judgment). See also Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 554, 54 L.Ed.2d 511 (1978). Several courts, perceiving similar risks, have gone so far as to invalidate parental termination statutes on vagueness grounds. See e. g., Alsager v. District Court of Polk Cty., 406 F.Supp. 10, 18-19 (SD Iowa 1975), aff'd on other grounds, 545 F.2d 1137 (CA8 1976); Davis v. Smith, 266 Ark. 112, 121-123, 583 S.W.2d 37, 42-43 (1979).
14
See Schetky, Angell, Morrison, & Sack, Parents Who Fail: A Study of 51 Cases of Termination of Parental Rights, 18 J.Am.Acad. Child Psych. 366, 375 (1979) (citing minimal educational backgrounds). See also Davis v. Page, 442 F.Supp. 258, 260 (SD Fla.1977) (uncounseled parent, ignorant of governing substantive law, "was little more than a spectator in the adjudicatory [dependency] proceeding," and "sat silently through most of the hearing . . . fearful of antagonizing the social workers"), aff'd in part, 640 F.2d 599 (CA5 1981) (en banc).
15
See Parent Representation Study, at 241 (parents appearing in Kings County, N.Y., Family Court, charged with neglect and represented by counsel, had higher rate of dismissed petitions, 25% to 7.9%, and lower rate of neglect adjudications, 62.5% to 79.5%, than similarly charged parents appearing without counsel); Brief for Respondent 38-39, 25a-31a (study of state-initiated termination actions in 73 North Carolina counties; parent prevailed in 5.5% of proceedings where represented by counsel, and in 0.15% of proceedings where unrepresented).
While these statistics hardly are dispositive, I do not share the Court's view, ante, at 29-30, n. 5, that they are "unilluminating." Since no evidence in either study indicates that the defendant parent who can retain or is offered counsel is less culpable than the one who appears unrepresented, it seems reasonable to infer that a sizable number of cases against unrepresented parents end in termination solely because of the absence of counsel. In addition, as the Court acknowledges, ante, at 30, n. 5, the judges who preside over termination hearings perceive them as less fair when the parent is without counsel.
16
The Court apparently shares this view. See ante, at 27-28.
17
Thus, for example, the State's involvement in adjudicating the competing claims for child custody between parents in a divorce proceeding need not obligate it to provide counsel for indigent parents.
18
The Court's decision in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), is not to the contrary. In Scarpelli, the Court determined that due process requires an individualized approach to requests for counsel by probationers facing revocation. The rule established there was based on respect for the rehabilitative focus of the probation system, the informality of probation proceedings, and the diminished liberty interest of an already-convicted probationer. Id., at 785-789, 93 S.Ct., at 1761-1763. None of these elements is present here. See also Wolff v. McDonnell, 418 U.S. 539, 569-570, 94 S.Ct. 2963, 2981, 41 L.Ed.2d 935 (1974).
19
Of course, the case-by-case approach announced by the Court today places an even heavier burden on the trial court, which will be required to determine in advance what difference legal representation might make. A trial judge will be obligated to examine the State's documentary and testimonial evidence well before the hearing so as to reach an informed decision about the need for counsel in time to allow adequate preparation of the parent's case.
20
See, e. g., Quicksall v. Michigan, 339 U.S. 660, 70 S.Ct. 910, 94 L.Ed. 1188 (1950); Uveges v. Pennsylvania, 335 U.S. 437, 69 S.Ct. 184, 93 L.Ed. 127 (1948); Bute v. Illinois, 333 U.S. 640, 68 S.Ct. 763, 92 L.Ed. 986 (1948); Marino v. Ragen, 332 U.S. 561, 68 S.Ct. 240, 92 L.Ed. 170 (1947); Hawk v. Olson, 326 U.S. 271, 66 S.Ct. 116, 90 L.Ed. 61 (1945); Tomkins v. Missouri, 323 U.S. 485, 65 S.Ct. 370, 89 L.Ed. 407 (1945). See generally W. Beaney, The Right to Counsel in American Courts 160-198 (1955).
21
During her imprisonment, petitioner had spoken with an attorney concerning her criminal conviction. She did not discuss the termination proceeding with this lawyer, and he has stated under oath that in view of her indigency he would not have been interested in representing her at that proceeding even had she asked him to do so. App. 10-11, 16.
22
Hearing Tr. 19-20:
"THE COURT: All right. Do you want to ask her any questions?
"[PETITIONER]: About what? About what she—
"THE COURT: About this child.
"[PETITIONER]: Oh, yes.
"THE COURT: All right. Go ahead.
"[PETITIONER]: The only thing I know is that when you say—
"THE COURT: I don't want you to testify.
"[PETITIONER]: Okay.
"THE COURT: I want to know whether you want to cross-examine her or ask any questions.
"[PETITIONER]: Yes, I want to. Well, you know, the only thing I know about is my part that I know about it. I know—
"THE COURT: I am not talking about what you know. I want to know if you want to ask her any questions or not.
"[PETITIONER]: About that?
"THE COURT: Yes. Do you understand the nature of this proceeding?
"[PETITIONER]: Yes.
"THE COURT: And that is to terminate any rights you have to the child and place it for adoption, if necessary.
"[PETITIONER]: Yes, I know.
"THE COURT: Are there any questions you want to ask her about what she has testified to?
"[PETITIONER]: Yes.
"THE COURT: All right. Go ahead.
"[PETITIONER]: I want to know why you think you are going to turn my child over to a foster home? He knows my mother and he knows all of us. He knows her and he knows all of us.
"THE COURT: Who is he?
"[PETITIONER]: My son, William.
"[SOCIAL WORKER]: Ms. Lassiter, your son has been in foster care since May of 1975 and since that time—
"[PETITIONER]: Yeah, yeah and I didn't know anything about it either."
23
Id., at 30:
"[THE COURT]: Did you know that your mother filed a complaint on the 8th day of May, 1975. . . .?
"A: No, 'cause she said she didn't file no complaint.
"[THE COURT]: That was some ghost who came up here and filed it I suppose."
The judge concluded his questioning by saying to the County Attorney: "All right, Mr. Odom, see what you can do." Id., at 36.
24
This latter denial produced the following reaction from the court, id., at 55:
"Q [from respondent]: Did you tell Ms. Mangum on the 8th day of May, 1975, that when your daughter was in the hospital having William that she left the children in the cold house with no heat?
"A: No, sir, no, sir, unh unh, no, sir.
"[PETITIONER]: That's a lie.
"A: No, sir, no, sir. God knows, I'll raise my right hand to God and die saying that. Somebody else told that.
"[THE COURT]: I wish you wouldn't talk like that it scares me to be in the same room with you."
25
The judge had initiated the examination of Mrs. Lassiter; subsequently he expressed exasperation with the rambling quality of her answers, id., at 52:
"THE COURT: I tell you what, let's just stop all this. You question her, please. Just answer his questions. We'll be here all day at this rate. I mean, we are just wasting time, we're skipping from one subject to another—
"CROSS EXAMINATION BY [RESPONDENT]: . . . ."
26
Unfortunately, the Court does not confine itself to the issue at hand. By going outside the official record of this case, ante, at 20-21, n. 1, to unearth and recite details of petitioner's second-degree murder conviction set forth in an unpublished state appellate opinion, see State v. Lassiter, 33 N.C.App. 405, 235 S.E.2d 289 (1977); Rule 30(e)(3), N.C. Rules of Appellate Procedure, N.C.Gen.Stat. (Supp.1979 to Vol. 4A), the Court apparently believes it has contributed evidence relevant to petitioner's fitness as a parent, and perhaps to the fitness of petitioner's mother as well. But while some States retain statutes permitting parental rights to be terminated upon a parent's criminal conviction, North Carolina is not among them. See N.C.Gen.Stat. § 7A-289.32 (Supp.1979). See Note, On Prisoners and Parenting: Preserving the Tie that Binds, 87 Yale L.J. 1408, 1409-1410 (1978). Reliance on such evidence is likely to encourage the kind of subjective value judgments that an adversarial judicial proceeding is meant to avoid.
*
The Fourteenth Amendment provides in part:
"No State shall . . . deprive any person of life, liberty, or property, without due process of law . . . ."
| 01
|
452 U.S. 247
101 S.Ct. 2288
68 L.Ed.2d 814
ROWAN COMPANIES, INC., Petitioner,v.UNITED STATES.
No. 80-780.
Argued April 21, 1981.
Decided June 8, 1981.
Syllabus
Petitioner, for its own convenience, provided meals and lodging to its employees working on offshore oil rigs. Petitioner did not include the value of the meals and lodging in computing the employees' "wages" for the purpose of paying taxes under the Federal Insurance Contributions Act (FICA) and the Federal Unemployment Tax Act (FUTA) or withholding the employees' federal income taxes. Upon audit, the Internal Revenue Service included the value of the meals and lodging in the employees' "wages" for FICA and FUTA but not for income-tax withholding. In doing so, the IRS acted consistently with Treasury Regulations that interpret the definition of "wages" in FICA and FUTA to include the value of such meals and lodging, whereas the substantially identical definition of "wages" in the income-tax withholding provisions is interpreted by Treasury Regulations to exclude this value. Petitioner paid the additional assessment for FICA and FUTA taxes and brought suit in Federal District Court for a refund. The District Court granted summary judgment for the Government, and the Court of Appeals affirmed, holding that the different interpretations of the definition of "wages" was justified by the different purposes of FICA and FUTA, on the one hand, and income-tax withholding, on the other.
Held: The Treasury Regulations interpreting the definition of "wages" in FICA and FUTA to include the value of the meals and lodging are invalid, for they fail to implement the statutory definition in a consistent or reasonable manner. The plain language and legislative histories of the relevant statutes indicate that Congress intended its definition of "wages" to be interpreted in the same manner for FICA and FUTA as for income-tax withholding. Pp. 250-263.
624 F.2d 701, reversed.
K. Martin Worthy, Washington, D. C., for petitioner.
Stuart A. Smith, Washington, D. C., for respondent.
Justice POWELL delivered the opinion of the Court.
1
This case concerns the federal taxes imposed upon employers by the Federal Insurance Contributions Act (FICA), 26 U.S.C. § 3101 et seq., and the Federal Unemployment Tax Act (FUTA), 26 U.S.C. § 3301 et seq. The question is whether petitioner should have included in the computation of "wages," which is the base for taxation under FICA and FUTA, the value of meals and lodging provided for its own convenience to employees working on offshore oil rigs.
2
* During the tax years in question, 1967-1969, petitioner Rowan Companies, Inc., owned and operated rigs for drilling oil and gas wells, both on land and offshore. Some of petitioner's offshore rigs were located as many as 60 miles from land. It cost petitioner less and was more convenient to provide meals and lodging to employees at these rigs than to transport the employees to and from the rigs for each work shift.1 Employees worked at these rigs for 10-day tours of duty, and petitioner then transported them back to land for 5-day periods of leave. All employees at a rig received the same meals and lodging facilities, regardless of employment status or pay. Employees did not receive any cash allowance if they chose not to eat a meal. Petitioner did not provide meals or lodging to employees during their leave; nor did it provide meals or lodging to employees working on landbased rigs.
3
Petitioner did not include the value of the meals and lodging in computing its employees' "wages" for the purpose of paying taxes under FICA or FUTA.2 Nor did petitioner include this value in computing "wages" for the purpose of withholding its employees' federal income tax under 26 U.S.C. § 3402(a).3 Its uniform practice appeared to be consistent with the statutory language, as Congress defined "wages" in substantially identical language for each of these three obligations upon employers.4 Upon audit, however, the Internal Revenue Service included the fair value of the meals and lodging in the employees' "wages" for the purpose of FICA and FUTA, but not for the purpose of income-tax withholding under § 3402(a). The Service acted consistently with the present Treasury Regulations that interpret the definition of "wages" in FICA and FUTA to include the value of these meals and lodging,5 whereas the substantially identical definition of "wages" in § 3401(a) is interpreted by Treasury Regulations to exclude this value. Compare Treas.Reg. §§ 31.3121(a)-1(e), (f) (FICA), 26 CFR §§ 31.3121(a)-1(e), (f) (1980); Treas.Reg. §§ 31.3306(b)-1(e), (f) (FUTA), 26 CFR §§ 31.3306(b)-1(e), (f) (1980); with Treas.Reg. §§ 31.3401(a)-1(b)(9), (10) (income-tax withholding), 26 CFR §§ 31.3401(a)-1(b)(9), (10) (1980). Petitioner paid the additional assessment and brought this suit for a refund under 28 U.S.C. § 1346(a)(1).6
4
The District Court for the Southern District of Texas granted the Government's motion for summary judgment. The Court of Appeals for the Fifth Circuit affirmed, expressing the view that the different interpretations of the definition of "wages" are justified by the different purposes of FICA and FUTA, on the one hand, and income-tax withholding, on the other. 624 F.2d 701, 707 (1980). We granted a writ of certiorari, 449 U.S. 1109, 101 S.Ct. 917, 66 L.Ed.2d 838 (1981), because the Court of Appeals' decision conflicts with the decisions of other Courts of Appeals.7 We now reverse.
II
5
The Government acknowledges that petitioner properly excluded the value of the meals and lodging in computing the "wages" from which it withheld employees' income tax under § 3402(a). Under the Treasury Regulation interpreting the definition of "wages" for income-tax withholding, the employer excludes the value of meals or lodging from "wages" if the employee excludes the value from his gross income. Treas.Reg. § 31.3401(a)-1(b)(9), 26 CFR § 31.3401(a)-1(b)(9) (1980). Under the convenience-of-the-employer rule, an employee may exclude from gross income the value of meals and lodging furnished to him by his employer if the employer furnished both the meals and lodging for its own convenience, furnished the meals on its business premises, and required the employee to accept the lodging on the business premises as a condition of employment. 26 U.S.C. § 119 (1976 ed., Supp.III).8 Petitioner's provision of meals and lodging to employees on its offshore rigs satisfied each of these § 119 requirements. The value of the meals and lodging therefore was excludable by the employer from "wages" under Treas.Reg. § 31.3401(a)-1(b)(9), 26 CFR § 31.3401(a)-1(b)(9) (1980). See generally Commissioner v. Kowalski, 434 U.S. 77, 98 S.Ct. 315, 54 L.Ed.2d 252 (1977).
6
Notwithstanding this acknowledgment, the Government contends that petitioner should have included the value of the meals and lodging in "wages" for purposes of FICA and FUTA. It relies on Treas.Reg. §§ 31.3121(a)-1(f) (FICA) and 31.3306(b)-1(f) (FUTA), 26 CFR §§ 31.3121(a)-1(f) and 31.3306(b)-1(f) (1980), that provide:
7
"Ordinarily, facilities or privileges (such as entertainment, medical services, or so-called 'courtesy' discounts on purchases), furnished or offered by an employer to his employees generally, are not considered as remuneration for employment if such facilities or privileges are of relatively small value and are offered or furnished by the employer merely as a means of promoting the health, good will, contentment, or efficiency of his employees. The term 'facilities or privileges,' however, does not ordinarily include the value of meals or lodging furnished, for example, to restaurant or hotel employees, or to seamen or other employees aboard vessels, since generally these items constitute an appreciable part of the total remuneration of such employees."
8
If valid, these regulations dictate that the value of the meals and lodging provided by petitioner to its employees on offshore rigs was includable in "wages" as defined in FICA and FUTA, even though excludable from "wages" under the substantially identical definition in § 3401(a) for income-tax withholding.9
9
We consider Treasury Regulations valid if they "implement the congressional mandate in some reasonable manner." United States v. Correll, 389 U.S. 299, 307, 88 S.Ct. 445, 449, 18 L.Ed.2d 1346 (1967); accord, Commissioner v. Portland Cement Co. of Utah, 450 U.S. 156, 169, 101 S.Ct. 1037, 1045, 67 L.Ed.2d 140 (1981). In National Muffler Dealers Assn. v. United States, 440 U.S. 472, 477, 99 S.Ct. 1304, 1307, 59 L.Ed.2d 519 (1979), we stated: "In determining whether a particular regulation carries out the congressional mandate in a proper manner, we look to see whether the regulation harmonizes with the plain language of the statute, its origin, and its purpose." Harmony between statutory language and regulation is particularly significant in this case. Congress itself defined the word at issue—"wages"—and the Commissioner interpreted Congress' definition only under his general authority to "prescribe all needful rules." 26 U.S.C. § 7805(a). Because we therefore can measure the Commissioner's interpretation against a specific provision in the Code, we owe the interpretation less deference than a regulation issued under a specific grant of authority to define a statutory term or prescribe a method of executing a statutory provision. Compare Commissioner v. Portland Cement Co. of Utah, supra, at 165, 101 S.Ct., at 1043; Fulman v. United States, 434 U.S. 528, 533, 98 S.Ct. 841, 845, 55 L.Ed.2d 1 (1978); Batterton v. Francis, 432 U.S. 416, 424-425, 97 S.Ct. 2399, 2404-05, 53 L.Ed.2d 448, and nn. 8-9 (1977). Where the Commissioner acts under specific authority, our primary inquiry is whether the interpretation or method is within the delegation of authority.
10
Among other considerations relevant to the validity of Treasury Regulations, we inquire whether the regulation "is a substantially contemporaneous construction of the statute by those presumed to have been aware of congressional intent," National Muffler Dealers Assn. v. United States, 440 U.S., at 477, 99 S.Ct., at 1307; and "[i]f the regulation dates from a later period, the manner in which it evolved merits inquiry." Ibid. We also consider, if pertinent, "the consistency of the Commissioner's interpretation, and the degree of scrutiny Congress has devoted to the regulation during subsequent re-enactments of the statute." Ibid. In this case, we hold that Treas.Regs. §§ 31.3121(a)-1(f) and 31.3306(b)-1(f) are invalid, for they fail to implement the congressional mandate in a consistent and reasonable manner.
11
* Congress chose "wages" as the base for measuring employers' obligations under FICA, FUTA, and income-tax withholding. In Central Illinois Public Service Co. v. United States, 435 U.S. 21, 98 S.Ct. 917, 55 L.Ed.2d 82 (1978), we considered Congress' use of the concepts of "income" and "wages" for the purpose of income-tax withholding. The question was whether an employer should have included in "wages" for income-tax withholding the reimbursements it had given employees for lunch expenses on company travel that had not required overnight stays. We held that the employer was not required to include the reimbursements in "wages," even though the reimbursements constituted "income" to the employees.10 This holding relied on the recognition that "[t]he two concepts—income and wages—obviously are not necessarily the same. Wages usually are income, but many items qualify as income and yet clearly are not wages." Id., at 25, 98 S.Ct., at 919 (footnote omitted). In short, "wages" is a narrower concept than "income," see ibid., and the fact that the reimbursements were "income" to the employees did not necessarily mean that the employer had to include them in "wages" for income-tax withholding.
12
Petitioner contends that its position in this case follows from our reasoning in Central Illinois. Because "wages" is a narrower concept than "income" for the purposes of income-tax withholding, it is argued that the value of the meals and lodging in this case—which the Government acknowledges is not "income" therefore cannot be "wages" under FICA and FUTA. Petitioner's argument rests on the assumption that Congress intended the term "wages" to have the same meaning for purposes of FICA, FUTA, and income-tax withholding. We now consider whether petitioner's assumption is correct.
B
13
Congress enacted the predecessor provisions of FICA and FUTA as Titles VIII and IX of the Social Security Act of 1935, ch. 531, 49 Stat. 636, 639. It chose "wages" as the base for taxation of employers, § 804, 49 Stat. 637; § 901, 49 Stat. 639, and it defined "wages." § 811(a), 49 Stat. 639; § 907(b), 49 Stat. 642. Congress originated the present income-tax withholding system in § 172 of the Revenue Act of 1942, 56 Stat. 884. See Central Illinois Public Service Co. v. United States, supra, at 26-27, 98 S.Ct., at 920-921. It again chose "wages" as the base, 56 Stat. 888, and defined "wages" in substantially the same language that it used in FICA and FUTA, id., at 887. When Congress revised the withholding system by replacing § 172 with the Current Tax Payment Act of 1943, 57 Stat. 126, it retained the definition of "wages." Ibid. In view of this sequence of consistency, the plain language of the statutes is strong evidence that Congress intended "wages" to mean the same thing under FICA, FUTA, and income-tax withholding.
14
The legislative histories of the Acts establishing income-tax withholding support the conclusion to be drawn from the plain language. These histories reveal a congressional concern for "the interest of simplicity and ease of administration." S.Rep. No. 1631, 77th Cong., 2d Sess., 165 (1942) (Revenue Act of 1942). See Central Illinois Public Service Co. v. United States, supra, at 31, 98 S.Ct., at 922. They also reveal that one of the means Congress chose in order to promote simplicity was to base withholding upon the same measure—"wages"—as taxation under FICA and FUTA. Thus, whereas the withholding system proposed by the House provided for withholding upon dividends and bond interest in addition to wages, H.R.Rep. No. 2333, 77th Cong., 2d Sess., 125 (1942), the system proposed by the Senate and enacted in § 172 limited withholding to wages. S.Rep. No. 1631, supra, at 165. "This was a standard that was intentionally narrow and precise." Central Illinois Public Service Co. v. United States, supra, at 31, 98 S.Ct., at 922. Section 172 also specified that remuneration for certain services was excepted from "wages." According to the Senate Report, "[t]hese exceptions [for income-tax withholding] are identical with the exceptions extended to such services for Social Security tax purposes and are intended to receive the same construction and have the same scope." S.Rep. No. 1631, supra, at 166.
15
When Congress replaced § 172, the House devoted much attention to the specified exceptions from "wages," H.R.Rep. No. 268, 78th Cong., 1st Sess., pt. 1, p. 14 (1943); H.R.Rep. No. 401, 78th Cong., 1st Sess., pt. 1, pp. 22-23 (1943), but it left the essential definition of "wages" unchanged. H.R.Rep. No. 268, supra, at 14. The Senate modified the bill proposed by the House, and reported: "[T]he methods of collection, payment, and administration of the withholding tax have been coordinated generally with those applicable to the Social Security tax imposed on employees under section 1400 of the code. This proposal has been made in order to facilitate the work of both the Government and the employer in administering the withholding system." S.Rep. No. 221, 78th Cong., 1st Sess., 17 (1943); see also H.R.Conf.Rep. No. 510, 78th Cong., 1st Sess., 28 (1943).11
16
In sum, Congress intended in both the Revenue Act of 1942 and the Current Tax Payment Act of 1943 to coordinate the income-tax withholding system with FICA and FUTA. In both instances, Congress did so to promote simplicity and ease of administration. Contradictory interpretations of substantially identical definitions do not serve that interest. It would be extraordinary for a Congress pursuing this interest to intend, without ever saying so, for identical definitions to be interpreted differently.
17
Despite the plain language of Congress' definition of "wages" and this legislative history, the Government contends that FICA and FUTA compose a distinct system of taxation to which the rules of income taxation, such as the exclusion of the value of meals and lodging from "income" under the convenience-of-the-employer rule in § 119, do not apply. In support, the Government recites congressional Committee Reports indicating that Congress enacted the Social Security Act to "relieve the existing distress and . . . to reduce destitution and dependency in the future," H.R.Rep. No. 615, 74th Cong., 1st Sess., 3 (1935). See also S.Rep. No. 628, 74th Cong., 1st Sess., 2 (1935). These Reports also state that "[w]ages include not only the cash payments made to the employee for work done, but also compensation for services in any other form, such as room, board, etc." H.R.Rep. No. 615, supra, at 32 (Title VIII (FICA)); accord, id., at 36 (Title IX (FUTA)); S.Rep. No. 628, supra, at 44 (FICA), 49 (FUTA). The Government concludes that Congress intended to impose the taxes under FICA and FUTA upon a broad range of remuneration in order to accomplish the Act's purposes.
18
We are not persuaded by this contention. The reference by Congress to "room, board, etc." as examples of "wages" under Titles VIII and IX is ambiguous. It does not necessarily mean that Congress intended to tax remuneration in kind without regard to principles developed under income taxation, such as the convenience-of-the-employer rule.12 This rule first appeared in 1919, O.D. 265, 1 Cum.Bull. 71, and was well established by 1935. See Commissioner v. Kowalski, 434 U.S., at 84-87, 98 S.Ct., at 319-321. There is no evidence in the Committee Reports cited by the Government that Congress intended to exclude this established rule from determinations under Titles VIII and IX or to create a different rule to govern "room, board, etc." We therefore think that the reference in the Committee Reports to "room, board, etc." lends no support to the validity of the Treasury Regulations on which the Government relies.13
19
The Government further contends, however, that a line of Treasury Regulations and rulings unbroken since 1940 refutes petitioner's view that Congress intended a consistent interpretation of the term "wages." It also contends that we may infer congressional endorsement of these Treasury Regulations and rulings from Congress' re-enactment of FICA, FUTA, and the income-tax withholding provisions in the Internal Revenue Code of 1954. We now address these contentions.
C
20
The history of the Treasury Regulations and rulings interpreting Congress' definition of "wages" in FICA and FUTA is far from consistent. The Commissioner's contemporaneous construction of Titles VIII (FICA) and IX (FUTA) of the Social Security Act of 1935 was that the convenience-of-the-employer rule applied to the computation of "wages." Treas.Regs. 90, Art. 207 (1936) (Title IX); Treas.Regs. 91, Art. 14 (1936) (Title VIII).14 Pursuant to Treas.Regs. 90, Art. 207, the Service ruled in 1937 that "supper money" paid to employees working overtime for the convenience of the employer was excludable from "wages" under both Titles. S.S.T. 110, 1937-1 Cum.Bull. 441. Again in 1938, the Service ruled in S.S.T. 302, 1938-1 Cum.Bull. 457, that free lunches provided by an employer for its own convenience were excludable from "wages" under Title IX. See also S.S.T. 383, 1940-1 Cum.Bull. 210-211.
21
The position taken in the Treasury Regulations and rulings subsequently changed, but without explanation. In 1939, Congress passed the Social Security Act Amendments of 1939, ch. 666, 53 Stat. 1360, that amended some of the specified exclusions from "wages" under FICA and FUTA but left unchanged the definition of "wages." Compare §§ 603, 614, 53 Stat. 1382, 1392, with §§ 1426(a), 1607(b), Internal Revenue Code of 1939, 26 U.S.C. §§ 1426(a), 1607(b) (1952 ed.). In 1940, however, the Commissioner issued Treas.Regs. 106, § 402.227 (FICA), and Treas.Regs. 107, § 403.227 (FUTA). These Regulations, which were virtually identical to the present Treasury Regulations at issue in this case, excluded the convenience-of-the-employer rule from the computation of "wages" under FICA and FUTA. No reasons were stated for this change. Pursuant to the new Regulations, the Service ruled in 1940 that the value of meals and lodging furnished to the crew operating a steamship was includable in "wages" under FICA and FUTA. S.S.T. 386, 1940-1 Cum.Bull. 211-212. In 1944, the Commissioner stated in Mim. 5657, 1944 Cum.Bull. 551, that the value of meals and lodging furnished by an employer was includable in "wages," and the Commissioner added without explanation that "[i]t is immaterial, for the purposes of such taxes, whether the quarters or meals are furnished for the convenience of the employer."
22
The Government contends that the 1940 Regulations and the rulings issued pursuant to them acquired "the effect of law" when Congress re-enacted FICA and FUTA without substantial change in the Internal Revenue Code of 1954. United States v. Correll, 389 U.S., at 305, 88 S.Ct., at 448; Cammarano v. United States, 358 U.S. 498, 510-511, 79 S.Ct. 524, 531-32, 3 L.Ed.2d 462 (1959). In its view the 1936 Treasury Regulations and the rulings under them were short-lived and therefore are inconsequential. See National Muffler Dealers Assn. v. United States, 440 U.S., at 485-486, 99 S.Ct., at 1311-1312.15
23
We are unconvinced. Despite Treas.Regs. 106 and 107 and the rulings issued under them, the rule of S.S.T. 302 issued in 1938 that the value of meals provided for the convenience of the employer is excludable from "wages"—remainded in effect until after 1954. In 1957, the Service ruled that S.S.T. 302 did not apply to the provision of meals to restaurant employees, but it also stated that S.S.T. 302 was otherwise "still in full force and effect." Rev.Rul. 57-471, 1957-2 Cum.Bull. 632. The Service did not explain why it took this position as to S.S.T. 302. It is thus clear that as late as 1957-17 years after Treas.Regs. 106 and 107 were adopted—the Service itself was inconsistent in construing the term "wages." Indeed, it was not until 1962 that the Commissioner finally disavowed S.S.T. 302 in Rev.Rul. 62-150, 1962-2 Cum.Bull. 213.16 It therefore assumes a great deal to argue that in 1954, when FICA and FUTA were re-enacted, Congress implicitly approved these Treasury Regulations.17 The Commissioner himself had offered no explanation by 1954 as to why the contemporaneous regulations of 1936 were changed in 1940 or why inconsistent rulings still were being issued. Indeed, the Government in this case has not yet offered an explanation.
24
The history of the Treasury Regulations and rulings interpreting Congress' definition of "wages" in FICA and FUTA therefore lends only the most ambiguous support to the view that Congress intended to approve different interpretations of "wages" when it re-enacted the Internal Revenue Code in 1954. The differing interpretations were not substantially contemporaneous constructions of the statutes, and nothing in the manner in which the interpretations changed is probative of congressional endorsement. Nor is there evidence of any particular consideration of these regulations by Congress during re-enactment.
III
25
We conclude that Treas.Reg. §§ 31.3121(a)-1(f) and 31.3306(b)-1(f) fail to implement the statutory definition of "wages" in a consistent or reasonable manner. The plain language and legislative histories of the relevant Acts indicate that Congress intended its definition to be interpreted in the same manner for FICA and FUTA as for income-tax withholding. The Treasury Regulations on which the Government relies fail to do so, and their inconsistent and unexplained application undermine the contention that Congress nonetheless endorsed them. As Congress did intend a consistent interpretation of its definition, these Treasury Regulations also are inconsistent with the Court's reasoning in Central Illinois.
26
We therefore hold that the Regulations are invalid, and that the Service erred in relying upon them to include in the computation of "wages" the value of the meals and lodging that petitioner provided for its own convenience to its employees on offshore oil rigs. The judgment of the Court of Appeals is reversed.
27
It is so ordered.
28
Justice WHITE, with whom Justice BRENNAN and Justice MARSHALL join, dissenting.
29
For the reasons so well stated by Judge Rubin, I agree with the judgment of the Court of Appeals for the Fifth Circuit that the Regulations under attack here is a permissible interpretation of the controlling provisions of the Internal Revenue Code. Consequently, I dissent and would affirm the judgment.
1
It cost petitioner about $6 per day, per man to engage a caterer who provided meals and maintained living quarters on a vessel moored alongside the drilling rig. It would have cost petitioner about $25 per man to have transported the crews to and from land for each work shift.
2
FICA imposes "on every employer an excise tax, with respect to having individuals in his employ, equal to [specified] percentages of the wages . . . paid by him with respect to employment." 26 U.S.C. § 3111. FICA also imposes a tax upon employees, based upon "wages." § 3101(a). These taxes fund the Social Security programs. FUTA imposes upon certain employers "an excise tax, with respect to having individuals in [their] employ, equal to [specified percentages] of the total wages . . . paid by [them] during the calendar year with respect to employment." § 3301 (1970 ed.). This tax funds the federal component of a cooperative federal-state program of unemployment insurance.
3
Section 3402(a) provides that "every employer making payment of wages shall deduct and withhold upon such wages a tax determined in accordance with tables prescribed by the Secretary."
4
Congress defined "wages" identically in FICA and FUTA, as "all remuneration for employment, including the cash value of all remuneration paid in any medium other than cash." §§ 3121(a) (FICA), 3306(b) (FUTA). For the purpose of income-tax withholding, Congress defined "wages" as "all remuneration (other than fees paid to a public official) for services performed by an employee for his employer, including the cash value of all remuneration paid in any medium other than cash." § 3401(a).
5
See n. 9, infra.
6
The additional assessment totaled $35,198.46, plus interest.
7
See Oscar Mayer & Co. v. United States, 623 F.2d 1223 (CA7 1980); Hotel Conquistador, Inc. v. United States, 597 F.2d 1348, 220 Ct.Cl. 20 (1979), cert. denied, 444 U.S. 1032, 100 S.Ct. 702, 62 L.Ed.2d 668 (1980).
8
Section 119 reads, in pertinent part:
"(a) Meals and lodging furnished to employee, his spouse, and his dependents, pursuant to employment.
"There shall be excluded from gross income of an employee the value of any meals or lodging furnished to him, his spouse, or any of his dependents by or on behalf of his employer for the convenience of the employer, but only if—
"(1) in the case of meals, the meals are furnished on the business premises of the employer, or
"(2) in the case of lodging, the employee is required to accept such lodging on the business premises of his employer as a condition of his employment."
9
The Court of Appeals assumed, without explicitly holding, that the meals and lodging provided by petitioner fall within Treas.Reg. §§ 31.3121(a)-1(f) and 31.3306(b)-1(f), 26 CFR §§ 31.3121(a)-1(f) and 31.3306(b)-1(f) (1980), if those regulations are valid. Petitioner did not question this assumption in its petition for writ of certiorari, although its reply brief on the merits disputed the Government's assertion that these regulations govern this case if valid. Reply Brief for Petitioner 3, n. 6. We accept the Government's assertion for the purposes of this opinion.
10
The convenience-of-the-employer rule was not implicated in determining whether these reimbursements constituted "income" because the requirements of that rule were not present. See n. 8, supra. The treatment of the reimbursements for income taxation was governed by § 162(a)(2), 26 U.S.C. § 162(a)(2), which allows a deduction for certain traveling expenses.
11
The Current Tax Payment Act of 1943 moved the income-tax withholding provisions into the same chapter of the Internal Revenue Code of 1939 as contained FICA and FUTA. The Social Security Act Amendments of 1939, 53 Stat. 1360, had incorporated Titles VIII and IX of the Social Security Act of 1935, as amended, into Chapter 9 of the Internal Revenue Code of 1939, as FICA and FUTA. The old-age and disability tax provisions of Title VIII became FICA in Subchapter A of Chapter 9, and the unemployment compensation tax provision of Title IX became FUTA in Subchapter C. Section 172 of the Revenue Act of 1942 had added the income-tax withholding system to Chapter 1 of the Internal Revenue Code as §§ 450-476. The Current Tax Payment Act moved this system into Chapter 9 of the Code as §§ 1621-1632.
12
The inclusion of "room, board, etc." in "wages" under FICA and FUTA is not inconsistent with the application of the convenience-of-the-employer rule in determining "wages." Under the rule, room and board constitute "wages" unless they are provided for the employer's convenience.
13
It is true that Congress codified the convenience-of-the-employer rule in § 119 of the income-tax provisions of the Code in 1954. But that does not mean that Congress implicitly foreclosed the applicability of the rule to other provisions of the Code. To the contrary, Congress in 1954 retained—and since has left unchanged—the substantially identical definitions of "wages" for all three obligations upon employers; and the rule expressly applies to "wages" under the income-tax withholding provisions. Treas.Reg. § 31.3401(a)-1(b)(9), 26 CFR § 31.3401(a)-1(b)(9) (1980).
14
Treasury Regulations 90, Art. 207, provided that "facilities or privileges (such as entertainment, cafeterias, restaurants, medical services, or so-called 'courtesy' discounts on purchases), furnished or offered by an employer to his employees generally, are not considered as remuneration for services if such facilities or privileges are offered or furnished by the employer merely as a convenience to the employer or as a means of promoting the health, good will, contentment, or efficiency of his employees." Treasury Regulations 91, Art. 14, differed slightly, in that it did not contain the phrase "as a convenience to the employer," but the Service interpreted it in the same way that it interpreted Treas.Regs. 90, Art. 207. See S.S.T. 302, 1938-1 Cum.Bull. 457.
15
The Government also relies on Pacific American Fisheries, Inc. v. United States, 138 F.2d 464 (CA9 1943), in contending that we should infer congressional endorsement of the 1940 Treasury Regulations. The court in that case held that "what might not be taxable income for income tax purposes might constitute wages under the provisions of the Social Security Act." Id., at 465. But the Government cites nothing to suggest that this Court of Appeals' decision was brought to Congress' attention when it re-enacted the Code in 1954.
16
Revenue Ruling 62-150 noted that S.S.T. 302 had been issued under Treasury Regulations 90, Art. 207, which incorporated the convenience-of-the-employer rule for determining "wages," and that the regulations had omitted that rule since 1940. But it did not explain why the Commissioner had changed the regulations in the first place, or why S.S.T. 302 remained in effect for years after the regulations were changed.
17
A series of private rulings from 1954 to 1965 further reveals that S.S.T. 302 remained a source of inquiry and confusion for the Service and employers well after the re-enactment of the Internal Revenue Code in 1954. Although these rulings have no precedential force, see 26 U.S.C. § 6110(j)(3); Treas.Reg. § 301.6110-7(b), 26 CFR § 301.6110-7(b) (1980), they are evidence that S.S.T. 302 did not merely lie dormant on the books after the Commissioner issued Treas.Regs. 106, § 402.227 (FICA), and 107, § 403.227 (FUTA), in 1940.
In the first of this series, a school inquired whether it had to include the value of meals served to teachers for the school's convenience in the teachers' "wages" under FICA. The Service replied in January 1954 that the school need not, for "S.S.T. 302 is applicable to the instant case." Private Ruling 5401062910A. In the second ruling, an employer inquired whether to include in "wages" under FICA the value of meals and lodging provided pursuant to an employment contract. The Service replied in March 1954 that the employer should include this value because of the employment contract. It stated that S.S.T. 302 was "based on the premises that the lunches were of relatively small value and were furnished merely as a means of promoting the health, good will, contentment, or efficiency of the employees." Private Ruling 5403042970A. In the third,
a restaurant inquired whether to include in "wages" for FICA and FUTA the value of meals provided to employees. The Service replied in January 1955 that the restaurant need not include this value, for "S.S.T. 302 is equally applicable in the instant case." Private Ruling 5501244180A. This ruling was flatly inconsistent with the Treasury Regulations that included in "wages" the value of meals provided to employees by restaurants. Treas.Regs. 106, § 402.227 (FICA); Treas.Regs. 107, § 403.227 (FUTA).
The Service had changed its view of S.S.T. 302 by the time it issued the fourth in this series. In 1957, another restaurant inquired whether the value of meals provided to employees was includable in "wages" for FICA and FUTA. Relying on S.S.T. 302, the restaurant contended that the value was excludable. The Service answered that S.S.T. 302 "cannot be regarded as controlling the treatment of meals furnished to employees in the restaurant industry." Private Ruling 5710044200A. Nonetheless, like Rev.Rul. 57-471, 1957-2 Cum.Bull. 630, this private ruling repudiated S.S.T. 302 only as to the restaurant industry, thus leaving the convenience-of-the-employer rule apparently applicable to determinations by other employers. Finally, in 1965, an employer inquired whether the revocation of S.S.T. 302 by Rev.Rul. 62-150, 1962-2 Cum.Bull. 213, applied retroactively. The Service ruled that the limitation of S.S.T. 302 in Rev.Rul. 57-471 applied retroactively only as to employers operating restaurants. Private Ruling 6507023460A.
| 1112
|
452 U.S. 161
101 S.Ct. 2242
68 L.Ed.2d 751
COUNTY OF WASHINGTON et al., Petitioners,v.Alberta GUNTHER et al.
No. 80-429.
Argued March 23, 1981.
Decided June 8, 1981.
Syllabus
While VII of the Civil Rights Act of 1964 makes it unlawful for an employer to discriminate in his employment practices on the basis of sex, the last sentence of § 703(h) of Title VII (Bennett Amendment) provides that it shall not be an unlawful employment practice for any employer to differentiate upon the basis of sex in determining the amount of its employees' wages if such differentiation is "authorized" by the Equal Pay Act of 1963. The latter Act, 29 U.S.C. § 206(d), prohibits employers from discriminating on the basis of sex by paying lower wages to employees of one sex than to employees of the other for performing equal work, "except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex." Respondents, women who were employed as guards in the female section of petitioner county's jail until this section was closed, filed suit under Title VII for backpay and other relief, alleging inter alia, that they had been paid lower wages than male guards in the male section of the jail and that part of this differential was attributable to intentional sex discrimination, since the county set the pay scale for female guards, but not for male guards, at a level lower than that warranted by its own survey of outside markets and the worth of the jobs. The District Court rejected this claim, ruling as a matter of law that a sex-based wage discrimination claim cannot be brought under Title VII unless it would satisfy the equal work standard of the Equal Pay Act. The Court of Appeals reversed.
Held : The Bennett Amendment does not restrict Title VII's prohibition of sex-based wage discrimination to claims for equal pay for "equal work." Rather, claims for sex-based wage discrimination can also be brought under Title VII even though no member of the opposite sex holds an equal but higher paying job, provided that the challenged wage rate is not exempted under the Equal Pay Act's affirmative defenses as to wage differentials attributable to seniority, merit, quantity or quality of production, or any other factor other than sex. Pp. 167-181. (a) The language of the Bennett Amendment—barring sex-based wage discrimination claims under Title VII where the pay differential is "authorized" by the Equal Pay Act—suggests an intention to incorporate into Title VII only the affirmative defenses of the Equal Pay Act, not its prohibitory language requiring equal pay for equal work, which language does not "authorize" anything at all. Nor does this construction of the Amendment render it superfluous. Although the first three affirmative defenses are redundant of provisions elsewhere in § 703(h) of Title VII, the Bennett Amendment guarantees a consistent interpretation of like provisions in both statutes. More importantly, incorporation of the fourth affirmative defense could have significant consequences for Title VII litigation. Pp. 168-171.
(b) The Bennett Amendment's legislative background is fully consistent with this interpretation, and does not support an alternative ruling. Pp. 171-176.
(c) Although some of the earlier interpretations of the Bennett Amendment by the Equal Employment Opportunity Commission may have supported the view that no claim of sex discrimination in compensation may be brought under Title VII except where the Equal Pay Act's "equal work" standard is met, other Commission interpretations frequently adopted the opposite position. And the Commission, in its capacity as amicus curiae, now supports respondents' position. Pp.177-178.
(d) Interpretation of the Bennett Amendment as incorporating only the affirmative defenses of the Equal Pay Act draws additional support from the remedial purposes of the statutes, and interpretations of Title VII that deprive victims of discrimination of a remedy, without clear congressional mandate, must be avoided. Pp. 178-180.
(e) The contention that respondents' interpretation of the Bennett Amendment places the pay structure of virtually every employer and the entire economy at risk and subject to scrutiny by the federal courts, is inapplicable here. Respondents contend that the county evaluated the worth of their jobs and determined that they should be paid approximately 95% as much as the male officers; that it paid them only about 70% as much, while paying the male officers the full evaluated worth of their jobs; and that the failure of the county to pay respondents the full evaluated worth of their jobs can be proved to be attributable to intentional sex discrimination. Thus, the suit does not require a court to make its own subjective assessment of the value of the jobs, or to attempt by statistical technique or other method to quantify the effect of sex discrimination on the wage rates. Pp. 180-181.
9 Cir., 602 F.2d 882 and 9 Cir., 623 F.2d 1303, affirmed.
Lawrence R. Derr, Portland, Or., for petitioners.
Carol A. Hewitt, Portland, Or., for respondents.
Barry Sullivan for the United States, et al., as amici curiae by special leave of Court.
Justice BRENNAN delivered the opinion of the Court.
1
The question presented is whether § 703(h) of Title VII of the Civil Rights Act of 1964, 78 Stat. 257, 42 U.S.C. § 2000e-2(h), restricts Title VII's prohibition of sex-based wage discrimination to claims of equal pay for equal work.
2
* This case arises over the payment by petitioner, County of Washington, Or., of substantially lower wages to female guards in the female section of the county jail than it paid to male guards in the male section of the jail.1 Respondents are four women who were employed to guard female prisoners and to carry out certain other functions in the jail.2 In January 1974, the county eliminated the female section of the jail, transferred the female prisoners to the jail of a nearby county, and discharged respondents. 20 FEP Cases 788, 790 (Or.1976).
3
Respondents filed suit against petitioners in Federal District Court under Title VII, 42 U.S.C. § 2000e et seq., seeking backpay and other relief.3 They alleged that they were paid unequal wages for work substantially equal to that performed by male guards, and in the alternative, that part of the pay differential was attributable to intentional sex discrimination.4 The latter allegation was based on a claim that, because of intentional discrimination, the county set the pay scale for female guards, but not for male guards, at a level lower than that warranted by its own survey of outside markets and the worth of the jobs.
4
After trial, the District Court found that the male guards supervised more than 10 times as many prisoners per guard as did the female guards, and that the females devoted much of their time to less valuable clerical duties. It therefore held that respondents' jobs were not substantially equal to those of the male guards, and that respondents were thus not entitled to equal pay. 20 FEP Cases, at 791. The Court of Appeals affirmed on that issue, and respondents do not seek review of the ruling.
5
The District Court also dismissed respondents' claim that the discrepancy in pay between the male and female guards was attributable in part to intentional sex discrimination. It held as a matter of law that a sex-based wage discrimination claim cannot be brought under Title VII unless it would satisfy the equal work standard of the Equal Pay Act of 1963, 29 U.S.C. § 206(d).5 20 FEP Cases, at 791. The court therefore permitted no additional evidence on this claim, and made no findings on whether petitioner county's pay scales for female guards resulted from intentional sex discrimination.
6
The Court of Appeals reversed, holding that persons alleging sex discrimination "are not precluded from suing under Title VII to protest . . . discriminatory compensation practices" merely because their jobs were not equal to higher paying jobs held by members of the opposite sex. 602 F.2d 882, 891 (CA9 1979), supplemental opinion on denial of rehearing, 9 Cir., 623 F.2d 1303, 1313, 1317 (1980). The court remanded to the District Court with instructions to take evidence on respondents' claim that part of the difference between their rate of pay and that of the male guards is attributable to sex discrimination. We granted certiorari, 449 U.S. 950, 101 S.Ct. 352, 66 L.Ed.2d 213 (1980), and now affirm.
7
We emphasize at the outset the narrowness of the question before us in this case. Respondents' claim is not based on the controversial concept of "comparable worth,"6 under which plaintiffs might claim increased compensation on the basis of a comparison of the intrinsic worth or difficulty of their job with that of other jobs in the same organization or community.7 Rather, respondents seek to prove, by direct evidence, that their wages were depressed because of intentional sex discrimination, consisting of setting the wage scale for female guards, but not for male guards, at a level lower than its own survey of outside markets and the worth of the jobs warranted. The narrow question in this case is whether such a claim is precluded by the last sentence of § 703(h) of Title VII, called the "Bennett Amendment."8
II
8
Title VII makes it an unlawful employment practice for an employer "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex. . . ." 42 U.S.C. § 2000e-2(a). The Bennett Amendment to Title VII, however provides:
9
"It shall not be an unlawful employment practice under this subchapter for any employer to differentiate upon the basis of sex in determining the amount of the wages or compensation paid or to be paid to employees of such employer if such differentiation is authorized by the provisions of section 206(d) of title 29." 42 U.S.C. § 2000e-2(h).
10
To discover what practices are exempted from Title VII's prohibitions by the Bennett Amendment, we must turn to § 206(d) the Equal Pay Act—which provides in relevant part:
11
"No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex." 77 Stat. 56, 29 U.S.C. § 206(d)(1).
12
On its face, the Equal Pay Act contains three restrictions pertinent to this case. First, its coverage is limited to those employers subject to the Fair Labor Standards Act. S.Rep.No.176, 88th Cong., 1st Sess., 2 (1963). Thus, the Act does not apply, for example, to certain businesses engaged in retail sales, fishing, agriculture, and newspaper publishing. See 29 U.S.C. §§ 203(s), 213(a) (1976 ed. and Supp.III). Second, the Act is restricted to cases involving "equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions." 29 U.S.C. § 206(d)(1). Third, the Act's four affirmative defenses exempt any wage differentials attributable to seniority, merit, quantity or quality of production, or "any other factor other than sex." Ibid.
13
Petitioners argue that the purpose of the Bennett Amendment was to restrict Title VII sex-based wage discrimination claims to those that could also be brought under the Equal Pay Act, and thus that claims not arising from "equal work" are precluded. Respondents, in contrast, argue that the Bennett Amendment was designed merely to incorporate the four affirmative defenses of the Equal Pay Act into Title VII for sex-based wage discrimination claims. Respondents thus contend that claims for sex-based wage discrimination can be brought under Title VII even though no member of the opposite sex holds an equal but higher paying job, provided that the challenged wage rate is not based on seniority, merit, quantity or quality of production, or "any other factor other than sex." The Court of Appeals found respondents' interpretation the "more persuasive." 623 F.2d, at 1311. While recognizing that the language and legislative history of the provision are not unambiguous, we conclude that the Court of Appeals was correct.
A.
14
The language of the Bennett Amendment suggests an intention to incorporate only the affirmative defenses of the Equal Pay Act into Title VII. The Amendment bars sex-based wage discrimination claims under Title VII where the pay differential is "authorized" by the Equal Pay Act. Although the word "authorize" sometimes means simply "to permit," it ordinarily denotes affirmative enabling action. Black's Law Dictionary 122 (5th ed. 1979) defines "authorize" as "[t]o empower; to give a right or authority to act."9 Cf. 18 U.S.C. § 1905 (prohibiting the release by federal employees of certain information "to any extent not authorized by law"); 28 U.S.C. § 1343 (1976 ed., Supp.III) (granting district courts jurisdiction over "any civil action authorized by law"). The question, then, is what wage practices have been affirmatively authorized by the Equal Pay Act.
15
The Equal Pay Act is divided into two parts: a definition of the violation, followed by four affirmative defenses. The first part can hardly be said to "authorize" anything at all: it is purely prohibitory. The second part, however, in essence "authorizes" employers to differentiate in pay on the basis of seniority, merit, quantity or quality of production, or any other factor other than sex, even though such differentiation might otherwise violate the Act. It is to these provisions, therefore, that the Bennett Amendment must refer.
16
Petitioners argue that this construction of the Bennett Amendment would render it superfluous. See United States v. Menasche, 348 U.S. 528, 538-539, 75 S.Ct. 513, 519-520, 99 L.Ed. 615 (1955). Petitioners claim that the first three affirmative defenses are simply redundant of the provisions elsewhere in § 703(h) of Title VII that already exempt bona fide seniority and merit systems and systems measuring earnings by quantity or quality of production,10 and that the fourth defense—"any other factor other than sex"—is implicit in Title VII's general prohibition of sex-based discrimination.
17
We cannot agree. The Bennett Amendment was offered as a "technical amendment" designed to resolve any potential conflicts between Title VII and the Equal Pay Act. See infra, at 173. Thus, with respect to the first three defenses, the Bennett Amendment has the effect of guaranteeing that courts and administrative agencies adopt a consistent interpretation of like provisions in both statutes. Otherwise, they might develop inconsistent bodies of case law interpreting two sets of nearly identical language.
18
More importantly, incorporation of the fourth affirmative defense could have significant consequences for Title VII litigation. Title VII's prohibition of discriminatory employment practices was intended to be broadly inclusive, proscribing "not only overt discrimination but also practices that are fair in form, but discriminatory in operation." Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971). The structure of Title VII litigation, including presumptions, burdens of proof, and defenses, has been designed to reflect this approach. The fourth affirmative defense of the Equal Pay Act, however, was designed differently, to confine the application of the Act to wage differentials attributable to sex discrimination. H.R. Rep. No. 309, 88th Cong., 1st Sess., 3 (1963), U.S.Code Cong. & Admin.News 1963, p. 687. Equal Pay Act litigation, therefore, has been structured to permit employers to defend against charges of discrimination where their pay differentials are based on a bona fide use of "other factors other than sex."11 Under the Equal Pay Act, the courts and administrative agencies are not permitted to "substitute their judgment for the judgment of the employer . . . who [has] established and applied a bona fide job rating system," so long as it does not discriminate on the basis of sex. 109 Cong.Rec. 9209 (1963) (statement of Rep. Goodell, principal exponent of the Act). Although we do not decide in this case how sex-based wage discrimination litigation under Title VII should be structured to accommodate the fourth affirmative defense of the Equal Pay Act, see n. 8, supra, we consider it clear that the Bennett Amendment, under this interpretation, is not rendered superfluous.
19
We therefore conclude that only differentials attributable to the four affirmative defenses of the Equal Pay Act are "authorized" by that Act within the meaning of § 703(h) of Title VII.
B
20
The legislative background of the Bennett Amendment is fully consistent with this interpretation.
21
Title VII was the second bill relating to employment discrimination to be enacted by the 88th Congress. Earlier, the same Congress passed the Equal Pay Act "to remedy what was perceived to be a serious and endemic problem of [sex-based] employment discrimination in private industry," Corning Glass Works v. Brennan, 417 U.S. 188, 195, 94 S.Ct. 2223, 2228, 41 L.Ed.2d 1 (1974). Any possible inconsistency between the Equal Pay Act and Title VII did not surface until late in the debate over Title VII in the House of Representatives, because, until then, Title VII extended only to discrimination based on race, color, religion, or national origin, see H.R. Rep. No. 914, 88th Cong., 1st Sess., 10 (1963), U.S.Code Cong. & Admin.News 1964, p. 2355, while the Equal Pay Act applied only to sex discrimination. Just two days before voting on Title VII, the House of Representatives amended the bill to proscribe sex discrimination, but did not discuss the implications of the overlapping jurisdiction of Title VII, as amended, and the Equal Pay Act. See 110 Cong.Rec. 2577-2584 (1964). The Senate took up consideration of the House version of the Civil Rights bill without reference to any committee. Thus, neither House of Congress had the opportunity to undertake formal analysis of the relation between the two statutes.12
22
Several Senators expressed concern that insufficient attention had been paid to possible inconsistencies between the statutes. See id., at 7217 (statement of Sen. Clark); id., at 13647 (statement of Sen. Bennett). In an attempt to rectify the problem, Senator Bennett proposed his amendment. Id., at 13310. The Senate leadership approved the proposal as a "technical amendment" to the Civil Rights bill, and it was taken up on the floor on June 12, 1964, after cloture had been invoked. The Amendment engendered no controversy, and passed without recorded vote. The entire discussion comprised a few short statements:
23
"Mr. BENNETT. Mr. President, after many years of yearning by members of the fair sex in this country, and after very careful study by the appropriate committees of Congress, last year Congress passed the so-called Equal Pay Act, which became effective only yesterday.
24
"By this time, programs have been established for the effective administration of this act. Now, when the civil rights bill is under consideration, in which the word 'sex' has been inserted in many places, I do not believe sufficient attention may have been paid to possible conflicts between the wholesale insertion of the word 'sex' in the bill and in the Equal Pay Act.
25
"The purpose of my amendment is to provide that in the event of conflicts, the provisions of the Equal Pay Act shall not be nullified.
26
"I understand that the leadership in charge of the bill have agreed to the amendment as a proper technical correction of the bill. If they will confirm that understand [sic], I shall ask that the amendment be voted on without asking for the yeas and nays.
27
"Mr. HUMPHREY. The amendment of the Senator from Utah is helpful. I believe it is needed. I thank him for his thoughtfulness. The amendment is fully acceptable.
28
"Mr. DIRKSEN. Mr. President, I yield myself 1 minute.
29
"We were aware of the conflict that might develop, because the Equal Pay Act was an amendment to the Fair Labor Standards Act. The Fair Labor Standards Act carries out certain exceptions.
30
"All that the pending amendment does is recognize those exceptions, that are carried in the basic act.
31
"Therefore, this amendment is necessary, in the interest of clarification." Id., at 13647.
32
As this discussion shows, Senator Bennett proposed the Amendment because of a general concern that insufficient attention had been paid to the relation between the Equal Pay Act and Title VII, rather than because of a specific potential conflict between the statutes.13 His explanation that the Amendment assured that the provisions of the Equal Pay Act "shall not be nullified" in the event of conflict with Title VII may be read as referring to the affirmative defenses of the Act. Indeed, his emphasis on the "technical" nature of the Amendment and his concern for not disrupting the "effective administration" of the Equal Pay Act are more compatible with an interpretation of the Amendment as incorporating the Act's affirmative defenses, as administratively interpreted, than as engrafting all the restrictive features of the Equal Pay Act onto Title VII.14
33
Senator Dirksen's comment that all that the Bennett Amendment does is to "recognize" the exceptions carried in the Fair Labor Standards Act, suggests that the Bennett Amendment was necessary because of the exceptions to coverage in the Fair Labor Standards Act, which made the Equal Pay Act applicable to a narrower class of employers than was Title VII. See supra, at 167-168. The Bennett Amendment clarified that the standards of the Equal Pay Act would govern even those wage discrimination cases where only Title VII would otherwise apply. So understood, Senator Dirksen's remarks are not inconsistent with our interpretation.15
34
Although there was no debate on the Bennett Amendment in the House of Representatives when the Senate version of the Act returned for final approval, Representative Celler explained each of the Senate's amendments immediately prior to the vote. He stated that the Bennett Amendment "[p]rovides that compliance with the Fair Labor Standards Act as amended satisfies the requirement of the title barring discrimination because of sex. . . ." 110 Cong.Rec. 15896 (1964). If taken literally, this explanation would restrict Title VII's coverage of sex discrimination more severely than even petitioners suggest: not only would it confine wage discrimination claims to those actionable under the Equal Pay Act, but it would block all other sex discrimination claims as well. We can only conclude that Representative Celler's explanation was not intended to be precise, and does not provide a solution to the present problem.16
35
Thus, although the few references by Members of Congress to the Bennett Amendment do not explicitly confirm that its purpose was to incorporate into Title VII the four affirmative defenses of the Equal Pay Act in sex-based wage discrimination cases, they are broadly consistent with such a reading, and do not support an alternative reading.
C
36
The interpretations of the Bennett Amendment by the agency entrusted with administration of Title VII—the Equal Employment Opportunity Commission—do not provide much guidance in this case. Cf. Griggs v. Duke Power Co., 401 U.S., at 433-434, 91 S.Ct., at 854-855. The Commission's 1965 Guidelines on Discrimination Because of Sex stated that "the standards of 'equal pay for equal work' set forth in the Equal Pay Act for determining what is unlawful discrimination in compensation are applicable to Title VII." 29 CFR § 1604.7(a) (1966). In 1972, the EEOC deleted this portion of the Guideline, see 37 Fed.Reg. 6837 (1972). Although the original Guideline may be read to support petitioners' argument that no claim of sex discrimination in compensation may be brought under Title VII except where the Equal Pay Act's "equal work" standard is met, EEOC practice under this Guideline was considerably less than steadfast.
37
The restrictive interpretation suggested by the 1965 Guideline was followed in several opinion letters in the following years.17 During the same period, however, EEOC decisions frequently adopted the opposite position. For example, a reasonable-cause determination issued by the Commission in 1968 stated that "the existence of separate and different wage rate schedules for male employees on the one hand, and female employees on the other doing reasonably comparable work, establishes discriminatory wage rates based solely on the sex of the workers." Harrington v. Piccadilly Cafeteria, Case No. AU 7-3-173 (Apr. 25, 1968).18
38
The current Guideline does not purport to explain whether the equal work standard of the Equal Pay Act has any application to Title VII, see 29 CFR § 1604.8 (1980), but the EEOC now supports respondents' position in its capacity as amicus curiae. In light of this history, we feel no hesitation in adopting what seems to us the most persuasive interpretation of the Amendment, in lieu of that once espoused, but not consistently followed, by the Commission.
D
39
Our interpretation of the Bennett Amendment draws additional support from the remedial purposes of Title VII and the Equal Pay Act. Section 703(a) of Title VII makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment" because of such individual's sex. 42 U.S.C. § 2000e-2(a) (emphasis added). As Congress itself has indicated, a "broad approach" to the definition of equal employment opportunity is essential to overcoming and undoing the effect of discrimination. S.Rep. No. 867, 88th Cong., 2d Sess., 12 (1964). We must therefore avoid interpretations of Title VII that deprive victims of discrimination of a remedy, without clear congressional mandate.
40
Under petitioners' reading of the Bennett Amendment, only those sex-based wage discrimination claims that satisfy the "equal work" standard of the Equal Pay Act could be brought under Title VII. In practical terms, this means that a woman who is discriminatorily underpaid could obtain no relief—no matter how egregious the discrimination might be—unless her employer also employed a man in an equal job in the same establishment, at a higher rate of pay. Thus, if an employer hired a woman for a unique position in the company and then admitted that her salary would have been higher had she been male, the woman would be unable to obtain legal redress under petitioners' interpretation. Similarly, if an employer used a transparently sex-biased system for wage determination, women holding jobs not equal to those held by men would be denied the right to prove that the system is a pretext for discrimination. Moreover, to cite an example arising from a recent case, Los Angeles Dept. of Water & Power v. Manhart, 435 U.S. 702, 98 S.Ct. 1370, 55 L.Ed.2d 657 (1978), if the employer required its female workers to pay more into its pension program than male workers were required to pay, the only women who could bring a Title VII action under petitioners' interpretation would be those who could establish that a man performed equal work: a female auditor thus might have a cause of action while a female secretary might not. Congress surely did not intend the Bennett Amendment to insulate such blatantly discriminatory practices from judicial redress under Title VII.19
41
Moreover, petitioners' interpretation would have other far-reaching consequences. Since it rests on the proposition that any wage differentials not prohibited by the Equal Pay Act are "authorized" by it, petitioners' interpretation would lead to the conclusion that discriminatory compensation by employers not covered by the Fair Labor Standards Act is "authorized"—since not prohibited—by the Equal Pay Act. Thus it would deny Title VII protection against sex-based wage discrimination by those employers not subject to the Fair Labor Standards Act but covered by Title VII. See supra, at 167-168. There is no persuasive evidence that Congress intended such a result, and the EEOC has rejected it since at least 1965. See 29 CFR § 1604.7 (1966). Indeed, petitioners themselves apparently acknowledge that Congress intended Title VII's broader coverage to apply to equal pay claims under Title VII, thus impliedly admitting the fallacy in their own argument. Brief for Petitioners 48.
42
Petitioners' reading is thus flatly inconsistent with our past interpretations of Title VII as "prohibit[ing] all practices in whatever form which create inequality in employment opportunity due to discrimination on the basis of race, religion, sex, or national origin." Franks v. Bowman Transportation Co., 424 U.S. 747, 763, 96 S.Ct. 1251, 1263, 47 L.Ed.2d 444 (1976). As we said in Los Angeles Dept. of Water & Power v. Manhart, supra, at 707, n. 13, 98 S.Ct., at 1375, n. 13: "In forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes." (Emphasis added.) We must therefore reject petitioners' interpretation of the Bennett Amendment.
III
43
Petitioners argue strenuously that the approach of the Court of Appeals places "the pay structure of virtually every employer and the entire economy . . . at risk and subject to scrutiny by the federal courts." Brief for Petitioners 99-100. They raise the specter that "Title VII plaintiffs could draw any type of comparison imaginable concerning job duties and pay between any job predominantly performed by women and any job predominantly performed by men." Id., at 101. But whatever the merit of petitioners' arguments in other contexts, they are inapplicable here, for claims based on the type of job comparisons petitioners describe are manifestly different from respondents' claim. Respondents contend that the County of Washington evaluated the worth of their jobs; that the county determined that they should be paid approximately 95% as much as the male correctional officers; that it paid them only about 70% as much, while paying the male officers the full evaluated worth of their jobs; and that the failure of the county to pay respondents the full evaluated worth of their jobs can be proved to be attributable to intentional sex discrimination. Thus, respondents' suit does not require a court to make its own subjective assessment of the value of the male and female guard jobs, or to attempt by statistical technique or other method to quantify the effect of sex discrimination on the wage rates.20
44
We do not decide in this case the precise contours of lawsuits challenging sex discrimination in compensation under Title VII. It is sufficient to note that respondents' claims of discriminatory undercompensation are not barred by § 703(h) of Title VII merely because respondents do not perform work equal to that of male jail guards. The judgment of the Court of Appeals is therefore
45
Affirmed.
46
Justice REHNQUIST, with whom THE CHIEF JUSTICE, Justice STEWART, and Justice POWELL join, dissenting.
47
The Court today holds a plaintiff may state a claim of sex-based wage discrimination under Title VII without even establishing that she has performed "equal or substantially equal work" to that of males as defined in the Equal Pay Act. Because I believe that the legislative history of both the Equal Pay Act of 1963 and Title VII clearly establishes that there can be no Title VII claim of sex-based wage discrimination without proof of "equal work," I dissent.
48
* Because the Court never comes to grips with petitioners' argument, it is necessary to restate it here. Petitioners argue that Congress in adopting the Equal Pay Act specifically addressed the problem of sex-based wage discrimination and determined that there should be a remedy for claims of unequal pay for equal work, but not for "comparable" work. Petitioners further observe that nothing in the legislative history of Title VII, enacted just one year later in 1964, reveals an intent to overrule that determination. Quite the contrary, petitioners note that the legislative history of Title VII, including the adoption of the so-called Bennett Amendment, demonstrates Congress' intent to require all sex-based wage discrimination claims, whether brought under the Equal Pay Act or under Title VII, to satisfy the "equal work" standard. Because respondents have not satisfied the "equal work" standard, petitioners conclude that they have not stated a claim under Title VII.
49
In rejecting that argument, the Court ignores traditional canons of statutory construction and relevant legislative history. Although I had thought it well settled that the legislative history of a statute is a useful guide to the intent of Congress, the Court today claims that the legislative history "has no bearing on the meaning of the [Act]," ante, at 173, n.12, "does not provide a solution to the present problem," ante, at 176, and is simply of "no weight." Ante, at 176, n.16. Instead, the Court rests its decision on its unshakable belief that any other result would be unsounded public policy. It insists that there simply must be a remedy for wage discrimination beyond that provided in the Equal Pay Act. The Court does not explain why that must be so, nor does it explain what that remedy might be. And, of course, the Court cannot explain why it and not Congress is charged with determining what is and what is not sound public policy.
50
The closest the Court can come in giving a reason for its decision is its belief that interpretations of Title VII which "deprive victims of discrimination of a remedy, without clear congressional mandate" must be avoided. Ante, at 178. But that analysis turns traditional cannons of statutory construction on their head. It has long been the rule that when a legislature enacts a statute to protect a class of persons, the burden is on the plaintiff to show statutory coverage, not on the defendant to show that there is a "clear congressional mandate" for excluding the plaintiff from coverage. Such a departure from traditional rules is particularly unwarranted in this case, where the doctrine of in pari materia suggests that all claims of sex-based wage discrimination are governed by the substantive standards of the previously enacted and more specific legislation, the Equal Pay Act.
51
Because the decision does not rest on any reasoned statement of logic or principle, it provides little guidance to employers or lower courts as to what types of compensation practices might now violate Title VII. The Court correctly emphasizes that its decision is narrow, and indeed one searches the Court's opinion in vain for a hint as to what pleadings or proof other than that adduced in this particular case, see ante, at 180-181, would be sufficient to state a claim of sex-based wage discrimination under Title VII. To paraphrase Justice Jackson, the Court today does not and apparently cannot enunciate any legal criteria by which suits under Title VII will be adjudicated and it lays "down no rule other than our passing impression to guide ourselves or our successors." Bob-Lo Excursion Co. v. Michigan, 333 U.S. 28, 45, 68 S.Ct. 358, 366, 92 L.Ed. 455 (1948). All we know is that Title VII provides a remedy when, as here, plaintiffs seek to show by direct evidence that their employer intentionally depressed their wages. And, for reasons that go largely unexplained, we also know that a Title VII remedy may not be available to plaintiffs who allege theories different than that alleged here, such as the so-called "comparable worth" theory. One has the sense that the decision today will be treated like a restricted railroad ticket, "good for this day and train only." Smith v. Allwright, 321 U.S. 649, 669, 64 S.Ct. 757, 768, 88 L.Ed. 987 (1944) (Roberts, J., dissenting).
52
In the end, however, the flaw with today's decision is not so much that it is so narrowly written as to be virtually meaningless, but rather that its legal analysis is wrong. The Court is obviously more interested in the consequences of its decision that in discerning the intention of Congress. In reaching its desired result, the Court conveniently and persistently ignores relevant legislative history and instead relies wholly on what it believes Congress should have enacted.
II
The Equal Pay Act
53
The starting point for any discussion of sex-based wage discrimination claims must be the Equal Pay Act of 1963, enacted as an amendment to the Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201-219 (1976 ed., Supp.III). It was there that Congress, after 18 months of careful and exhaustive study, specifically addressed the problem of sex-based wage discrimination. The Equal Pay Act states that employers shall not discriminate on the basis of sex by paying different wages for jobs that require equal skill, effort, and responsibility. In adopting the "equal pay for equal work" formula, Congress carefully considered and ultimately rejected the "equal pay for comparable worth" standard advanced by respondents and several amici. As the legislative history of the Equal Pay Act amply demonstrates, Congress realized that the adoption of the comparable-worth doctrine would ignore the economic realities of supply and demand and would involve both governmental agencies and courts in the impossible task of ascertaining the worth of comparable work, an area in which they have little expertise.
54
The legislative history of the Equal Pay Act begins in 1962 when Representatives Green and Zelenko introduced two identical bills, H.R. 8898 and H.R. 10226 respectively, representing the Kennedy administration's proposal for equal pay legislation. Both bills stated in pertinent part:
55
"SEC. 4. No employer . . . shall discriminate . . . between employees on the basis of sex by paying wages to any employee at a rate less than the rate at which he pays wages to any employee of the opposite sex for work of comparable character on jobs the performance of which requires comparable skills, except where such payment is made pursuant to a seniority or merit increase system which does not discriminate on the basis of sex." H.R. 8898, 87th Cong., 1st Sess. (1961); H.R. 10226, 87th Cong., 2d Sess. (1962) (emphasis supplied).1
56
During the extensive hearings on the proposal, the administration strenuously urged that Congress adopt the "comparable" language, nothing that the comparability of different jobs could be determined through job evaluation procedures. Hearings on H.R. 8898, H.R. 10226 before the Select Subcommittee on Labor of the House Committee on Education and Labor, 87th Cong., 2d Sess. 16, 27 (1962) (testimony of Secretary of Labor Arthur Goldberg and Assistant Secretary of Labor Esther Peterson). A bill containing the comparable-work formula, then denominated H.R. 11677, was reported out of the House Committee on Education and Labor and reached the full House. Once there, Representative St. George objected to the "comparable work" language of the bill and offered an amendment which limited equal pay claims to those "for equal work on jobs, the performance of which requires equal skills." 108 Cong.Rec. 14767 (1962). As she explained, her purpose was to limit wage discrimination claimsto the situation where men and women were paid differently for performing the same job.
57
"What we want to do in this bill is to make it exactly what it says. It is called equal pay for equal work in some of the committee hearings. There is a great difference between the word 'comparable' and the word 'equal.'
58
* * * * *
59
". . . The word 'comparable' opens up great vistas. It gives tremendous latitude to whoever is to be arbitrator in these disputes." Ibid. (Emphasis supplied.)
60
Representative Landrum echoed those remarks. He stressed that the St. George amendment would prevent "the trooping around all over the country of employees of the Labor Department harassing business with their various interpretations of the term 'comparable' when 'equal' is capable of the same definition throughout the United States." Id., at 14768. The administration, represented by Representatives Zelenko and Green vigorously urged the House to reject the St. George amendment. They observed that the "equal work" standard was narrower than the existing "equal pay for comparable work" language and cited correspondence from Secretary of Labor Goldberg that "comparable is a key word in our proposal." Id., at 14768-14769. The House, however, rejected that advice and adopted the St. George Amendment. When the Senate considered the bill, it too rejected the "comparable work" theory in favor of the "equal work" standard.
61
Because the Conference Committee failed to report a bill out of Committee, enactment of equal pay legislation was delayed until 1963. Equal pay legislation, containing the St. George amendment, was reintroduced at the beginning of the session. The congressional debate on that legislation leaves no doubt that Congress clearly rejected the entire notion of "comparable work." For example, Representative Goodell, a cosponsor of the Act, stressed the significance of the change from "comparable work" to "equal work."2
62
"I think it is important that we have clear legislative history at this point. Last year when the House changed the word 'comparable' to 'equal' the clear intention was to narrow the whole concept. We went from 'comparable' to 'equal' meaning that the jobs involved should be virtually identical, that is, that they would be very much alike or closely related to each other.
63
"We do not expect the Labor Department to go into an establishment and attempt to rate jobs that are not equal. We do not want to hear the Department say, 'Well, they amount to the same thing,' and evaluate them so that they come up to the same skill or point. We expect this to apply only to jobs that are substantially identical or equal." 109 Cong.Rec. 9197 (1963) (emphasis supplied).
64
Representative Frelinghuysen agreed with those remarks.
65
"[W]e can expect that the administration of the equal pay concept, while fair and effective, will not be excessive nor excessively wide ranging. What we seek to insure, where men and women are doing the same job under the same working conditions[,] that they will receive the same pay. It is not intended that either the Labor Department or individual employees will be equipped with hunting licenses.
66
* * * * *
67
". . . [The EPA ] is not intended to compare unrelated jobs, or jobs that have been historically and normally considered by the industry to be different." Id., at 9196 (emphasis supplied).3
68
Thus, the legislative history of the Equal Pay Act clearly reveals that Congress was unwilling to give either the Federal Government or the courts broad authority to determine comparable wage rates. Congress recognized that the adoption of such a theory would ignore economic realities and would result in major restructuring of the American economy. Instead, Congress concluded that governmental intervention to equalize wage differentials was to be undertaken only within one circumstance: when men's and women's jobs were identical or nearly so, hence unarguably of equal worth. It defies common sense to believe that the same Congress—which, after 18 months of hearings and debates, had decided in 1963 upon the extent of federal involvement it desired in the area of wage rate claims—intended sub silentio to reject all of this work and to abandon the limitations of the equal work approach just one year later, when it enacted Title VII.
Title VII
69
Congress enacted the Civil Rights Act of 1964, 42 U.S.C. § 2000a et seq., one year after passing the Equal Pay Act. Title VII prohibits discrimination in employment on the basis of race, color, national origin, religion, and sex. 42 U.S.C. § 2000e-2(a)(1). The question is whether Congress intended to completely turn its back on the "equal work" standard enacted in the Equal Pay Act of 1963 when it adopted Title VII only one year later.
70
The Court answers that question in the affirmative, concluding that Title VII must be read more broadly than the Equal Pay Act. In so holding, the majority wholly ignores this Court's repeated adherence to the doctrine of in pari materia, namely, 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." Radzanower v. Touche Ross & Co., 426 U.S. 148, 153, 96 S.Ct. 1989, 1992, 48 L.Ed.2d 540 (1976), citing Morton v. Mancari, 417 U.S. 535, 550-551, 94 S.Ct. 2474, 2482-2483, 41 L.Ed.2d 290 (1974); United States v. United Continental Tuna Corp., 425 U.S. 164, 169, 96 S.Ct. 1319, 1323, 47 L.Ed.2d 653 (1976). In Continental Tuna, for example, the lower court held that an amendment to the Suits in Admiralty Act allowed plaintiffs to sue the United States under that Act and ignore the applicable and more stringent provisions of the previously enacted Public Vessels Act. We rejected that construction because it amounted to a repeal of the Public Vessels Act by implication. We recognized that such an evasion of the congressional purpose reflected in the restrictive provisions would not be permitted absent some clear statement by Congress that such was intended by the later statute. Similarly, in Train v. Colorado Public Interest Research Group, 426 U.S. 1, 96 S.Ct. 1938, 48 L.Ed.2d 434 (1976), this Court rejected a construction of the Federal Water Control Act which would have substantially altered the regulation scheme established under the Atomic Energy Act, without a "clear indication of legislative intent." Id., at 24, 96 S.Ct., at 1948.
71
When those principles are applied to this case, there can be no doubt that the Equal Pay Act and Title VII should be construed in pari materia. The Equal Pay Act is the more specific piece of legislation, dealing solely with sex-based wage discrimination, and was the product of exhaustive congressional study. Title VII, by contrast, is a general antidiscrimination provision, passed with virtually no consideration of the specific problem of sex-based wage discrimination. See General Electric Co. v. Gilbert, 429 U.S. 125, 143, 97 S.Ct. 401, 411, 50 L.Ed.2d 343 (1976) (the legislative history of the sex discrimination amendment is "notable primarily for its brevity").4 Most significantly, there is absolutely nothing in the legislative history of Title VII which reveals an intent by Congress to repeal by implication the provisions of the Equal Pay Act. Quite the contrary, what little legislative history there is on the subject—such as the comments of Senators Clark and Bennett and Representative Celler, and the contemporaneous interpretation of the EEOC—indicates that Congress intended to incorporate the substantive standards of the Equal Pay Act into Title VII so that sex-based wage discrimination claims would be governed by the equal work standard of the Equal Pay Act and by that standard alone. See discussion infra, at 190-197.
72
In order to reach the result it so desperately desires, the Court neatly solves the problem of this contrary legislative history by simply giving it "no weight." Ante, at 172, n.12; 176, and n.16. But it cannot be doubted that Chief Justice Marshall stated the correct rule that "[w]here the mind labours to discover the design of the legislature, it seizes every thing from which aid can be derived. . . ." United States v. Fisher, 2 Cranch 358, 386, 2 L.Ed. 304 (1805). In this case, when all of the pieces of legislative history are considered in toto, the Court's version of the legislative history of Title VII is barely plausible, say nothing of convincing.
73
Title VII was first considered by the House, where the prohibition against sex discrimination was added on the House floor. When the bill reached the Senate it bypassed the Senate Committee system and was presented directly to the full Senate. It was there that concern was expressed about the relation of the Title VII sex discrimination ban to the Equal Pay Act. In response to questions by Senator Dirksen, Senator Clark, the floor manager for the bill, prepared a memorandum in which he attempted to put to rest certain objections which he believed to be unfounded. Senator Clark's answer to Senator Dirksen reveals that Senator Clark believed that all cases of wage discrimination under Title VII would be treated under the standards of the Equal Pay Act:
74
"Objection. The sex antidiscrimination provisions of the bill duplicate the coverage of the Equal Pay Act of 1963. But more than this, they extend far beyond the scope and coverage of the Equal Pay Act. They do not include the limitations in that act with respect to equal work on jobs requiring equal skills in the same establishments, and thus, cut across different jobs.
75
"Answer. The Equal Pay Act is a part of the wage hour law, with different coverage and with numerous exemptions unlike title VII. Furthermore, under title VII, jobs can no longer be classified as to sex, except where there is a rational basis for discrimination on the ground of bona fide occupational qualification. The standards in the Equal Pay Act for determining discrimination as to wages, of course, are applicable to the comparable situation under title VII." 110 Cong.Rec. 7217 (1964) (emphasis added).
76
In this passage, Senator Clark asserted that the sex discrimination provisions of Title VII were necessary, notwithstanding the Equal Pay Act, because (a) the Equal Pay Act had numerous exemptions for various types of businesses, and (b) Title VII covered discrimination in access (e. g., assignment and promotion) to jobs, not just compensation. In addition, Senator Clark made clear that in the compensation area the equal work standard would continue to be the applicable standard. He explained, in answer to Senator Dirksen's concern, that when different jobs were at issue, the Equal Pay Act's legal standard—the "equal work" standard—would apply to limit the reach of Title VII. Thus Senator Clark rejected as unfounded the objections that the sex provisions of Title VII were unnecessary on the one hand, or extended beyond the equal work standard on the other.
77
Notwithstanding Senator Clark's explanation, Senator Bennett remained concerned that, absent an explicit cross-reference to the Equal Pay Act, the "wholesale assertion" of the word "sex" in Title VII could nullify the carefully conceived Equal Pay Act standard. 110 Cong.Rec. 13647 (1964). Accordingly, he offered, and the Senate accepted, the following amendment to Title VII:
78
"It shall not be an unlawful employment practice under this subchapter for any employer to differentiate upon the basis of sex in determining the amount of the wages or compensation paid or to be paid to employees of such employer if such differentiation is authorized by the provisions of [§ 6(d) of the Equal Pay Act]."
79
Although the language of the Bennett Amendment is ambiguous, the most plausible interpretation of the Amendment is that it incorporates the substantive standard of the Equal Pay Act—the equal pay for equal work standard—into Title VII. A number of considerations support that view. In the first place, that interpretation is wholly consistent with, and in fact confirms, Senator Clark's earlier explanation of Title VII. Second, in the limited time available to Senator Bennett when he offered his amendment—the time for debate having been limited by cloture—he explained the Amendment's purpose.5
80
"Mr. President, after many years of yearning by members of the fair sex in this country, and after very careful study by the appropriate committees of Congress, last year Congress passed the so-called Equal Pay Act, which became effective only yesterday.
81
"By this time, programs have been established for the effective administration of this act. Now when the civil rights bill is under consideration, in which the word sex has been inserted in may places, I do not believe sufficient attention may have been paid to possible conflicts between the wholesale insertion of the word 'sex' in the bill and the Equal Pay Act.
82
"The purpose of my amendment is to provide that in the event of conflicts, the provisions of the Equal Pay Act shall not be nullified." 110 Cong.Rec. 13647 (1964) (emphasis supplied).
83
It is obvious that the principal way in which the Equal Pay Act could be "nullified" would be to allow plaintiffs unable to meet the "equal pay for equal work" standard to proceed under Title VII asserting some other theory of wage discrimination, such as "comparable worth." If plaintiffs can proceed under Title VII without showing that they satisfy the "equal work" criterion of the Equal Pay Act, one would expect all plaintiffs to file suit under the "broader" Title VII standard. Such a result would, for all practical purposes, constitute an implied repeal of the equal work standard of the Equal Pay Act and render that Act a nullity. This was precisely the result Congress sought to avert when it adopted the Bennett Amendment, and the result the Court today embraces.
84
Senator Bennett confirmed this interpretation just one year later. The Senator expressed concern as to the proper interpretation of his Amendment and offered his written understanding of the Amendment.
85
"The Amendment therefore means that it is not an unlawful employment practice: . . . (b) to have different standards of compensation for nonexempt employees, where such differentiation is not prohibited by the equal pay amendment to the Fair Labor Standards Act.
86
"Simply stated, the [Bennett] amendment means that discrimination in compensation on account of sex does not violate title VII unless it also violates the Equal Pay Act." 111 Cong.Rec. 13359 (1965) (emphasis supplied).
87
Senator Dirksen agreed that this interpretation was "precisely" the one that he, Senator Humphrey, and their staffs had in mind when the Senate adopted the Bennett Amendment. Id., at 13360. He added: "I trust that that will suffice to clear up in the minds of anyone, whether in the Department of Justice or elsewhere, what the Senate intended when that amendment was accepted." Ibid.6
88
We can glean further insight into the proper interpretation of the Bennett Amendment from the comments of Representative Celler, the Chairman of the House Judiciary Committee and sponsor of Title VII. After the Senate added the Bennett Amendment to Title VII and sent the bill to the House, Representative Celler set out in the record the understanding of the House that sex-based compensation claims would not satisfy Title VII unless they met the equal work standards of the Equal Pay Act. He explained that the Bennett Amendment "[p]rovides that compliance with the [EPA] satisfies the requirement of the title barring discrimination because of sex—[§ 703(h)]." 110 Cong.Rec. 15896 (1964). The majority discounts this statement because it is somewhat "imprecise." Ante, at 176. I find it difficult to believe that a comment to the full House made by the sponsor of Title VII, who obviously understood its provisions, including its amendments, is of no aid whatsoever to the inquiry before us.7
89
Finally, the contemporaneous interpretations of the Bennett Amendment by the EEOC, which are entitled to great weight since they were issued while the intent of Congress was still fresh in the administrator's mind, further buttresses petitioners' interpretation of the Amendment. Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965); General Electric Co. v. Gilbert, 429 U.S., at 142, 97 S.Ct., at 411. The EEOC interpretations clearly state that the Equal Pay Act's equal work standard is incorporated into Title VII as the standard which must be met by plaintiffs alleging sex-based compensation claims under Title VII. The Commission's 1965 Guidelines on Discrimination Because of Sex explain:
90
"Title VII requires that its provisions be harmonized with the Equal Pay Act (section 6(d) of the Fair Labor Standards Act of 1938, 29 U.S.C. § 206(d)) in order to avoid conflicting interpretations or requirements with respect to situations to which both statutes are applicable. Accordingly, the Commission interprets section 703(h) to mean that the standards of 'equal pay for equal work' set forth in the Equal Pay Act for determining what is unlawful discrimination in compensation are applicable to Title VII. However, it is the judgment of the Commission that the employee coverage of the prohibition against discrimination in compensation because of sex is coextensive with that of the other prohibitions in section 703, and is not limited by § 703(h) to those employees covered by the Fair Labor Standards Act." 29 CFR § 1604.7 (1966). (Emphasis supplied.)
91
Three weeks after the EEOC issued its Guidelines, the General Counsel explained the Guidelines in an official opinion letter.8 He explained:
92
"The Commission, as indicated in § 1604.7 of the Guidelines issued November 24, 1965, 30 F.R. 14928, has decided that section 703(h), Title VII of the Civil Rights Act of 1964 incorporates the definition of discrimination in compensation found in the Equal Pay Act, including the four enumerated exceptions. . . ." General Counsel's opinion of December 29, 1965, App. to Brief for Petitioners 7a. (Emphasis supplied.)
93
Thus EEOC's contemporaneous interpretation of the Bennett Amendment leaves no room for doubt: The Bennett Amendment incorporates the equal work standard of discrimination into Title VII.9
94
The Court blithely ignores all of this legislative history and chooses to interpret the Bennett Amendment as incorporating only the Equal Pay Act's four affirmative defenses, and not the equal work requirement.10 That argument does not survive scrutiny. In the first place, the language of the Amendment draws no distinction between the Equal Pay Act's standard for liability equal pay for equal work—and the Act's defenses. Nor does any Senator or Congressman even come close to suggesting that the Amendment incorporates the Equal Pay Act's affirmative defenses into Title VII, but not the equal work standard itself. Quite the contrary, the concern was that Title VII would render the Equal Pay Act a nullity. It is only too obvious that reading just the four affirmative defenses of the Equal Pay Act into Title VII does not protect the careful draftsmanship of the Equal Pay Act. We must examine statutory words in a manner that " 'reconstitute[s] the gamut of values current at the time when the words were uttered.' " National Woodwork Manufacturers Assn. v. NLRB, 386 U.S. 612, 620, 87 S.Ct. 1250, 1255, 18 L.Ed.2d 357 (1967) (quoting L. Hand, J.). In this case, it stands Congress' concern on its head to suppose that Congress sought to incorporate the affirmative defenses, but not the equal work standard. It would be surprising if Congress in 1964 sought to reverse its decision in 1963 to require a showing of "equal work" as a predicate to an equal pay claim and at the same time carefully preserve the four affirmative defenses.
95
Moreover, even on its own terms the Court's argument is unpersuasive. The Equal Pay Act contains four statutory defenses: different compensation is permissible if the differential is made by way of (1) a seniority system, (2) a merit system, (3) a system which measures earnings by quantity or quality of production, or (4) is based on any other factor other than sex. 29 U.S.C. § 206(d)(1). The flaw in interpreting the Bennett Amendment as incorporating only the four defenses of the Equal Pay Act into Title VII is that Title VII, even without the Bennett Amendment, contains those very same defenses.11 The opening sentence of § 703(h) protects differentials and compensation based on seniority, merit, or quantity or quality of production. These are three of the four EPA defenses. The fourth EPA defense, "a factor other than sex," is already implicit in Title VII because the statute's prohibition of sex discrimination applies only if there is discrimination on the basis of sex. Under the Court's interpretation, the Bennett Amendment, the second sentence of § 703(h), is mere surplusage. United States v. Menasche, 348 U.S. 528, 538-539, 75 S.Ct. 513, 519-520, 99 L.Ed. 615 (1955) ("It is our duty 'to give effect, if possible, to every clause and word of a statute,' Montclair v. Ramsdell, 107 U.S. 147, 152 [2 S.Ct. 391, 394, 27 L.Ed. 431], rather than emasculate an entire section").12 The Court's answer to this argument is curious. It suggests that repetition ensures that the provisions would be consistently interpreted by the courts. Ante, at 170. But that answer only speaks to the purpose for incorporating the defenses in each statute, not for stating the defenses twice in the same statute. Courts are not quite as dense as the majority assumes.
96
In sum, Title VII and the Equal Pay Act, read together, provide a balanced approach to resolving sex-based wage discrimination claims. Title VII guarantees that qualified female employees will have access to all jobs, and the Equal Pay Act assures that men and women performing the same work will be paid equally. Congress intended to remedy wage discrimination through the Equal Pay Act standards, whether suit is brought under that statute or under Title VII. What emerges is that Title VII would have been construed in pari materia even without the Bennett Amendment, and that the Amendment serves simply to insure that the equal work standard would be the standard by which all wage compensation claims would be judged.
III
97
Perhaps recognizing that there is virtually no support for its position in the legislative history, the Court rests its holding on its belief that any other holding would be unacceptable public policy. Ante, at 178-180. It argues that there must be a remedy for wage discrimination beyond that provided for in the Equal Pay Act. Quite apart from the fact that that is an issue properly left to Congress and not the Court, the Court is wrong even as a policy matter. The Court's parade of horribles that would occur absent a distinct Title VII remedy simply does not support the result it reaches.
98
First, the Court contends that a separate Title VII remedy is necessary to remedy the situation where an employer admits to a female worker, hired for a unique position, that her compensation would have been higher had she been male. Ante, at 178-179. Stated differently, the Court insists that an employer could isolate a predominantly female job category and arbitrarily cut its wages because no men currently perform equal or substantially equal work. But a Title VII remedy is unnecessary in these cases because an Equal Pay Act remedy is available. Under the Equal Pay Act, it is not necessary that every Equal Pay Act violation be established through proof that members of the opposite sex are currently performing equal work for greater pay. However, unlikely such an admission might be in the bullpen of litigation, an employer's statement that "if my female employees performed a particular job were males, I would pay them more simply because they are males" would be admissible in a suit under that Act. Overt discrimination does not go unremedied by the Equal Pay Act. See Bourque v. Powell Elec- trical Manufacturing Co., 617 F.2d 61 (CA5 1980); Peltier v. City of Fargo, 533 F.2d 374 (CA8 1976); International Union of Electrical Workers v. Westinghouse Electric Corp., 631 F.2d 1094, 1108, n. 2 (CA3 1980) (Van Dusen, J., dissenting). In addition, insofar as hiring or placement discrimination caused the isolated job category, Title VII already provides numerous remedies (such as backpay, transfer, and constructive seniority) without resort to job comparisons. In short, if women are limited to low paying jobs against their will, they have adequate remedies under Title VII for denial of job opportunities even under what I believe is the correct construction of the Bennett Amendment.
99
The Court next contends that absent a Title VII remedy, women who work for employers exempted from coverage of the Equal Pay Act would be wholly without a remedy for wage discrimination. Ante, at 179-180. The Court misapprehends petitioners' argument. As Senator Clark explained in his memorandum, see supra, at 191-192, Congress sought to incorporate into Title VII the substantive standard of the Equal Pay Act—the "equal work" standard—not the employee coverage provisions. See supra, at 194-195. Thus, to say that the "equal pay for equal work" standard is incorporated into Title VII does not mean that employees are precluded from bringing compensation discrimination claims under Title VII. It means only that if employees choose to proceed under Title VII, they must show that they have been deprived of "equal pay for equal work."
100
There is of course a situation in which petitioners' position would deny women a remedy for claims of sex-based wage discrimination. A remedy would not be available where a lower paying job held primarily by women is "comparable," but not substantially equal to, a higher paying job performed by men. That is, plaintiffs would be foreclosed from showing that they received unequal pay for work of "comparable worth" or that dissimilar jobs are of "equal worth." The short, and best, answer to that contention is that Congress in 1963 explicitly chose not to provide a remedy in such cases. And contrary to the suggestion of the Court, it is by no means clear that Title VII was enacted to remedy all forms of alleged discrimination. We recently emphasized for example, that "Title VII could not have been enacted into law without substantial support from legislators in both Houses who traditionally resisted federal regulation of private business. Those legislators demanded as a price for their support that 'management prerogatives, and union freedoms . . . be left undisturbed to the greatest extent possible.' " Steelworkers v. Weber, 443 U.S. 193, 206, 99 S.Ct. 2721, 2729, 61 L.Ed.2d 480 (1979). See Mohasco Corp. v. Silver, 447 U.S. 807, 820, 65 L.Ed.2d 532 (1980) (a 90-day statute of limitations may have "represented a necessary sacrifice of the rights of some victims of discrimination in order that a civil rights bill could be enacted"). Congress balanced the need for a remedy for wage discrimination against its desire to avoid the burdens associated with governmental intervention into wage structures. The Equal Pay Act's "equal pay for equal work" formula reflects the outcome of this legislative balancing. In construing Title VII, therefore, the courts cannot be indifferent to this sort of political compromise.
IV
101
Even though today's opinion reaches what I believe to be the wrong result, its narrow holding is perhaps its saving feature. The opinion does not endorse to so-called "comparable worth" theory: though the Court does not indicate how a plaintiff might establish a prima facie case under Title VII, the Court does suggest that allegations of unequal pay for unequal, but comparable, work will not state a claim on which relief may be granted. The Court, for example, repeatedly emphasizes that this is not a case where plaintiffs ask the court to compare the value of dissimilar jobs or to quantify the effect of sex discrimination on wage rates. Ante, at 166, 180-181. Indeed, the Court relates, without criticism, respondents' contention that Lemons v. City and County of- Denver, 620 F.2d 228 (CA10), cert. denied, 449 U.S. 888, 101 S.Ct. 244, 66 L.Ed.2d 114 (1980), is distinguishable. Ante, at 166, n. 7. There the court found that Title VII did not provide a remedy to nurses who sought increased compensation based on a comparison of their jobs to dissimilar jobs of "comparable" value in the community. See also Christensen v. Iowa, 563 F.2d 353 (CA8 1977) (no prima facie case under Title VII when plaintiffs, women clerical employees of a university, sought to compare their wages to the employees in the physical plant).
102
Given that implied repeals of legislation are disfavored, TVA v. Hill, 437 U.S. 153, 189, 98 S.Ct. 2279, 2299, 57 L.Ed.2d 117 (1978), we should not be surprised that the Court disassociates itself from the entire notion of "comparable worth." In enacting the Equal Pay Act in 1963, Congress specifically prohibited the courts from comparing the wage rates of dissimilar jobs: there can only be a comparison of wage rates where jobs are "equal or substantially equal." Because the legislative history of Title VII does not reveal an intent to overrule that determination, the courts should strive to harmonize the intent of Congress in enacting the Equal Pay Act with its intent in enacting Title VII. Where, as here, the policy of prior legislation is clearly expressed, the Court should not "transfuse the successor statute with a gloss of its own choosing." De Sylva v. Ballentine, 351 U.S. 570, 579, 76 S.Ct. 974, 979, 100 L.Ed.2d 1415 (1956).
103
Because there are no logical underpinnings to the Court's opinion, all we may conclude is that even absent a showing of equal work there is a cause of action under Title VII where there is direct evidence that an employer has intentionally depressed a woman's salary because she is a woman. The decision today does not approve a cause of action based on a comparison of the wage rates of dissimilar jobs.
104
For the foregoing reasons, however, I believe that even that narrow holding cannot be supported by the legislative history of the Equal Pay Act and Title VII. This is simply a case where the Court has superimposed upon Title VII a "gloss of its own choosing."
1
Prior to February 1, 1973, the female guards were paid between $476 and $606 per month, while the male guards were paid between $668 and $853. Effective February 1, 1973, the female guards were paid between $525 and $668, while salaries for male guards ranged from $701 to $940. 20 FEP Cases 788, 789 (Or.1976).
2
Oregon requires that female inmates be guarded solely by women, Or.Rev.Stat. §§ 137.350, 137.360 (1979), and the District Court opinion indicates that women had not been employed to guard male prisoners. 20 FEP Cases, at 789, 792 nn. 8, 9. For purposes of this litigation, respondents concede that gender is a bona fide occupational qualification for some of the female guard positions. See 42 U.S.C. § 2000e-2(e)(1); Dothard v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977).
3
Respondents could not sue under the Equal Pay Act because the Equal Pay Act did not apply to municipal employees until passage of the Fair Labor Standards Amendments of 1974, 88 Stat. 55, 58-62. Title VII has applied to such employees since passage of the Equal Employment Opportunity Act of 1972, § 2(1), 86 Stat. 103.
4
Respondents also contended that they were discharged and not rehired in retaliation for their demands for equal pay. Respondent Vander Zanden also contended that she was denied medical leave in retaliation for such demands. The District Court rejected those contentions, and the Court of Appeals affirmed. Those claims are not before this Court.
5
See infra, at 168.
6
The concept of "comparable worth" has been the subject of much scholarly debate, as to both its elements and its merits as a legal or economic principle. See e. g., E. Livernash, Comparable Worth: Issues and Alternatives (1980); Blumrosen, Wage Discrimination, Job Segregation, and Title VII of the Civil Rights Act of 1964, 12 U.Mich.J.L.Ref. 397 (1979); Nelson, Opton, & Wilson, Wage Discrimination and the "Comparable Worth" Theory in Perspective, 13 U.Mich.J.L.Ref. 231 (1980). The Equal Employment Opportunity Commission has conducted hearings on the question, see BNA Daily Labor Report Nos. 83-85 (Apr. 28-30, 1980), and has commissioned a study of job evaluation systems, see D. Treiman, Job Evaluation; An Analytic Review (1979) (interim report).
7
Respondents thus distinguish Lemons v. City and County of Denver, 620 F.2d 228 (CA10), cert. denied, 449 U.S. 888, 101 S.Ct. 244, 66 L.Ed.2d 114 (1980), on the ground that the plaintiffs, nurses employed by a public hospital, sought increased compensation on the basis of a comparison with compensation paid to employees of comparable value—other than nurses—in the community, without direct proof of intentional discrimination.
8
We are not called upon in this case to decide whether respondents have stated a prima facie case of sex discrimination under Title VII, cf. Christensen v. Iowa, 563 F.2d 353 (CA8 1977), or to lay down standards for the further conduct of this litigation. The sole issue we decide is whether respondents' failure to satisfy the equal work standard of the Equal Pay Act in itself precludes their proceeding under Title VII.
9
Similarly, Webster's Third New International Dictionary 147 (1976) states that the word "authorize" "indicates endowing formally with a power or right to act, usu. with discretionary privileges." (Examples deleted.)
10
Section 703(h), as set forth in 42 U.S.C. § 2000e-2(h), provides in relevant part:
"Notwithstanding any other provision of this subchapter, 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, or a system which measures earnings by quantity or quality of production . . . provided that such differences are not the result of an intention to discriminate because of . . . sex . . . ." (Emphasis added.)
11
The legislative history of the Equal Pay Act was examined by this Court in Corning Glass Works v. Brennan, 417 U.S. 188, 198-201, 94 S.Ct. 2223, 2229-2231, 41 L.Ed.2d 1 (1974). The Court observed that earlier versions of the Equal Pay bill were amended to define equal work and to add the fourth affirmative defense because of a concern that bona fide job-evaluation systems used by American businesses would otherwise be disrupted. Id., at 199-201, 94 S.Ct., at 2230-2231. This concern is evident in the remarks of many legislators. Representative Griffin, for example, explained that the fourth affirmative defense is a "broad principle," which "makes clear and explicitly states that a differential based on any factor or factors other than sex would not violate this legislation." 109 Cong.Rec. 9203 (1963). See also id., at 9196 (remarks of Rep. Frelinghuysen); id., at 9197-9198 (remarks of Rep. Griffin); ibid., (remarks of Rep. Thompson); id., at 9198 (remarks of Rep. Goodell); id., at 9202 (remarks of Rep. Kelly); id., at 9209 (remarks of Rep. Goodell); id., at 9217 (remarks of Reps. Pucinski and Thompson).
12
To answer certain objections raised by Senators concerning the House version of the Civil Rights bill, Senator Clark, principal Senate spokesman for Title VII, drafted a memorandum, printed in the Congressional Record. One such objection and answer concerned the relation between Title VII and the Equal Pay Act:
"Objection: The sex antidiscrimination provisions of the bill duplicate the coverage of the Equal Pay Act of 1963. But more than this, they extend far beyond the scope and coverage of the Equal Pay Act. They do not include the limitations in that act with respect to equal work on jobs requiring equal skills in the same establishments, and thus, cut across different jobs.
"Answer: The Equal Pay Act is a part of the wage hour law, with different coverage and with numerous exemptions unlike title VII. Furthermore, under title VII, jobs can no longer be classified as to sex, except where there is a rational basis for discrimination on the ground of bona fide occupational qualification. The standards in the Equal Pay Act for determining discrimination as to wages, of course, are applicable to the comparable situation under title VII." 110 Cong.Rec. 7217 (1964).
This memorandum constitutes the only formal discussion of the relation between the statutes prior to consideration of the Bennett Amendment. It need not concern us here, because it relates to Title VII before it was amended by the Bennett Amendment. The memorandum obviously has no bearing on the meaning of the terms of the Bennett Amendment itself.
13
The dissent finds it "obvious" that the "principal way" the Equal Pay Act might have been "nullified" by enactment of Title VII is that the "equal pay for equal work standard" would not apply under Title VII. Post, at 193. There is, however, no support for this conclusion in the legislative history: not one Senator or Congressman discussing the Bennett Amendment during the debates over Title VII so much as mentioned the "equal pay for equal work" standard. Rather, Senator Bennett's expressed concern was for preserving the "programs" that had "been established for the effective administration" of the Equal Pay Act. 110 Cong.Rec. 13647 (1964). This suggests that the focus of congressional concern was on administrative interpretation and enforcement procedures, rather than on the "equal work" limitation.
14
The argument in the dissent that under our interpretation, the Equal Pay Act would be impliedly repealed and rendered a nullity, post, at 193, is mistaken. Not only might the substantive provisions of the Equal Pay Act's affirmative defenses affect the outcome of some Title VII sex-based wage discrimination cases, see supra, at 170-171, but the procedural characteristics of the Equal Pay Act also remain significant. For example, the statute of limitations for backpay relief is more generous under the Equal Pay Act than under Title VII, and the Equal Pay Act, unlike Title VII, has no requirement of filing administrative complaints and awaiting administrative conciliation efforts. Given these advantages, many plaintiffs will prefer to sue under the Equal Pay Act rather than Title VII. See B. Babcock, A. Freedman, E. Norton, & S. Ross, Sex Discrimination and the Law 507 (1975).
15
In an exchange during the debate on Title VII, Senator Randolph asked Senator Humphrey whether certain differences in treatment in industrial retirement plans, including earlier retirement options for women, would be permissible. Senator Humphrey responded: "Yes. That point was made unmistakably clear earlier today by the adoption of the Bennett amendment; so there can be no doubt about it." 110 Cong.Rec. 13663-13664 (1964). Apparently, Senator Humphrey believed that the discriminatory provisions to which Senator Randolph referred were authorized by the Equal Pay Act. His answer does not reveal whether he believed such plans to fall within one of the affirmative defenses of the Act, or whether they simply did not violate the Act.
16
The parties also direct our attention to several comments by Members and Committees of Congress made after passage of Title VII. See 111 Cong.Rec. 13359 (1965) (statement by Senator Bennett that "compensation on account of sex does not violate title VII unless it also violates the Equal Pay Act"); id., at 18263 (statement by Senator Clark criticizing Senator Bennett's attempt to create post hoc legislative history and adding his own interpretation); S.Rep. No. 95-331, p. 7 (1977) (stating that the Bennett Amendment authorizes only those practices within the four affirmative defenses of the Equal Pay Act).
We are normally hesitant to attach much weight to comments made after the passage of legislation. See Teamsters v. United States, 431 U.S. 324, 354, n. 39, 97 S.Ct. 1843, 1864, n. 39, 52 L.Ed.2d 396 (1977). In view of the contradictory nature of these cited statements, we give them no weight at all.
17
See General Counsel's opinion of December 29, 1965, App. to Brief for Petitioners 7a; General Counsel's opinion of May 4, 1966, id., at 11a-13a; Commissioner's opinion of July 23, 1966, id., at 16a, BNA Daily Labor Report No. 171, pp. A-3 to A-4 (Sept. 1, 1966); Acting General Counsel's Memorandum of June 6, 1967, App. to Brief for Petitioners 21a-22a.
18
See also Dec. No. 6-6-5762, CCH EEOC Decisions (1973) ¶ 6001, pp. 4008-4009, n. 22 (1968); Dec. No. 71-2629, CCH EEOC Decisions (1973) ¶ 6300, pp. 4538-4539 (1971).
19
The dissent attempts to minimize the significance of the Title VII remedy in these cases on the ground that the Equal Pay Act already provides an action for sex-biased wage discrimination by women who hold jobs not currently held by men. Post, at 201-202. But the dissent's position would still leave remediless all victims of discrimination who hold jobs never held by men.
20
See Treiman, supra n. 6, at 35-36 (interim report to the EEOC); Fisher, Multiple Regression in Legal Proceedings, 80 Colum.L.Rev. 702, 721-725 (1980); Nelson, Opton, & Wilson, supra n. 6, at 278-288; Schwab, Job Evaluation and Pay Setting: Concepts and Practices, in Livernash, supra n. 6, at 49, 52-70.
1
Comparable work was not a new idea. During World War II the regulations of the National War Labor Board (NWLB) required equal pay for "comparable work." Under these regulations, the Board made job evaluations to determine whether pay inequities existed within a plant between similar jobs. See General Electric Co., 28 War Lab.Rep. 666 (1945). As a result, in every Congress since 1945 bills had been introduced mandating equal pay for "comparable work." In substituting the term "equal work" for "comparable work," Congress clearly rejected the approach taken by the NWLB.
2
Statements made by the sponsors of legislation "deserv[e] to be accorded substantial weight in interpreting the statute." FEA v. Algonquin SNG, Inc., 426 U.S. 548, 564, 96 S.Ct. 2295, 2304, 49 L.Ed.2d 49 (1976); Schwegmann Brothers v. Calvert Distillers Corp., 341 U.S. 384, 394, 71 S.Ct. 745, 750, 95 L.Ed. 1035 (1951).
3
Representative Goodell rejected any type of wage comparisons between men and women as the basis for relief. He stated: "We do not have in mind the Secretary of Labor's going into an establishment and saying, 'Look you are paying the women here $1.75 and the men $2.10. Come on in here, Mr. Employer, and you prove that you are not discriminating on the basis of sex.' That would be just the opposite of what we are doing." 109 Cong.Rec. 9208 (1963). Similarly, Representative Griffin noted that the "equal work" standard meant that the jobs of inspector and assembler could not be compared, nor could inspectors who inspect complicated parts be compared to inspectors making simple cursory inspections. Id., at 9197. Representative Thompson, one of the original sponsors of the equal pay legislation, agreed with Representative Griffin's examples. Id., at 9198.
4
Indeed, Title VII was originally intended to protect the rights of Negroes. On the final day of consideration by the entire House, Representative Smith added an amendment to prohibit sex discrimination. It has been speculated that the amendment was added as an attempt to thwart passage of Title VII. The amendment was passed by the House that same day, and the entire bill was approved two days later and sent to the Senate without any consideration of the effect of the amendment on the Equal Pay Act. The attenuated history of the sex amendment to Title VII makes it difficult to believe that Congress thereby intended to wholly abandon the carefully crafted equal work standard of the Equal Pay Act.
5
The Court makes far too much of the fact that Senator Bennett's Amendment was designated a "technical amendment." It is apparently the Court's belief that a "technical amendment" is an insignificant one. The Amendment, however, was so designated simply because (1) the Amendment confirmed the general intention of the Senate evinced by Senator Clark's earlier explanation of Title VII, and (2) the time for debate had been limited by the invocation of cloture, leaving a "technical amendment" as the most expeditious way of introducing an amendment. Senator Bennett later explained all of this. 111 Cong.Rec. 13359 (1965).
6
There is undoubtedly some danger in relying on subsequent legislative history. But that does not mean that such subsequent legislative history is wholly irrelevant, particularly where, as here, the sponsor of the legislation makes a clarifying statement which is not inconsistent with the prior ambiguous legislative history. See Galvan v. Press, 347 U.S. 522, 526-527, 74 S.Ct. 737, 740, 98 L.Ed. 911 (1954) (Court relied on a 1951 memorandum by Senator McCarran in interpreting the meaning of a 1950 statute he sponsored).
The Court suggests Senator Bennett's 1965 comments should be discounted because Senator Clark criticized them. Ante, at 176, n. 16. Senator Clark did indeed criticize Senator Bennett, but only because Senator Clark read Senator Bennett's explanation as suggesting that Title VII protection would not be available to those employees not within the Equal Pay Act's coverage. Senator Clark's view was that employees not covered by the Equal Pay Act could still bring Title VII claims. He did not dispute, however, the proposition that the "equal work" standard of the Equal Pay Act was incorporated into Title VII claims. Quite the contrary, Senator Clark placed into the record a letter from the Chairman of the National Committee for Equal Pay which stated:
"Our best understanding of the implications of the [Bennett Amendment] at the time it was adopted was that its intent and effect was to make sure that equal pay would be applied and interpreted under the Civil Rights Act in the same way as under the earlier statute, the Equal Pay Act. That is, the Equal Pay Act standards, requiring equal work . . . would also be applied under the Civil Rights Act." 111 Cong.Rec. 18263 (1965) (emphasis supplied).
Senator Clark then commended to the EEOC the reasoning set forth in the letter. Ibid.
7
In light of the foregoing, the Court's statement that no Senator or Congressman mentioned the "equal work" standard is mystifying. Ante, at 174, n. 13. Senator Clark, for example, discussed it twice. See supra, at 191-192; n. 6, supra. Indeed, it is the Court's theory—that only the affirmative defenses are incorporated into Title VII—that is not "so much as mentioned" by any "Senator or Congressman." See infra, at 198-199.
8
Other opinion letters issued by the EEOC General Counsel during the 1960's confirmed that Title VII would not be violated unless equal work was performed. The General Counsel's opinion of May 4, 1966, explains:
"It follows that an employer covered by Title VII may not pay a male less than the California minimum wage while paying the statutory rate to a woman for the same job. . . . [W ]hatever the general rule may be under Title VII, the Bennett Amendment compels us to apply the same test for differences in compensation based on sex. 29 CFR 1604.7." App. to Brief for Petitioners 11a-13a.
The General Counsel's opinion of February 28, 1966, stresses that "where an employer pays a certain wage to employees of one sex in order to comply with such a law, he must also pay the same rate to employees of the opposite sex for equal work [under Title VII]." Id., at 9a-10a. The Commissioner's opinion of July 23, 1966, states that "[a]ssuming that male and female laborers performed the same functions . . . a wage differential would violate [Title VII]." Id., at 16a.
And the Acting General Counsel's Memorandum of June 6, 1967, made clear that the Equal Pay Act's equal work standard, i. e., equal skill, effort, responsibility, and working conditions, as well as the Equal Pay Act's affirmative defenses, i. e., seniority systems, merit systems, etc., were incorporated by the phrase "authorize" in the Bennett Amendment. As he interpreted the word "authorize":
"Differentiations which are authorized under said section [703(h)] are differentiations on the basis of skill, effort, responsibility and working conditions, and differentiations related to a seniority system, a merit system, a system which measures earnings by quantity or quality of production or a differential based on any other factor than sex.
"It is the interpretation of these provisions that requires harmonization between Title VII and the Equal Pay [Act] because these are the provisions which, within the meaning of § 70[3](h), 'authorize' differentiations." Id., at 21a-22a. (Emphasis supplied.)
9
The EEOC has since changed its mind as to the relationship between Title VII and the Equal Pay Act. But this Court has recognized that "an EEOC guideline is not entitled to great weight where . . . it varies from prior EEOC policy and no new legislative history has been introduced in support of the change". Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 76, n. 11, 97 S.Ct. 2264, 2272, n. 11, 53 L.Ed.2d 113 (1977). See General Electric v. Gilbert, 429 U.S. 125, 142, 97 S.Ct. 401, 411, 50 L.Ed.2d 343 (1976) (Court discounted weight to be given to the 1972 Title VII regulations addressing pregnancy benefits because they were inconsistent with the 1965 regulations).
10
In reaching this conclusion, the Court relies far too heavily on a definition of the word "authorize." Rather than "make a fortress out of the dictionary," Cabell v. Markham, 148 F.2d 737, 739 (CA2), aff'd, 326 U.S. 404, 66 S.Ct. 193, 90 L.Ed. 165 (1945), the Court should instead attempt to implement the legislative intent of Congress. Even if dictionary definitions were to be our guide, the word "authorized" has been defined to mean exactly what petitioners contend. Black's Law Dictionary 169 (4th ed. 1968) defines "authorized" to mean "to permit a thing to be done in the future." Accordingly, the language of the Bennett Amendment suggests that those differentiations which are authorized under the Equal Pay Act—and thus Title VII—are those based on "skill, effort, responsibility and working conditions" and those related to the four affirmative defenses. See n. 7, supra.
Respondents also rely on Senator Dirksen's brief reference to "exceptions to the basic Act . . . ." That statement is highly ambiguous and is too thin a reed to support their conclusion that Congress intended to incorporate only the Equal Pay Act's affirmative defenses. First, as even the Court concedes, ante, at 175, the reference to the "exceptions" probably refers to the exemptions from coverage of the Fair Labor Standards Act, not to the Equal Pay Act's four defenses. Second, it was Senator Dirksen who first raised the objection, answered by Senator Clark, that Title VII would reject the equal work requirement. And third, in 1965 Senator Dirksen explicitly agreed with Senator Bennett's interpretation of the Amendment. See supra, at 194. It thus is highly unlikely that Senator Dirksen would have been interested in preserving either the exceptions or the affirmative defenses, but not the "equal work" standard.
11
Under the Court's analysis, § 703(h) consists of two redundant sentences:
"[1] Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer to apply different standards of compensation . . . pursuant to a bona fide seniority or merit system, or a system which measures earnings by quantity or quality of production or to employees who work in different locations. . . . [2] [The Bennett Amendment] It shall not be an unlawful employment practice under this subchapter for any employer to differentiate upon the basis of sex in determining the amount of the wages or compensation paid . . . [except pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex]."
12
In 1965, Senator Bennett himself made this point. He stressed that "[the language setting out the defenses] is merely clarifying language similar to that which was already in section 703(h). If the Bennett amendment was simply intended to incorporate by reference these exceptions into the subsection (h), the amendment would have no substantive effect." 111 Cong.Rec. 13359 (1965).
| 12
|
452 U.S. 205
101 S.Ct. 2266
68 L.Ed.2d 783
ANDERSON BROS. FORD and Ford Motor Credit Company, Petitioners,v.Olga VALENCIA and Miguel Gonzalez.
No. 80-84.
Argued March 23, 1981.
Decided June 8, 1981.
Syllabus
Section 128(a)(10) of the Truth in Lending Act (TILA) provides that in connection with closed-end consumer credit transactions, the creditor must disclose "any security interest held or to be retained or acquired by the creditor in connection with the extension of credit, and a clear identification of the property to which the security interest relates." Regulation Z of the Federal Reserve Board (Board), promulgated pursuant to the Board's authority under the TILA, essentially repeats the statute's disclosure requirement, defines "security interest" and "security" as "any interest in property which secures payment or performance of an obligation," and sets forth a nonexhaustive list of interests included in the terms. In 1977, respondents purchased an automobile from petitioner dealer under a retail installment contract that was assigned to petitioner Ford Motor Credit Co. A provision on the face of the contract disclosed that the seller retained a security interest in the automobile but did not refer to a provision on the back of the contract whereby the buyers, who were required to purchase physical damage insurance on the automobile protecting the interests of both the buyers and the seller, assigned to the seller any unearned insurance premiums that might be returned if the policy were canceled. Before making any payments on the contract or the insurance policy, respondents returned the automobile to the dealer and filed suit in federal court alleging that the contract violated the TILA for failure to disclose on its face that the seller had acquired a "security interest" in unearned insurance premiums, and seeking statutory damages, attorney's fees, and costs. The District Court granted summary judgment for respondents, holding that the assignment of unearned insurance premiums created a "security interest" within the meaning of § 128(a)(10), and the Court of Appeals affirmed.
Held: Such an assignment of unearned insurance premiums does not create a "security interest" that must be disclosed pursuant to the TILA. Pp. 211-223.
(a) In a proposed official staff interpretation, the Board has expressly stated that Regulation Z does not require a creditor to disclose as a security interest its right to receive insurance proceeds or unearned premiums from a property insurance policy. Also the Board's revised Regulation Z, which was issued pursuant to the Truth in Lending Simplification and Reform Act of 1980, defines "security interest" as not including "incidental interests" such as interests in insurance proceeds or premium rebates. This definition does not purport to change the original Regulation Z with respect to whether an incidental interest in unearned insurance premiums must be disclosed, and thus is persuasive authority as to whether such an interest should be disclosed as a "security interest" under the unrevised regulation. Neither the original TILA nor the 1980 Act defines the term "security interest," and the legislative history of the 1980 Act fully supports the Board's revised regulation and its proposed interpretation of the unrevised regulation. Pp. 211-219.
(b) Although neither the 1980 Act's legislative history nor the Board's construction of the term "security interest" conclusively establishes the meaning of these words in the TILA, the Board's regulation implementing this legislation, as well as its interpretation of its own regulation, should be accepted by the courts since they are not repugnant to any provision in the TILA. Cf. Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 100 S.Ct. 790, 63 L.Ed.2d 22. The Board's position is supported by the legislative history of both the TILA and the 1980 Act, and is a permissible interpretation of the term "security interest" as used in the TILA. Pp. 219-223.
617 F.2d 1278, reversed and remanded.
Aaron J. Kramer, Chicago, Ill., for petitioners.
Alan A. Alop, Countryside, Ill., for respondents.
Justice WHITE delivered the opinion of the Court.
1
The issue presented in this case is whether an assignment of certain unearned insurance premiums created a "security interest" that should have been disclosed pursuant to the Truth in Lending Act (TILA), 82 Stat. 146, as amended, 15 U.S.C. § 1601 et seq.1
2
* In September, 1977, respondents purchased an automobile from petitioner Anderson Bros. Ford. They signed the dealer's standard automobile retail installment contract. This contract was assigned for value to petitioner Ford Motor Credit Co. A provision on the face of the contract disclosed that the seller retained a security interest in the automobile.2 A provision on the back of the contract stated that the buyer was required to purchase and maintain physical damage insurance on the automobile, "protecting the interests of Buyer and Seller," and further stated:
3
"Buyer hereby assigns to Seller any monies payable under such insurance, by whomever obtained, including returned or unearned premiums, and Seller hereby is authorized on behalf of both Buyer and Seller to receive or collect same, to endorse checks or drafts in payment thereof, to cancel such insurance or to release or settle any claim with respect thereto. The proceeds from such insurance, by whomever obtained, shall be applied toward replacement of the Property or payment of the indebtedness hereunder in the sole discretion of Seller." If the insurance policy on the automobile were canceled for any reason prior to the expiration of the term of the policy, this provision would permit the creditor to apply any unearned insurance premiums toward payment of the remaining debt.3
4
In October, 1977, before making any payments on the installment contract or on the insurance policy, respondents returned the automobile to Anderson Bros. Ford. They subsequently brought this action in federal court,4 alleging, inter alia, that the sales contract violated the TILA because it did not disclose on the face of the contract that the seller had acquired a "security interest" in unearned insurance premiums.5 This claim was based on § 128(a)(10) of the TILA, which provides in pertinent part:
5
"In connection with each consumer credit sale not under an open end credit plan, the creditor shall disclose each of the following items which is applicable:
6
* * * * *
7
"A description of any security interest held or to be retained or acquired by the creditor in connection with the extension of credit, and a clear identification of the property to which the security interest relates." 82 Stat. 155, 15 U.S.C. § 1638(a)(10).
8
This disclosure requirement is essentially repeated in § 226.8(b)(5) of Regulation Z, a Federal Reserve Board regulation promulgated pursuant to the Board's authority under § 105 of the TILA.6 Under the regulation, a creditor must disclose:
9
"A description or identification of the type of any security interest held or to be retained or acquired by the creditor in connection with the extension of credit, and a clear identification of the property to which the security interest relates . . . ." 12 CFR § 226.8(b)(5) (1980).
10
Respondents sought statutory damages, attorney's fees, and costs.7
11
The District Court granted summary judgment for respondents, holding that an assignment of unearned insurance premiums creates a "security interest" within the meaning of § 128(a)(10). App. 33-35. The Court of Appeals for the Seventh Circuit affirmed. 617 F.2d 1278 (1980). Recognizing that the TILA does not define the term "security interest," the Court of Appeals relied on the definition contained in Regulation Z:
12
"Security interest' and 'security' mean any interest in property which secures payment or performance of an obligation. The terms include, but are not limited to, security interests under the Uniform Commercial Code, real property mortgages, deeds of trust, and other consensual or confessed liens whether or not recorded, mechanic's, materialmen's, artisan's, and other similar liens, vendor's liens in both real and personal property, the interest of a seller in a contract for the sale of real property, any lien on property arising by operation of law, and any interest in a lease when used to secure payment or performance of an obligation." 12 CFR § 226.2(gg) (1980).
13
The Court of Appeals concluded that the assignment of unearned insurance premiums created an "interest in property which secure[d] payment or performance of an obligation" within the meaning of Regulation Z, and thus created a "security interest" that must be disclosed under § 128(a)(10). The Court of Appeals accordingly affirmed the judgment below.8
14
We granted certiorari to settle whether such an assignment of unearned insurance premiums must be disclosed as a "security interest" under the TILA.9 449 U.S. 981, 101 S.Ct. 395, 66 L.Ed.2d 242 (1980). We reverse.
II
15
Although the Court of Appeals' construction of the Act and of Regulation Z is shared by three of the four other Courts of Appeals that have ruled on the question,10 this view, which is essentially a claim that the plain language of the statute and the regulation requires the result reached by the court below, has recently been challenged on several fronts. First, based in part on the legislative history of the 1980 amendments to the TILA, see infra, at 218-219, the Court of Appeals for the Tenth Circuit has concluded that the meaning of the term "security interest" as used in the TILA is not so plain and has held that the creditor's interest in unearned insurance premiums need not be disclosed as a security interest under either the statute or Regulation Z. James v. Ford Motor Credit Co., 638 F.2d 147 (1980).
16
Second, in September 1980, the Board, the agency that issued Regulation Z, published for comment Official Staff Interpretation FC-0173, regarding security interest disclosures in closed-end consumer credit transactions. 45 Fed.Reg. 63295. Although the staff recognized that several courts held a contrary view, its clearly expressed position was that neither § 226.2(gg) nor § 226.8(b)(5) requires a creditor to disclose as a security interest its right to receive insurance proceeds or unearned premiums from a property insurance policy:
17
"The staff believes that a creditor is not required by [§ 226.8(b)(5)] to disclose its right to receive insurance proceeds or unearned insurance premiums nor to disclose that it is named as loss payee or beneficiary on an insurance policy. Truth in Lending disclosures are meant to provide useful information to consumers to enhance credit shopping. Consumers do need to know that they risk the loss of certain property if they default. The disclosures under § 226.8(b)(5) inform consumers of which property is subject to that risk at the time the credit decision is being made. We believe that information regarding the creditor's interest in insurance proceeds and unearned premiums would not be used in comparison shopping. Although a technical reading of the security interest definition might cover a creditor's interest in insurance proceeds and unearned premiums, it is our opinion that such incidental interests are not the type of interests meant to be covered by § 226.8(b)(5)." Ibid.
18
This construction of Regulation Z, the staff concluded, "better serves the purpose of the statute and the regulation to convey in a meaningful way information that can be used by consumers in shopping for credit." Ibid.
19
We are aware that after we granted certiorari in this case, the Board deferred final action on FC-0173; but we cannot agree that the staff's views expressed in the proposed ruling are wholly without significance. The comment period on the proposed interpretation expired on October 24, 1980, the proposal has not been withdrawn or revised, and it appears from the Board's public statement that final action was deferred only because it was "inappropriate" to do otherwise in the light of our intervening grant of certiorari. Id., at 84074.
20
We need not, however, rest on FC-0173 for the Board's construction of the statute or of Regulation Z with respect to the scope of the security interest disclosure requirement. On March 31, 1980, the President approved the Truth in Lending Simplification and Reform Act (1980 Act) as Title VI of the Depository Institutions Deregulation and Monetary Control Act of 1980. 94 Stat. 168. The 1980 Act, which will be fully effective on April 1, 1982, will amend the TILA in many respects but will leave substantial portions of the TILA unchanged. It will amend § 128(a)(10) of the TILA to require a creditor to make the following disclosure with respect to any "security interest" acquired by the creditor in a closed-end consumer credit transaction:
21
"Where the credit is secured, a statement that a security interest has been taken in (A) the property which is purchased as part of the credit transaction, or (B) property not purchased as part of the credit transaction identified by item or type." § 614(a)(9), 94 Stat. 179.
22
Like the TILA, however, the 1980 Act does not define the term "security interest."
23
The 1980 Act provides that all implementing regulations must be promulgated at least one year prior to the effective date of the Act and that any creditor may comply with the revised regulations prior to the effective date of the Act. § 625, 94 Stat. 185-186. The Board accordingly revised Regulation Z, effective April 1, 1981, but with compliance being optional until April 1, 1982. 46 Fed.Reg. 20848 (1981). Section 226.18(m) of revised Regulation Z requires the creditor to disclose in connection with closed-end consumer credit transactions
24
"[t]he fact that the creditor has or will acquire a security interest in the property purchased as part of the transaction, or in other property identified by item or type." Id., at 20903.
25
Section 226.2(a)(25) defines the term "security interest" as follows:
26
" 'Security interest' means an interest in property that secures performance of a consumer credit obligation and that is recognized by state or federal law. It does not include incidental interests such as interests in proceeds, accessions, additions, fixtures, insurance proceeds (whether or not the creditor is a loss payee or beneficiary), premium rebates, or interests in after-acquired property. For purposes of disclosure under §§ 226.6 and 226.18, the term does not include an interest that arises solely by operation of law. However, for purposes of the right of rescission under §§ 226.15 and 226.23, the term does include interests that arise solely by operation of law." Id., at 20894.
27
Although the new regulation changes the Board's prior definition of a "security interest" in some respects,11 there is no indication that the definition was being changed with respect to unearned premiums. When the Board issued revised Regulation Z, the Board explained that it distinguishes an incidental interest in unearned insurance premiums from a "security interest" that must be disclosed:
28
"[T]here is a difference between an incidental interest and an interest that is the essence of the transaction. For example, when an automobile is financed, the insurance proceeds are incidental to the primary security interest, the automobile. The creditor's interest in such insurance would not be a security interest under the regulation. On the other hand, when the credit transaction is the financing of an insurance policy, the creditor's interest in that policy is just like a purchase money security interest and would be disclosed as a security interest."12
29
Since this reasoning applies to the TILA as well as to the 1980 Act, we do not understand the Board to have revised Regulation Z with respect to whether an incidental interest in unearned insurance premiums must be disclosed.13 The Board's revised regulation construes the statutory term "security interest" which appears, undefined, in both the TILA and the 1980 Act; it also defines the term "security interest" appearing in the revised regulation. The same term had been used in the original Regulation Z, and it seems to us that the Board's definition of "security interest" in the revised regulation is persuasive authority as to whether an interest in unearned insurance premiums should be disclosed as a "security interest" under the unrevised regulation. As we see it, the term "security interest" as used in both the revised and unrevised versions of Regulation Z does not include an interest in unearned insurance premiums in a transaction such as this.
30
Under the TILA and the 1980 Act, the Board is authorized to prescribe regulations, which "may contain such classifications, differentiations, or other provisions, and may provide for such adjustments and exceptions for any class of transactions, as in the judgment of the Board are necessary or proper" to carry out the purposes of the statute.14 In light of this statutory authority, we should not expressly or by implication invalidate as contrary to the statute the Board's revised regulation concerning disclosure of security interests, which with respect to the disclosure of interests in unearned premiums did not purport to change the original Regulation Z and reiterates the view expressed in FC-0173 that an interest in unearned premiums is not a "security interest" for purposes of the disclosure provision.15
31
The legislative history of the 1980 Act fully supports the Board's revised regulation regarding disclosure of a creditor's interest in unearned insurance premiums and its proposed interpretation of the unrevised regulation. The Report of the Senate Committee on Banking, Housing, and Urban Affairs on the 1980 Act explained:
32
"When a security interest is being taken in property purchased as part of the credit transaction, this section requires a statement that a security interest has been or will be taken in the property purchased. When a security interest is being taken in property not purchased as part of the credit transaction, the Committee intends this provision to require a listing by item or type of the property securing the transaction, but not a listing of related or incidental interests in the property. For example, a loan secured by an automobile (not being purchased with the proceeds of the loan) would require a statement indicating that the loan is secured by an automobile but would not require a listing of incidental or related rights which the creditor may have such as insurance proceeds or unearned insurance premiums, rights arising under, or waived in accord with state law, accessions, accessories, or proceeds." S.Rep.No.96-368, p. 30 (1979), U.S.Code Cong. & Admin.News 1979, 236, 266.16
33
Furthermore, on the floor of the Senate a member of the responsible Committee observed:
34
"Many cases have resulted from the complex security interest disclosure requirements under the law. An illustrative case is Gennuso v. Commercial Bank and Trust Co., 455 F.Supp. 461 (W.D.Pa.1976); 566 F.2d 437 (3rd Cir. 1977), which required the creditor's right in property insurance proceeds and unearned property insurance premiums, to be disclosed as a 'security interest.' Although as presently written the law does not require that result, S. 108 should prevent such ludicrous interpretations by requiring merely a positive indication if a security interest is being taken in the property purchased and if it is in property not being purchased in the transaction, simply a general listing of the type of property without a listing of incidental related interests." 125 Cong.Rec. 9160 (1979).
35
With one exception, not pertinent here, the Committee Chairman, Senator Proxmire, who was the sponsor of the TILA, agreed with these remarks. Id., at 9159, 9972. In light of these indications from the 1980 Act's history, it is unlikely that the courts would invalidate as contrary to the 1980 Act or the TILA either the security interest disclosure provisions with respect to unearned insurance premiums in revised Regulation Z or the interpretation of the unrevised regulation contained in FC-0173.
III
36
Of course, neither the legislative history of the 1980 Act nor the Board's construction of the term "security interest" under either the TILA or the 1980 Act conclusively establishes the meaning of these words in the TILA. But as we so plainly recognized in Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 100 S.Ct. 790, 63 L.Ed.2d 22 (1980), absent some obvious repugnance to the statute, the Board's regulation implementing this legislation should be accepted by the courts, as should the Board's interpretation of its own regulation. We discern no such repugnance with any provision in the TILA.
37
The purpose of the TILA is to promote the "informed use of credit" by consumers. 15 U.S.C. § 1601. See Ford- Motor Credit Co. v. Milhollin, supra, at 559, 568, 100 S.Ct. 790, 794-798, 63 L.Ed.2d 22; Mourning v. Family Publications Service, Inc., 411 U.S. 356, 363-368, 93 S.Ct. 1652, 1657-1660, 36 L.Ed.2d 218 (1973). Congress sought to assure "a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him." 15 U.S.C. § 1601.
38
The TILA was enacted in May 1968. As originally drafted, the House and Senate truth-in-lending bills focused primarily on the cost of credit.17 Neither bill required disclosure of security interests acquired by a creditor in connection with a consumer credit transaction. In January 1968, while the legislation was under consideration in the House, Representative Cahill, who was not a member of the Committee that had reported out the bill, offered several amendments designed "to improve the truth-in-lending provisions with respect to mortgage transactions." 114 Cong.Rec. 1611 (1968). One of the amendments, which was adopted without debate, required the following disclosure in closed-end consumer credit transactions:
39
"[A] description of any security interest held or to be retained or acquired by the creditor in connection with the extension of credit and a clear identification of the property to which the security interest relates." Id., at 1610.18
40
This provision became § 128(a)(10) of the TILA.
41
The Cahill amendments were principally designed to prevent homeowners from being victimized by "vicious secondary mortgage schemes." Id., at 1611. It was explained that "in many cases [a homeowner entering into a consumer credit transaction] is never informed nor aware that his home is being made subject to a mortgage." Ibid. The amendment would require the creditor to disclose that he was acquiring a security interest in the borrower's residence. Insofar as pertinent here, the Cahill amendments were accepted by the Senate and became part of the TILA as finally adopted.19 Despite the focus on the second mortgage problem. Congress did not limit § 128(a)(10) to security interests in real property. The statutory language requires disclosure of "any security interest held or to be retained or acquired by the creditor." It is thus uncontested that § 128(a)(10) requires a creditor to disclose to a consumer purchasing an automobile or other property on credit that the creditor retains a security interest in the property purchased.
42
Unaided by an administrative construction of the TILA and Regulation Z, a court could easily conclude, based on the language of the statute and of Regulation Z, that the interest in unearned insurance premiums acquired by the creditor in this case should be characterized as a "security interest" that must be disclosed. But, in light of the proposed official staff interpretation of Regulation Z, the revised regulation defining a "security interest," and the Board's commentary on the difference between an "incidental interest" in unearned insurance premiums and a "security interest," it is evident that the Board does not consider the creditor's interest in unearned insurance premiums in a transaction such as this one to be a "security interest" that must be disclosed under the TILA. The Board's position is supported by the legislative history of both the TILA and the 1980 Act, and we hold that it is a permissible interpretation of the term "security interest" as used in the TILA.20 Although designed to provide meaningful guidance to consumers in shopping for credit, the TILA as originally drafted did not require disclosure of or otherwise deal with security interests; and the security interest disclosure provision was added to the TILA because of Congress' particular concern about the need to warn consumers of the creditor's acquisition of a particular type of security interest—a second mortgage on the borrower's home. The Board's view that disclosure of a creditor's incidental interest in unearned insurance premiums would not measurably further the TILA's purpose of aiding consumers to shop for credit, and that the term "security interest" as used in the TILA, the 1980 Act, and in Regulation Z should not be construed as including such an interest, is consistent with the underlying purpose of the TILA. This interpretation of the term "security interest" strikes a balance between "meaningful disclosure" and "informational overload."21 As we emphasized in Milhollin, the task of striking the proper balance is "an empirical process that entails investigation into consumer psychology and that presupposes broad experience with credit practices." Administrative agencies are "better suited than [the] courts to engage in such a process." 444 U.S., at 568-569, 100 S.Ct., at 798-799.
43
Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
44
So ordered.
45
Justice STEWART, with whom THE CHIEF JUSTICE, Justice BRENNAN, and Justice MARSHALL join, dissenting.
46
The Court correctly states that the respondents in this case maintain "that the plain language of the statute and the regulation requires the result reached by the court below." Ante, at 211-212. Yet the Court nowhere attempts a direct answer to the respondents' contention. Despite the elementary principle that the starting point in construing a statute is the language of the statute itself, the Court simply ignores the plain language of the TILA and the equally plain language of the only applicable Federal Reserve Board construction of it. Instead, the Court contrives to discover contrary legislative intent in such dubious materials as the legislative history of a subsequent statute which does not cover the transaction at hand, a regulation issued to implement that inapplicable statute, and an unofficial administrative staff interpretation which, by its own express terms, is a mere proposal intended to have no legal effect.1
47
In my opinion, the statutory language at issue here unequivocally supports the decision of the Court of Appeals, and should itself dispose of this case. See United States v. Wiltberger, 5 Wheat. 76, 95-96, 5 L.Ed. 37 (Marshall, C. J.). But even were the Court justified in leaping over the language of Congress in search of a conflicting indication of congressional intent, the secondary authority on which the Court relies does not withstand examination. As a result, the Court does damage to settled principles of administrative law and statutory construction—damage that could extend to issues of far greater moment than the very narrow question under the Truth in Lending Act at issue here.
48
Section 128(a)(10) of the TILA requires the creditor to disclose
49
"[a] description of any security interest held or to be retained or acquired by the creditor in connection with the extension of credit, and a clear identification of the property to which the security interest relates." 15 U.S.C. § 1638(a)(10) (emphasis added).2
50
The word "any" can only mean exactly what it says, and so the sole question is whether the credit company's right to the consumer's unearned insurance premium is a "security interest." The credit contract requires the consumer to buy physical damage insurance "protecting the interests of Buyer and Seller," and grants to the seller any unearned insurance premiums, to be "applied toward replacement of the Property or payment of the indebtedness hereunder in the sole discretion of Seller." If unaided common sense cannot identify the seller's rights under this clause as a "security interest," the language of the applicable Federal Reserve Board definition of "security interest" under the TILA quickly and unmistakably does so:
51
" 'Security interest' and 'security' mean any interest in property which secures payment or performance of an obligation. The terms include, but are not limited to, security interests under the Uniform Commercial Code, real property mortgages, deeds of trust, and other consensual or confessed liens whether or not recorded, mechanic's, materialmen's, artisan's, and other similar liens, vendor's liens in both real and personal property, the interest of a seller in a contract for the sale of real property, any lien on property arising by operation of law, and any interest in a lease when used to secure payment or performance of an obligation." 12 CFR § 226.2(gg) (1980) (emphasis added).
52
Ford's assignment clause clearly meets the Federal Reserve Board definition. First, the assignment clause plainly creates an interest in property. In this case, the annual premium for physical damage insurance was $215, and in other instances it could be considerably higher. The amount of the unearned insurance premium acquired by the creditor will depend on the timing of the cancellation which triggers the creditor's rights under the assignment clause. But except in the rare case in which the repossession of the car precisely coincides with the end of the insurance term, the creditor will be able to recover a refund of some sort, and since repossession might occur right after a new term of insurance begins, the contract essentially represents an interest equal to the value of the premium itself.3
53
Second, the assignment clause clearly "secure[s] payment or performance of an obligation." The contract expressly states that the creditor is to use any refunded premiums for "replacement of the Property or payment of the indebtedness hereunder." Even if Ford is correct in asserting that the purpose of the assignment is to continue the insurance coverage on the car during the life of the loan, see ante, at 208, n. 3, the assignment is still a security interest under Regulation Z, since it will be used to secure performance of the buyer's obligation to maintain insurance coverage.4 The applicable statute and regulation thus both clearly declare the assignment of unearned insurance premiums to be a security interest which must be disclosed on the face of the credit contract.5
54
Virtually ignoring the Federal Reserve Board definition of "security interest" in § 226.2(gg) of Regulation Z—the applicable administrative pronouncement which effectively settles the issue in favor of the respondents—the Court relies instead on an unofficial staff interpretation which, by its own terms, is entitled to no weight whatsoever. In September 1980, the Board released Proposed Official Staff Interpretation FC-0173, 45 Fed.Reg. 63295, asking for comments on a proposed staff opinion that a creditor's right to unearned insurance premiums is not required to be disclosed under the statute. The proposal expressly stated:
55
"(2) The letter is being issued as a proposal, rather than in final form, and interested persons are invited to submit relevant comment.
56
"(3) After comments are considered, this official staff interpretation may be amended, may be withdrawn or may remain unchanged."
57
The Board went on to tell creditors in a November 1980 mailing that "[t]his proposed interpretation may not be relied upon until final action is taken." As the Court correctly notes, the Board has never taken any final action. On December 16, 1980, it deferred further consideration indefinitely.6 The Court's reliance on this proposal therefore directly contravenes the intention of the proposal itself—that it is to have no legal effect.7
58
Whatever the significance of the present case, the Court's approach threatens general damage to important principles of administrative law and statutory interpretation. An administrative agency issues proposals to invoke public comment which the agency can evaluate and assimilate in formulating new regulations. If an agency is to infer from the Court's opinion that its proposals may be ascribed significant or even decisive weight in litigation involving construction of the statute governing the agency, it may take any of three extremely unfortunate courses. First, an agency may decide not to issue proposals at all for fear of binding itself in future action. Second, an agency may rush to issue ill-conceived proposals in the hope of affecting the decisions of courts or the conduct of regulated persons, evading the risks and responsibilities of submitting its proposals to public comment and other rulemaking procedures. Third, an agency may frame its proposals in interrogative, rather than declarative, form, thereby denying itself the benefit of public comments that evaluate or interpret the precise language of a hypothetical final rule. The Court's use of FC-1073 here thus threatens to undermine the very purpose of public comment in rulemaking procedures.8
59
The Court continues its attack on established principles of statutory construction by invoking the Truth in Lending Simplification and Reform Act of 1980 to help it discover the meaning of the TILA, which was enacted 12 years earlier. First, the Court considers the revised sections of Regulation Z issued by the Board to implement the new statute, and in a remarkable ipse dixit, pronounces that the new definition, which excludes such "incidental interests" as liens on insurance premiums, reveals "no indication that the definition was being changed with respect to unearned premiums." Ante, at 215. The new definition is, of course, utterly inconsistent with the earlier definition. The Court then mistakenly declares that the Board explanation for the new definition published in the Federal Register in 1981 "applies to the TILA as well as to the 1980 Act." Ante, at 216.9
60
To compound the error, the Court goes on to examine the legislative history of the 1980 Simplification Act. There is no suggestion that the new statute applies retroactively, and there could not be. Rather, the Court states that the legislative history of the 1980 Act "fully supports the Board's revised regulation . . . and its proposed interpretation of the unrevised regulation." Ante, at 218 (emphasis added). Since the new regulation, issued to implement a new nonretroactive statute, cannot apply to the case at hand, I cannot understand how it is at all relevant in this case that the new regulation is consistent with the new statute.
61
The legislative history of the 1980 Act cited by the Court, ante, at 218-219, proves the perfectly reasonable—and irrelevant proposition that the new Regulation Z properly construes the intent of the 1980 Act in excluding liens on unearned insurance premiums as security interests. But nothing in the Report of the Senate Committee on Banking, Housing, and Urban Affairs suggests any intent to construe the old law applicable to this case. "If the legislative history . . . indicates anything, it is that Congress thought that it was changing the law by changing the language of the Act." United States v. Plesha, 352 U.S. 202, 208, 77 S.Ct. 275, 279, 1 L.Ed.2d 254. Doubtless Congress thought the TILA deficient, but that is why it wrote a new law.
62
The Court also cites a statement by Senator Garn purportedly attributing to the TILA a meaning contrary to its plain language. Ante, at 218-219. But the postenactment pronouncements of individual legislators purporting to construe an earlier statute have little, if any, weight in the judicial construction of the statute. E. g., Quern v. Mandley, 436 U.S. 725, 736, n. 10, 98 S.Ct. 2068, 2075, 56 L.Ed.2d 658. And according any weight to the pronouncements of a single legislator is particularly unjustified when the legislator, like Senator Garn in this case, was not even a Member of Congress when the law was enacted. United States v. Mine Workers, 330 U.S. 258, 281-282, 67 S.Ct. 677, 690, 91 L.Ed. 884.10
63
The Court believes that requiring disclosure of an assignment of unearned insurance premiums on the face of the credit contract would be a gratuitous "informational overload" of no significant benefit to the consumer. Ante, at 223. But when the statute and regulation governing the transaction speak unambiguously to the contrary, any independent judgment about the psychology and economics of consumer credit is not for the Court to make.11
64
I respectfully dissent.
1
The Truth in Lending Act was enacted as Title I of the Consumer Credit Protection Act, 82 Stat. 146.
2
The provision stated:
"Security Interest: Seller shall have a security interest under the Uniform Commercial Code in the Property (described above) and in the proceeds thereof to secure the payment in cash of the Total of Payments and all other amounts due or to become due hereunder."
The "Property" was defined as the automobile.
3
Respondents contend that under the contract provision quoted above, unearned insurance premiums could only be used to replace the automobile or to make payments on the buyer's debt. Petitioners assert that "[u]nder the assignment provision . . . any unearned [insurance] premiums will be used to provide replacement insurance coverage or applied to the debt." Brief for Petitioners 4. The Court of Appeals stated that the unearned premiums "may be used to purchase replacement insurance coverage," citing petitioners' brief on appeal. 617 F.2d 1278, 1281 (CA7 1980). We need not resolve the proper interpretation of this contract provision to decide the issue before us.
4
The TILA authorizes suits against original creditors and their assignees. 15 U.S.C. §§ 1614 and 1640.
5
The TILA does not state that the disclosure required by the statute must be made on the face of the contract. It simply provides:
"Each creditor shall disclose clearly and conspicuously, in accordance with the regulations of the Board, to each person to whom consumer credit is extended, the information required under this part or part D of this subchapter." 15 U.S.C. § 1631(a).
However, the applicable Federal Reserve Board regulations provide:
"All of the [required] disclosures shall be made together on either:
"(1) The note or other instrument evidencing the obligation on the same side of the page and above the place for the customer's signature; or
"(2) One side of a separate statement which identifies the transaction." 12 CFR § 226.8(a) (1980).
See also 12 CFR § 226.8(b)(5) (1980). Petitioners do not challenge the validity or applicability of this regulation.
6
Section 105 of the TILA, as set forth in 15 U.S.C. § 1604, provides:
"The Board shall prescribe regulations to carry out the purposes of this subchapter. These regulations may contain such classifications, differentiations, or other provisions, and may provide for such adjustments and exceptions for any class of transactions, as in the judgment of the Board are necessary or proper to effectuate the purposes of this subchapter, to prevent circumvention or evasion thereof, or to facilitate compliance therewith."
7
A consumer who files an individual action against a creditor for failure to make the disclosures required by the TILA may recover twice the amount of the finance charge, with a minimum recovery of $100 and a maximum recovery of $1,000, or may recover any actual damages sustained as a result of the failure to disclose. 15 U.S.C. § 1640(a). Respondents did not contend that they had suffered any actual damages as a result of the alleged TILA violation.
8
Two judges filed separate concurring opinions, joining in the opinion for the panel but expressing concern that by requiring the prominent disclosure of an "incidental" security interest, the court was increasing the complexity of the disclosures required by the TILA without furthering the purposes of the statute.
Judge Cudahy stated in his concurring opinion:
"I do not read [the opinion for the panel] as seriously suggesting that the result we reach furthers the underlying purposes of the Truth in Lending Act. Among these meritorious purposes are the disclosure to buyers of the costs of credit and the alerting of customers to the possibility that their property may be reached to satisfy the obligation which they have incurred.
"Here we require the prominent disclosure of a rather esoteric right to unearned premiums for physical damage insurance (protecting both the seller's and the buyer's interest in the property), which may be used to provide replacement insurance coverage or applied against the buyer's debt in the event of cancellation of the insurance. This 'security interest' is normal in the circumstances but is entirely incidental to the principal consumer credit transaction. . . .
"To disclose this 'security interest' on the face of the contract (which is the point here) is merely to add virtually inconsequential information—lengthening, complicating and trivializing the disclosure for no apparent benefit." 617 F.2d, at 1293.
9
We also granted certiorari to consider petitioners' contention that if we were to hold that disclosure of an assignment of unearned insurance premiums is required under the TILA, our ruling should be made prospective only. Since we hold that such disclosure is not required, we need not address that issue.
10
See Murphy v. Ford Motor Credit Co., 629 F.2d 556 (CA8 1980); Edmondson v. Allen-Russell Ford, Inc., 577 F.2d 291 (CA5 1978); Gennuso v. Commercial Bank & Trust Co., 566 F.2d 437 (CA3 1977).
11
For example, the revised regulation excludes a creditor's interest in after-acquired property from the definition of a "security interest." The regulations implementing the TILA, however, expressly require disclosure of a creditor's interest in after-acquired property. See 12 CFR § 226.8(b)(5) (1980).
12
46 Fed.Reg. 20853 (1981).
The Board's analysis demonstrates that the staff's proposed official interpretation of Regulation Z does not conflict with FRB Public Information Letter No. 377, cited by respondents. FRB Public Information Letter No. 377 is an informal staff interpretation of Regulation Z that was issued in 1970. The interpretation was requested by a loan company whose customers purchased single premium lifetime accidental death and dismemberment policies with the proceeds of their loans. The loan company was designated as the owner of the policy and retained the right to cancel the policy and apply any premium refund to the unpaid balance of the loan if the customer defaulted on the loan. The staff responded: "Under the circumstances, we think it would be appropriate to disclose the loan company's ownership of the policy as a type of 'security interest' . . . ." CCH [1969-1974 Transfer Binder] Cons.Cred.Guide ¶ 30,555.
Petitioners contend that the loan company's interest in the policy differs from petitioners' interest in the unearned insurance premiums in this case. The loan company's interest "was not merely incidental or subordinate to some far more significant interest securing payment of the loan." Reply Brief for Petitioners 9, n. 12. We agree with petitioners that the situation described in the letter is distinguishable from this case.
One other informal staff interpretation of Regulation Z referred to disclosure of unearned insurance premiums. In FRB Public Information Letter No. 1263, the staff responded to an inquiry regarding how an interest in unearned insurance premiums should be identified. The letter pointed out that "a more fundamental matter [is] whether a security interest exists at all" and then suggested that the creditor determine whether as a matter of state law he had acquired an interest in property securing payment of the debt. CCH [1974-1977 Transfer Binder] Cons.Cred.Guide ¶ 31,736. "[A]ssuming this is a security interest for purposes of Regulation Z, the determination of what type of security interest it is should be made in accordance with State law." Ibid. This informal interpretation did not resolve whether disclosure of a creditor's interest in unearned insurance premiums is required under the TILA. Although this letter focused on state law, revised Regulation Z defines a "security interest" as an "interest in property that secures performance of a consumer credit obligation and that is recognized by state or federal law." 46 Fed.Reg. 20894 (1981).
13
When the Board issued proposed regulations implementing the 1980 Act, it stated that the 1980 Act had clarified "certain complex legal questions" regarding the proper interpretation of the TILA, including questions about adequate disclosure of security interests. 45 Fed.Reg. 80731, 80733 (1980).
In its commentary accompanying the revised regulations, 46 Fed.Reg. 20853 (1981), the Board noted that its definition of "security interest" was considerably narrower than § 226.2(gg) of the unrevised regulation, in that it excluded a number of interests that would have been considered security interests under the unrevised regulation. Some of these interests were identified. The Board went on to observe that "there is a difference between an incidental interest and an interest that is the essence of the transaction." Ibid. Only the latter must be disclosed as a "security interest." We do not understand the Board's commentary to indicate in any way that the revised regulation altered the meaning of Regulation Z with respect to whether a creditor must disclose an interest in unearned insurance premiums in a transaction such as is involved in this case.
14
15 U.S.C. § 1604. This section will be renumbered § 1604(a) under the 1980 Act. 94 Stat. 170.
15
Because we do not understand the exclusion of unearned insurance premiums from the definition of "security interest" to have changed the administrative construction of the statute, we need not consider whether if the revised regulation had worked such a change, the case should be decided under the revised regulation which was effective as of April 1, 1981. See Bradley v. Richmond School Board, 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476 (1974); Thorpe v. Housing Authority, 393 U.S. 268, 281-283, 89 S.Ct. 518, 525-526, 21 L.Ed.2d 474 (1969); United States v. Schooner Peggy, 1 Cranch 103, 110, 2 L.Ed. 49 (1801).
16
Although the Committee Report states that the creditor is not required to disclose his "incidental interest" in unearned insurance premiums if the loan is secured by an automobile that is not purchased with the proceeds of the loan, there is no sensible reason for applying a different rule if the loan is secured by an automobile that is purchased with the proceeds of the loan. In either situation the 1980 Act requires the creditor to disclose any "security interest" he has acquired.
17
The 1967 Committee Reports explained that "by requiring all creditors to disclose credit information in a uniform manner, and by requiring all additional mandatory charges imposed by the creditor as an incident to credit [to] be included in the computation of the applicable percentage rate, the American consumer will be given the information he needs to compare the cost of credit and to make the best informed decision on the use of credit." H.R.Rep.No.1040, 90th Cong., 1st Sess., 13; S.Rep.No.392, 90th Cong., 1st Sess., 3 (virtually identical language).
18
Representative Cahill proposed that this language be added to § 203(b) of H.R.11601, governing disclosures for consumer credit sales other than sales under an open-end credit plan. Section 203(b) later became § 128 of the TILA, 15 U.S.C. § 1638. He proposed that the same language be added to § 203(c) of H.R.11601, governing disclosures for extensions of credit other than sales under an open-end credit plan. Section 203(c) later became § 129 of the TILA, 15 U.S.C. § 1639.
19
In drawing the Senate's attention to Representative Cahill's amendments, the sponsor of the Senate truth-in-lending bill, stated:
"Congressman CAHILL, of New Jersey, has offered an important amendment to the truth-in-lending bill which tightens up on the second mortgage racket. First, it would require a 3-day waiting period before a second mortgage transaction can be completed. Second, it would require a disclosure of the fact that credit is being secured by a mortgage on the homeowner's property. Third, the amendment increases the legal rights of consumers with respect to those who purchase mortgages from the original home improvement contractor." 114 Cong.Rec. 5024 (1968).
In presenting the Conference Report on the TILA to the House, Representative Sullivan explained that the House conferees had succeeded in retaining the protections created by the Cahill amendments. She described those amendments as "a series of amendments in the House, to strike at home improvement racketeers who trick homeowners, particularly the poor, into signing contracts at exorbitant rates, which turn out to be liens on the family residences. Any credit transaction which involves a security interest in property must be clearly explained to the consumer as involving a mortgage or lien; any such transaction involving the consumer's residence—other than in a purchase-money first mortgage for the acquisition of the home—carries a 3-day cancellation right." Id., at 14388.
Similarly, Senator Proxmire, presenting the Conference Report on the truth-in-lending bill to the Senate, described the Cahill amendments as providing "additional safeguards in the second mortgage area" and explained that the security interest disclosure provisions would require creditors to "describe any security interest in real property—such as a second mortgage—arising from the credit transaction." Id., at 14488.
20
This Court has frequently relied on the principle 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, 36 L.Ed. 226 (1892). See, e. g., Steelworkers v. Weber, 443 U.S. 193, 201, 99 S.Ct. 2721, 2726, 61 L.Ed.2d 480 (1979); United Housing Foundation, Inc. v. Forman, 421 U.S. 837, 849, 95 S.Ct. 2051, 2059, 44 L.Ed.2d 621 (1975). "When aid to construction of the meaning of words, as used in the statute [or regulation], is available, there certainly can be no 'rule of law' which forbids its use, however clear the words may appear on 'superficial examination.' " United States v. American Trucking Assns., 310 U.S. 534, 543-544, 60 S.Ct. 1059, 1063, 84 L.Ed. 1345 (1940) (footnote omitted).
21
In Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 100 S.Ct. 790, 63 L.Ed.2d 22 (1980), we stressed that the TILA seeks to provide "meaningful disclosure" of credit terms:
"Meaningful disclosure does not mean more disclosure. Rather, it describes a balance between 'competing considerations of complete disclosure . . . and the need to avoid . . . [informational overload].' " Id., at 568, 100 S.Ct., at 798, quoting S.Rep.No.96-73, p. 3 (1979) (accompanying the 1980 Act).
1
The Court does indirectly refer to the plain language of the TILA when it concedes that "[u]naided by an administrative construction of the TILA and Regulation Z, a court could easily conclude, based on the language of the statute and Regulation Z, that the interest in unearned insurance premiums acquired by the creditor in this case should be characterized as a 'security interest' that must be disclosed." Ante, at 222. But the Court does not rely on the one administrative construction that resolves any possible uncertainty in the statutory language, see 12 CFR § 226.2(gg) (1980), and never explains why any further aid is necessary.
2
Regulation Z virtually duplicates the statutory language, requiring a creditor to disclose
"[a] description or identification of the type of any security interest held or to be retained or acquired by the creditor in connection with the extension of credit, and a clear identification of the property to which the security interest relates . . . ." 12 CFR § 226.8(b)(5) (1980) (emphasis added).
3
The assignment clause may therefore be of more than minor significance to a buyer. It would allow the creditor to attach, without full court procedure, perhaps hundreds of dollars which the buyer has spent on insurance for a car which he no longer possesses. A consumer might well want to avoid giving his creditor such a right, and so disclosure of the assignment might well advance the congressional goal of informed credit shopping by consumers. 15 U.S.C. § 1601. But in any event, where the language of the statute clearly covers this security interest, it is not for the courts to assess the significance of the interest.
The Court quotes, apparently with approval, the concurring opinion of Judge Cudahy of the Court of Appeals in this case, which laments that disclosure of the "virtually inconsequential information" about the assignment of the insurance premiums trivializes the disclosure "for no apparent benefit." Ante, at 211, n. 8. Even were Judge Cudahy right about the value of the disclosure at issue here, he, unlike today's Court, did not allow his own appraisal of the question to obscure unequivocal statutory language.
4
Even if the comprehensive language with which the applicable version of Regulation Z begins were insufficient to demonstrate that the assignment clause is a security interest under the TILA, the assignment falls within at least two of the nonexhaustive enumerated examples in the definition. Clauses assigning unearned insurance premiums may well qualify as "consensual . . . liens whether or not recorded," 12 CFR § 226.2(gg) (1980), or "security interests under the Uniform Commercial Code," see Ill.Rev.Stat., ch. 26, &Par; 1-201(37), 9-102(2), 9-306, 9-312 (1979).
5
The Court seeks to find some support for its restrictive reading of the TILA in the legislative history of the Act. Representative Cahill, who introduced the "security interest" provision in the House, stated that the primary reason for the provision was to combat the second-mortgage schemes to which many homeowners had fallen prey, and sponsors of the provision in both Houses appear to have reinforced this view. But the quoted statements from the legislative history do not purport to be explanations of specific statutory language. Rather, they are generalized declarations about the primary purpose of the bill, and so do not preclude other situations clearly covered by the language of the statute. Indeed, the Court seems to agree, recognizing that the narrow focus of the quoted legislative history on the problem of second mortgages on real estate cannot possibly explain the broad language of § 128(a)(10). Ante, at 222.
6
Conceding, as it must, that the Board took no final action on the proposal, the Court offers two unpersuasive reasons for nevertheless according it weight in interpreting the statute. Ante, at 213. First, the Court notes that the period for public comment ended on October 24, 1980. That fact hardly justifies treating the proposed rule as final, because we do not know the views expressed in the comments received, nor can we speculate on whether those comments would have reinforced or altered the staff's view on the statutory question at hand. Second, the Court states that the Board deferred final action only because it thought final action was inappropriate in light of our grant of certiorari in the present case. I do not see how this purported ground for deferral indicates what the Board would have done had it not deferred final action. If anything, we might assume that the Board thought its opinion on the issue unnecessary in light of the impending decision by this Court. If so, it is rather curious that the Court believes it can rely on the proposal.
7
That the Board intended the proposal to have no legal effect finds further proof in the unusual procedure the Board used in issuing the proposal. Normally, a creditor requests the Board for an official interpretation of a statutory or regulatory provision. The Board will then issue an official interpretation, and then decide whether to request public comment. If it does so, the interpretation is withdrawn while comments are received; otherwise, the official interpretation stands. Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 567, n. 10, 100 S.Ct. 790, 798, 63 L.Ed.2d 22. For FC-1073, however, the Board never issued an official interpretation, but only a proposal, and immediately requested public comment.
8
The Court's reliance on FC-1073 finds no support in our decision in Ford Motor Credit Co. v. Milhollin, supra. The Court there stated that "absent a clear expression, it becomes necessary to consider the implicit character of the statutory scheme." Id., at 560, 100 S.Ct., at 793 (emphasis added). In that case, the Court found no clear expression in the statute or regulation on the question whether the creditor had to disclose an acceleration clause on the face of the agreement, and therefore found it necessary and proper
to defer to the views of the Federal Reserve Board staff in construing the statute. Ibid. Here, by contrast, the statute and definitional rule combine in an unequivocally clear expression on the disclosure issue.
Moreover, in Milhollin, the Court inferred a congressional preference for resolving interpretive issues by "uniform administrative decision." Id., at 568, 100 S.Ct., at 798 (emphasis added). But FC-1073 hardly represents a uniform Board view of the statute. As quoted by the Court, the proposal concedes that a "technical reading of the security interest definition might cover a creditor's interest in insurance proceeds and unearned insurance premiums," but concludes that "it is our opinion that such incidental interests are not the type of interests meant to be covered by § 226.8(b)(5)." Ante, at 212-213 (emphasis added).
What FC-1073 calls a "technical reading" of the Board definition of "security interest" in § 226.2(gg) of Regulation Z is in fact the only permissible reading of that definition. The proposal letter effectively concedes that it is in conflict with the applicable official Board regulation, and nothing in Regulation Z supports the view in the proposal that 15 U.S.C. § 1638(a)(10), which speaks of "any" security interest, was intended to exclude "incidental" interests. FC-1073 thus directly contravenes the higher administrative authority of an official regulation. The proposal, indeed, also conflicts with at least one other informal staff interpretation by the Board. In FRB Public Information Letter No. 377, CCH [1969-1974 Transfer Binder] Cons.Cred.Guide ¶ 30,555, the Board expressly told an inquiring creditor that he should disclose to the debtor that in the event of default the credit company could cancel the life insurance policy the debtor was to buy with the loan money, and could apply any premium refund to the balance of the loan. Contrary to the Court's suggestion, ante, at 215-216, n. 12, Letter No. 377 does not rely on the notion that in that instance, as opposed to the present case the credit was extended expressly to enable the consumer to buy insurance.
9
The explanation states: "This definition [of 'security interest'] is based on § 226.2(gg) of the current regulation, but is much narrower. The revised definition lists a number of interests that have been considered security interests under the current regulation but no longer will be . . . ." 46 Fed.Reg. 20853 (1981) (emphasis added).
10
There are other reasons why Senator Garn's statement merits little weight. First, the statement was written and inserted in the Congressional Record, rather than made on the floor of the Senate. Second, Senator Garn's opinion is not reflected in the Report of the Committee, of which he was a member.
11
Indeed, even were it appropriate for the Court to proffer its own view about the practical necessity of a particular credit disclosure, the Court's view is at least questionable. Disclosing an assignment of unearned insurance premiums might be of considerable interest to the credit-shopping consumer. See n. 3, supra. And far from creating an "informational overload," such a disclosure could result in replacing convoluted assignment language, such as that on the back of the contract in this case, with a simple statement that "the buyer gives the creditor an interest in the vehicle and in all insurance charges," such as the statement Ford, in response to the nationwide litigation over this issue, now includes on the face of its contracts.
| 78
|
452 U.S. 233
101 S.Ct. 2281
68 L.Ed.2d 803
AMERICAN EXPRESS COMPANY, Petitioner,v.Louis R. KOERNER, Sr.
No. 80-202.
Argued April 20, 1981.
Decided June 8, 1981.
Syllabus
Section 161(a) of the Truth in Lending Act (TILA), as added by the Fair Credit Billing Act, provides that whenever a creditor sends an obligor a statement of the obligor's account "in connection with an extension of consumer credit" and the obligor believes that the statement contains a billing error, the obligor may send the creditor a written notice. If such a notice is sent, the creditor then must acknowledge receipt of it, investigate the matter, and either correct the account or send a written explanation of its belief that the original statement was correct. Section 103(h) of the TILA provides that the adjective "consumer," used with reference to a credit transaction, characterizes the transaction as one in which the party to whom credit is offered or extended "is a natural person" and the money, property, or services which are the subject of the transaction are "primarily for personal, family, household, or agricultural purposes." A corporation of which respondent is an officer applied to petitioner for a "company account" designed for business customers and asked petitioner to issue credit cards to respondent and other officers. Respondent was required to sign a "company account" form, agreeing to be jointly and severally liable with the company for all charges incurred through use of the card issued to him. Cards were issued on the company's credit rating. A dispute arose between the company and petitioner with respect to charges for flight insurance for certain business trips made by company employees and for renewal of cards that the company claimed were no longer desired, and the company refused to pay the amount in dispute. Company officers wrote to petitioner several times about this, but it does not appear that petitioner ever responded. Subsequently, when respondent attempted to use his company card, he was informed that the account had been canceled because of delinquency in payment. Respondent then filed an action in Federal District Court, alleging, inter alia, that petitioner had canceled the account because of respondent's company's refusal to pay the disputed charges, and seeking damages for petitioner's failure to comply with § 161(a). The District Court granted summary judgment for petitioner, holding that § 161(a) did not apply to an account opened in the name of a corporation in reliance on the corporation's credit. The Court of Appeals reversed.
Held : Section 161(a) is not applicable to the dispute between these parties, and hence petitioner was not required to follow the procedures mandated by § 161(a). The threshold requirement of § 161(a)—an "extension of consumer credit"—was not satisfied. The company account was not covered by § 103(h)'s definition of "consumer," because it was opened primarily for business purposes and not "primarily for personal, family, household, or agricultural purposes." Similarly, the transactions giving rise to the billing dispute cannot be characterized as extensions of consumer credit, since they were business transactions. Pp. 240-246.
615 F.2d 191, reversed.
Ronald J. Greene, Washington, D.C., for petitioner.
Louis R. Koerner, Jr., New Orleans, La., for respondent.
Justice BLACKMUN delivered the opinion of the Court.
1
The question presented is whether a creditor must follow the requirements specified in 1974 by the Fair Credit Billing Act, Pub.L. 93-495, Tit. III, 88 Stat. 1511, for the correction of billing errors, when both a corporation and an individual officer are liable for a debt.
2
* The Fair Credit Billing Act added a number of provisions to the Truth in Lending Act (TILA), Pub.L. 90-321, Tit. I, 82 Stat. 146. A primary provision, and the one at issue in this case, is § 161(a), as so added. 88 Stat. 1512, 15 U.S.C. § 1666(a).1 This section applies whenever a creditor transmits to an obligor "a statement of the obligor's account in connection with an extension of consumer credit." If the obligor believes that the statement contains a billing error,2 he then may send the creditor a written notice setting forth that belief, indicating the amount of the error and the reasons supporting his belief that it is an error. If the creditor receives this notice within 60 days of transmitting the statement of account, § 161(a) imposes two separate obligations upon the creditor. Within 30 days, it must send a written acknowledgment that it has received the notice. And, within 90 daysor two complete billing cycles, whichever is shorter, the creditor must investigate the matter and either make appropriate corrections in the obligor's account or send a written explanation of its belief that the original statement sent to the obligor was correct. The creditor must send its explanation before making any attempt to collect the disputed amount.
3
A creditor that fails to comply with § 161(a) forfeits its right to collect the first $50 of the disputed amount including finance charges. § 161(e), 15 U.S.C. § 1666(e). In addition, § 161(d) provides that, pursuant to regulations of the Federal Reserve Board, a creditor operating an "open end consumer credit plan" may not restrict or close an account due to an obligor's failure to pay a disputed amount until the creditor has sent the written explanation required by § 161(a).
4
Every creditor under an "open end consumer credit plan" must disclose the protections available under § 161 to the obligor. This disclosure must occur at the time the account is opened and at semiannual intervals thereafter. See § 127(a)(8), 15 U.S.C. § 1637(a)(8).
II
5
This case presents a dispute over the applicability of § 161. The relevant facts, as the District Court noted, are largely undisputed. On November 16, 1965, prior to the enactment of the TILA, John E. Koerner & Co., Inc., applied for a credit card account with petitioner American Express Company. The application was for a "company account" designed for business customers. App. 27a. The Koerner Company asked American Express to issue cards bearing the company's name to respondent Louis R. Koerner, Sr., and four other officers of the corporation. Respondent was required to sign a "company account" form, agreeing that he would be jointly and severally liable with the company for all charges incurred through the use of the company card that was issued to him. Id., at 28a. American Express, before issuing the cards, investigated the company's credit rating, but not that of respondent or the other officers.
6
American Express billed the Koerner Company for all charges arising from the use of the five cards issued for the company account. It sent a monthly statement showing the total due and listing individual subtotals for each of the five users. Although respondent employed his card mostly for business-related expenses, he used it occasionally for personal expenses. When he did so, he paid for these items by sending his personal check to American Express. Charges for his business-related expenses were paid by the company.
7
In 1975, a dispute arose between the Koerner Company and American Express concerning charges that appeared on the company account. American Express had billed the company for flight insurance for three business trips made by company employees, and for renewal fees for two of the cards that the company claimed were no longer desired. The total amount in dispute, which the company refused to pay, was $55. Company officials wrote to American Express several times about this. The record does not indicate that American Express responded in any way prior to November 1976.3
8
On September 28, 1976, respondent attempted to use his card to purchase a plane ticket for a business trip. After getting in touch with American Express, the ticket agent requested that respondent speak by telephone with an American Express employee. This employee informed respondent that the account was canceled because of delinquency in payment. She instructed the ticket agent to cut respondent's card in two and return it to him.
9
Shortly thereafter, respondent filed this action in the United States District Court for the Eastern District of Louisiana. He alleged that American Express had canceled the account because of the Koerner Company's refusal to pay the disputed charges and in retaliation for the many complaints that had been made by the company in its attempt to resolve the dispute. Jurisdiction was based upon § 130 of the TILA, 15 U.S.C. § 1640, which provides for the recovery of actual damages sustained by any person as the result of a creditor's failure to comply with various provisions of the TILA, including § 161, and grants jurisdiction of such actions to the federal district courts. The complaint sought damages of $25,000 for "inconvenience, mental anguish, grief, aggravation, and humiliation." App. 20a.4 Respondent, invoking diversity jurisdiction, also sought damages under Louisiana law.
10
The District Court granted American Express' motion for summary judgment. 444 F.Supp. 334 (1977). It held that both § 161, which applies only to "an extension of consumer credit," and § 104(1), 15 U.S.C. § 1603(1), which exempts "[c]redit transactions involving extensions of credit for business or commercial purposes" from most of the provisions of the TILA,5 required the conclusion that the procedures established by § 161 do not apply to an account opened in the name of a corporation in reliance upon the corporation's credit.6
11
The United States Court of Appeals for the Fifth Circuit reversed. 615 F.2d 191 (1980). Noting that respondent was jointly and severally liable with the company for all debts incurred by his use of the card, the court concluded: "If [American Express] can recover from a consumer, then it must abide by the requirements of [§ 161] for correction of billing errors in a consumer's credit card statement. The credit card company cannot have it both ways. . . ." Id., at 195.
12
Because of the significance of the issue in the enforcement of the TILA, we granted certiorari. 449 U.S. 1076, 101 S.Ct. 854, 66 L.Ed.2d 798 (1981).
III
13
The threshold inquiry under § 161(a) is whether the creditor has transmitted to an obligor "a statement of the obligor's account in connection with an extension of consumer credit." If there has been no extension of "consumer credit," the section imposes no obligation upon a creditor, and the creditor is free to adopt its own procedures for responding to a customer's complaint about a billing error. We conclude that, on the undisputed facts of this case, respondent has failed to show that American Express has extended him "consumer credit" in any relevant transaction. Section 161(a), therefore, is not applicable to the dispute between these parties.7
14
In order for there to be an extension of consumer credit, there first must be an extension of "credit." The TILA's definition of "credit" is contained in § 103(e), 15 U.S.C. § 1602(e): "The term 'credit' means the right granted by a creditor to a debtor to defer payment of debt or to incur debt and defer its payment."8 Thus, a credit card company such as American Express extends credit to an individual or an organization when it opens or renews an account, as well as when the cardholder actually uses the credit card to make purchases. When the account is opened or renewed, the creditor has granted a right "to incur debt and defer its payment" ; when the card is used, the creditor has allowed the cardholder "to defer payment of debt."
15
An extension of credit is an extension of "consumer credit" if the conditions specified in the statute's definition of "consumer" are also satisfied. Section 103(h) of the TILA, 15 U.S.C. § 1602(h), defines "consumer" as follows:
16
"The adjective 'consumer,' used with reference to a credit transaction, characterizes the transaction as one in which the party to whom credit is offered or extended is a natural person, and the money, property, or services which are the subject of the transaction are primarily for personal, family, household, or agricultural purposes."
17
Two elements thus must be present in every "consumer credit" transaction: the party to whom the credit is extended must be a natural person, and the money, property, or services received by that person must be "primarily for personal, family, household, or agricultural purposes."9 We therefore conclude that the Court of Appeals erred in holding respondent to be a "consumer" without deciding whether American Express had extended him credit primarily for any of the purposes specified in § 103(h). If it had considered this issue, the only permissible conclusion for it to reach would have been that the undisputed facts of this case establish that the threshold requirement of § 161(a)—an "extension of consumer credit"—has not been satisfied because none of the credit transactions relevant to the billing dispute was entered into "primarily" for consumer purposes.
18
The language of § 161(a) does not distinguish between the two types of transactions included in the definition of "credit" or indicate which of them must satisfy the definition of "consumer" in order for the section to be applicable. There are several possibilities. The relevant extension of credit may be only the creation or renewal of the account. Under this view, adopted by the District Court, 444 F.Supp., at 340, if an account is opened by a natural person, its overall purpose must be considered. If the account is opened primarily for consumer purposes, § 161(a) applies, even if the cardholder uses the card for an occasional nonconsumer purchase. On the other hand, the language might be interpreted to call for a transaction-by-transaction approach. With such an approach, § 161 would apply if the transaction that is the subject of the dispute is a consumer credit transaction, regardless of the overall purpose of the account. A third alternative would be to combine the two approaches by holding § 161 applicable to all disputes that arise under an account that is characterized as a consumer credit account as well as to any dispute concerning an individual transaction that is an extension of consumer credit, even if the overall purpose of the account is primarily a business one.
19
We need not choose among these alternatives in order to decide this case,10 for we find that respondent is unable to succeed under any of them. The undisputed facts of this case reveal that the Koerner Company obtained the right "to incur debt and defer its payment" from American Express primarily for business, not consumer, purposes. In addition, the specific transactions that were the subject of the dispute between the company and American Express also were business transactions. The facts of this case, therefore, are not encompassed within any possible interpretation of the phrase "extension of consumer credit" in § 161(a).
20
The overall purpose of the Koerner Company's account is clear, and respondent has not claimed that the company sought its account with American Express primarily for consumer purposes. Rather, the company applied for a "company account" using a form supplied by American Express for such an account. App. 27a. Respondent's separate application for a supplementary credit card for the same account also was submitted on a company account form. Id., at 28a. The only credit references submitted to American Express on these forms were those of the Koerner Company, and respondent has admitted that the account was billed to the Koerner Company as a business account. Id., at 25a and 30a. We agree with the District Court that this evidence is sufficient to indicate that the account was opened primarily for business or commercial purposes. See 444 F.Supp., at 340. The evidence submitted by respondent does not weaken this conclusion. In fact, it confirms it. Respondent admitted that he used the card mostly for business purposes.11 His answers to petitioner's interrogatories identified no more than seven nonbusiness uses of the card between 1972 and 1976. App. 42a-43a.12
21
We do not suggest that it always will be easy to determine whether the opening of a credit account involves an extension of consumer credit. The Court of Appeals noted that often it is difficult to characterize the overall purpose of a credit card account that allows for a large number of individual transactions. 615 F.2d, at 195.13 It is clear, however, that the Fair Credit Billing Act requires creditors and the courts to undertake this task. See n. 10, supra. On this record, there can be no dispute that the Koerner Company's account was not covered by § 103(h)'s definition of "consumer," because it was not opened "primarily for personal, family, household, or agricultural purposes."
22
Similarly, the transactions that were the subject of the underlying dispute cannot be characterized as extensions of consumer credit. These transactions involved either charges for flight insurance added to the cost of airline tickets purchased with the Koerner Company's American Express card or charges for the renewal of cards that the company asserted were no longer wanted. None of these charges was an extension of consumer credit. Respondent's answers to interrogatories admitted that the airline tickets were purchased for business trips. App. 41a-42a. The renewal charges could be considered charges for an extension of consumer credit only if the overall purposes of the account were consumer purposes. As we already have seen, respondent has provided no evidence indicating that this was so.
23
Inasmuch as the record establishes that there was no dispute between petitioner and respondent concerning "a statement of [respondent's] account in connection with an extension of consumer credit," petitioner was not required to follow the procedures mandated by § 161(a).
IV
24
Because Congress has restricted the operation of § 161(a) to disputes concerning extensions of consumer credit, and because the dispute between American Express and respondent did not concern an extension of consumer credit, the judgment of the Court of Appeals must be, and is, reversed.
25
It is so ordered.
1
Section 161(a) provides:
"If a creditor, within sixty days after having transmitted to an obligor a statement of the obligor's account in connection with an extension of
consumer credit, receives at the address disclosed under section 127(b)(11) a written notice (other than a notice on a payment stub or other payment medium supplied by the creditor if the creditor so stipulates with the disclosure required under section 127(a)(8)) from the obligor in which the obligor—
"(1) sets forth or otherwise enables the creditor to identify the name and account number (if any) of the obligor,
"(2) indicates the obligor's belief that the statement contains a billing error and the amount of such billing error, and
"(3) sets forth the reasons for the obligor's belief (to the extent applicable) that the statement contains a billing error,
the creditor shall, unless the obligor has, after giving such written notice and before the expiration of the time limits herein specified, agreed that the statement was correct—
"(A) not later than thirty days after the receipt of the notice, send a written acknowledgement thereof to the obligor, unless the action required in subparagraph (B) is taken within such thirty-day period, and
"(B) not later than two complete billing cycles of the creditor (in no event later than ninety days) after the receipt of the notice and prior to taking any action to collect the amount, or any part thereof, indicated by the obligor under paragraph (2) either—
"(i) make appropriate corrections in the account of the obligor, including the crediting of any finance charges on amounts erroneously billed, and transmit to the obligor a notification of such corrections and the creditor's explanation of any change in the amount indicated by the obligor under paragraph (2) and, if any such change is made and the obligor so requests, copies of documentary evidence of the obligor's indebtedness; or
"(ii) send a written explanation or clarification to the obligor, after having conducted an investigation, setting forth to the extent applicable the reasons why the creditor believes the account of the obligor was correctly shown in the statement and, upon request of the obligor, provide copies of documentary evidence of the obligor's indebtedness. In the case of a billing error where the obligor alleges that the creditor's billing statement reflects goods not delivered to the obligor or his designee in accordance with the agreement made at the time of the transaction, a creditor may not construe such amount to be correctly shown unless he determines that such goods were actually delivered, mailed, or otherwise
sent to the obligor and provides the obligor with a statement of such determination.
After complying with the provisions of this subsection with respect to an alleged billing error, a creditor has no further responsibility under this section if the obligor continues to make substantially the same allegation with respect to such error."
2
"Billing error" is defined in § 161(b), 88 Stat. 1513, 15 U.S.C. § 1666(b):
"For the purpose of this section, a 'billing error' consists of any of the following:
"(1) A reflection on a statement of an extension of credit which was not made to the obligor or, if made, was not in the amount reflected on such statement.
"(2) A reflection on a statement of an extension of credit for which the obligor requests additional clarification including documentary evidence thereof.
"(3) A reflection on a statement of goods or services not accepted by the obligor or his designee or not delivered to the obligor or his designee in accordance with the agreement made at the time of a transaction.
"(4) The creditor's failure to reflect properly on a statement a payment made by the obligor or a credit issued to the obligor.
"(5) A computation error or similar error of an accounting nature of the creditor on a statement.
"(6) Any other error described in regulations of the Board."
Like many other provisions of the TILA, § 161(b) was amended in 1980 by the Truth in Lending Simplification and Reform Act, Pub.L. 96-221, Tit. VI, 94 Stat. 168. Because the effective date of these amendments is April 1, 1982, see § 625(a) of the 1980 Act, 94 Stat. 185, and because the changes made in the TILA by these amendments are of no consequence to the issue presented by the present case, we cite only the currently effective provisions of the TILA throughout this opinion.
3
Although the record is unclear, American Express apparently credited the account in the amount of $54.45 on November 26, 1976, leaving a balance of 55 cents. App. 41a.
4
Respondent also sought to represent a class composed of persons and organizations who held American Express cards or would do so in the future, and a subclass composed of all those cardholders who had attempted to utilize the provisions of § 161 and had been injured by American Express' violations of that section. On behalf of these classes, he sought injunctive relief and damages. Respondent, however, did not obtain certification of a class pursuant to Federal Rule of Civil Procedure 23(c) prior to the District Court's decision.
5
By § 135 of the TILA, as added by Pub.L. 93-495, § 410(a), 88 Stat. 1519, 15 U.S.C. § 1645, Congress provided that the business purpose exemption in § 104(1) is generally not applicable to § 132, 15 U.S.C. § 1642 (prohibiting the issuance of unsolicited credit cards), to § 133, 15 U.S.C. § 1643 (limiting a cardholder's liability for unauthorized use of a card to $50), and to § 134, 15 U.S.C. § 1644 (imposing criminal penalties for various offenses involving credit cards).
6
Respondent conceded that his claims under state law, for which he had invoked diversity jurisdiction, did not satisfy the amount-in-controversy requirement of 28 U.S.C. § 1332. See 444 F.Supp., at 335, n. 1, and 342.
7
In view of our reliance upon § 161(a)'s use of the term "consumer credit," we have no occasion to address petitioner's broader argument that all the provisions of the TILA, except those mentioned in § 135, 15 U.S.C. § 1645, are inapplicable to the Koerner Company's account because of the exemption for credit extended for business or commercial purposes contained in § 104(1), 15 U.S.C. § 1603(1).
8
It is undisputed that American Express is a "creditor," as defined in § 103(f) of the TILA, 15 U.S.C. § 1602(f). The term "debtor" is not defined in the Act, but American Express does not contend that respondent is not a "debtor."
9
We hereinafter use the phrase "consumer purposes" as the equivalent of "personal, family, household, or agricultural purposes."
10
It is clear that some consideration of the overall purposes of a credit card account, not merely of individual transactions, is necessary under § 161. For example, the application of § 161(a) to some of the billing
errors specified in § 161(b) is possible only when the credit card account itself is classified as an extension of consumer credit. This is because these errors (charges for extensions of credit that never were made, failure to reflect payments made by the obligor, and errors in computation) do not arise from a particular use of a credit card. Furthermore, provisions such as § 161(d), which prohibits a creditor that operates "an open end consumer credit plan " (emphasis added) from closing or restricting an account unless it has complied with § 161(a), and § 127(a)(8), which requires creditors to disclose the protections available under § 161(a) "[b]efore opening any account under an open end consumer credit plan " (emphasis added), as well as twice a year after the account is opened, clearly are applicable only if the account itself (the "plan") is an extension of consumer credit.
We are hesitant, however, to preclude completely the possibility of a transaction-by-transaction approach to § 161(a). Regulation Z of the Federal Reserve Board includes detailed rules applying § 161(a), and the regulation is entitled to substantial deference. Anderson Bros. Ford v. Valencia, 452 U.S. 205, 219, 101 S.Ct. 2266, 2274, 68 L.Ed.2d 783 (1981); Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 100 S.Ct. 790, 63 L.Ed.2d 22 (1980); Mourning v. Family Publications Service, Inc., 411 U.S. 356, 93 S.Ct. 1652, 36 L.Ed.2d 318 (1973). The scope of the rules implementing § 161 is stated in 12 CFR § 226.14(g) (1980):
"This section does not apply to credit other than open end [a term defined to include only consumer credit, see 12 CFR § 226.2(x) (1980)], whether or not a periodic statement is mailed or delivered, unless it is consumer credit extended on an account by use of a credit card."
The reference to "consumer credit extended on an account by use of a credit card" seems to indicate that a dispute concerning any transaction involving the use of a credit card by a natural person for consumer purposes may be subject to the requirements of § 161(a).
We are aware that the Federal Reserve Board recently has promulgated a complete revision of Regulation Z, 46 Fed.Reg. 20847 (Apr. 7, 1981), and that the statement accompanying the revision indicates that "cards issued for non-consumer credit purposes are covered only by the provisions regarding credit card issuance and liability." Id., at 20850. See also 45 Fed.Reg. 80648, 80651 (1980) (statement accompanying the proposed rules). ("[W]hen a card is issued for business purposes, the fact that an individual uses it for consumer purposes does not subject the card issuer to the provisions on periodic statements, billing error resolution, and other consumer protections"). For the reasons stated in the text, however, we need not decide whether the 1981 revision applies retroactively to this case, whether it conflicts with the earlier version of the regulations, or whether it is valid if it does conflict. Regardless of how we were to answer these questions, respondent cannot succeed on the merits.
11
Memorandum in Support of Plaintiff's Motion for New Hearing and to Alter or Amend Judgment and/or for New Trial 1-2, Record 158-159.
12
American Express included in the billing records of the account for the period June 1975 to August 1976 (excluding February 1976), as Exhibit 3 to its Statement of Uncontested Material Facts, submitted with its Motion for Summary Judgment, Record Item No. 6. These records reveal that respondent used the card approximately 60 times during this period.
13
See also American Airlines, Inc. v. Remis Industries, Inc., 494 F.2d 196, 201 (CA2 1974); Credit Card Service Corp. v. FTC, 161 U.S.App.D.C. 424, 428, 495 F.2d 1004, 1008 (1974).
| 78
|
452 U.S. 431
101 S.Ct. 2445
69 L.Ed.2d 134
State of CALIFORNIA, Plaintiff,v.State of ARIZONA and the United States.
No. 78, Orig.
June 15, 1981.
1
On Bill of Complaint.
2
The Report of the Special Master is received and ordered filed.
DECREE
3
The joint motion of plaintiff and defendants for entry of a decree having been submitted to the Court together with the Report of the Special Master recommending that the motion be granted,
4
IT IS ORDERED, ADJUDGED, AND DECREED AS FOLLOWS:
5
1. The Report of the Special Master is hereby approved, and the motion of plaintiff and defendants for entry of a decree is granted.
6
2. This decree determines ownership of certain portions of the bed of the former channel of the Colorado River. The decree does not relate to, nor does it have an effect upon, the political boundary between the State of California and the State of Arizona, which was set by congressionally approved compact in 1966 (Pub.L.No.89-531, 80 Stat. 340).
7
3. The State of California is the owner in fee simple, by virtue of its sovereignty, of those lands in the bed of the former channel of the Colorado River more particularly described in Exhibit A to this decree.
8
4. The boundaries of the lands described in paragraph 3 above and in Exhibit A to this decree are permanent and fixed.
9
5. The State of Arizona and the United States of America, and each of them, have no right, title, estate, or lien, whatever, in the lands described in paragraph 3 above and in Exhibit A to this decree, and the State of Arizona and the United States of America, and each of them, are hereby enjoined and restrained from claiming or asserting any right, title, estate, or lien, whatever, in said lands, subject to the provisions of paragraph 9 below.
10
6. The State of Arizona is the owner in fee simple, by virtue of its sovereignty, of those lands in the bed of the former channel of the Colorado River, more particularly described in Exhibit B to this decree.
11
7. The boundaries of the lands described in paragraph 6 above and in Exhibit B to this decree are permanent and fixed.
12
8. The State of California and the United States of America, and each of them, have no right, title, estate, or lien, whatever, in the lands described in paragraph 6 above and in Exhibit B to this decree, and the State of California and the United States of America, and each of them, are hereby enjoined and restrained from claiming or asserting any right, title, estate, or lien, whatever, in said lands, subject to the provisions of paragraph 9 below.
13
9. This action does not present for decision any question concerning the existence or extent of the federal navigational servitude in the lands that are the subject of this decree, and this decree makes no determination concerning that question.
14
10. The expenses of the Special Master shall be borne by the parties as previously directed by the Court. Each party shall bear its own costs in this action.
EXHIBIT A
15
A parcel of land in the former channel of the Colorado River in Imperial County, California, adjacent to Township 9 South, Range 21 East, San BernardinoMeridian; Township 10 South, Range 21 East, San Bernardino Meridian; Township 10 South, Range 22 East, San Bernardino Meridian; Township 11 South, Range 22 East, San Bernardino Meridian, more particularly described as follows:
16
BEGINNING at a point on the center line of the former channel of the Colorado River having California Coordinate System, Zone 6, coordinates of x= 2,482,449.14 feet and y= 387,218.39 feet, from which United States Water and Power Resources Service (formerly United States Bureau of Reclamation) Station RUIN bears N 56 27'07"E 733.37 feet, as said points are shown on the map entitled, 'Davis Lake Area Project Administrative Maps', said map approved October 28, 1976 by the California State Lands Commission, and being on file at the office of said Commission in Sacramento, California; thence from said point of beginning, upstream along the center line of the former channel of the Colorado River, said center line being a fixed and limiting boundary of the herein described parcel, the following 377 courses:
17
1. N 06x11'02" E 91.76 feet; | 23. N 40x25'19" W 290.08 feet;
18
2. N 54x12'32" E 18.78 feet; | 24. N 44x30'49" W 169.94 feet;
19
3. N 12x45'10" E 174.75 feet; | 25. N 30x52'29" W 39.42 feet;
20
4. N 12x53'00" W 103.53 feet; | 26. N 47x44'12" W 40.80 feet;
21
5. N 05x09'17" W 146.10 feet; | 27. N 21x30'40" W 23.17 feet;
22
6. N 13x58'10" E 87.64 feet; | 28. N 34x34'58" W 209.82 feet;
23
7. N 05x10'13" W 66.53 feet; | 29. N 34x44'50" W 317.95 feet;
24
8. N 23x31'10" E 26.95 feet; | 30. N 34x44'47" W 291.32 feet;
25
9. N 36x32'17" E 111.82 feet; | 31. N 37x31'17" W 279.41 feet;
26
10. N 19x17'18" W 275.69 feet; | 32. N 36x05'21" W 275.56 feet;
27
11. N 04x49'28" W 45.39 feet; | 33. N 37x39'47" W 240.96 feet;
28
12. N 25x30'26" W 64.01 feet; | 34. N 32x03'44" W 164.74 feet;
29
13. N 21x45'19" W 170.09 feet; | 35. N 26x41'11" E 14.17 feet;
30
14. N 02x16'16" E 15.76 feet; | 36. N 37x08'14" W 33.36 feet;
31
15. N 26x25'14" W 142.77 feet; | 37. N 35x36'16" W 86.74 feet;
32
16. N 19x59'28" W 151.68 feet; | 38. N 39x41'49" W 66.46 feet;
33
17. N 32x00'03" W 345.18 feet; | 39. N 37x12'59" W 163.13 feet;
34
18. N 03x24'14" W 16.15 feet; |40. N 28x19'51" W 220.22 feet;
35
19. N 34x25'41" W 352.66 feet; | 41. N 34x33'42" W 149.82 feet;
36
20. N 30x34'31" W 260.03 feet; | 42. N 39x16'54" W 17.91 feet;
37
21. N 36x46'58" W 310.64 feet; | 43. N 46x59'54" W 65.69 feet;
38
22. N 41x48'53" W 306.12 feet; |44. N 36x45'41" W 175.14 feet; 45. N 30x48'13" W 247.89 feet; | 88. N 60x52'13" E 166.51 feet;
39
46. N 35x33'18" W 233.54 feet; | 89. N 57x00'27" E 53.17 feet;
40
47. N 42x45'30" W 301.59 feet; | 90. N 57x43'27" E 326.93 feet;
41
48. N 29x31'50" W 70.64 feet; | 91. N 68x38'25" E 38.74 feet;
42
49. N 39x15'12" W 181.84 feet; | 92. N 45x44'50" E 25.05 feet;
43
50. N 34x08'26" W 287.28 feet; | 93. N 60x53'25" E 148.11 feet;
44
51. N 36x56'15" W 341.54 feet; | 94. N 52x28'50" E 136.72 feet;
45
52. N 33x51'40" W 248.93 feet; | 95. N 53x48'33" E 194.46 feet;
46
53. N 30x53'53" W 227.36 feet; | 96. N 53x11'16" E 49.55 feet;
47
54. N 28x52'32" W 133.47 feet; | 97. N 80x15'07" E 22.12 feet;
48
55. N 41x33'10" W 32.08 feet; | 98. N 50x13'23" E 181.66 feet;
49
56. N 32x30'33" W 214.79 feet; | 99. N 69x57'50" E 40.08 feet;
50
57. N 32x47'41" W 159.63 feet; | 100. N 34x56'12" E 24.41 feet;
51
58. N 41x44'15" W 149.07 feet; | 101. N 50x47'14" E 202.15 feet;
52
59. N 51x38'10" W 15.67 feet; | 102. N 61x59'40" E 50.34 feet;
53
60. N 29x44'55" W 238.30 feet; | 103. N 47x49'50" E 49.76 feet;
54
61. N 25x49'43" W 111.43 feet; | 104. N 48x09'42" E 163.97 feet;
55
62. N 09x13'34" W 69.07 feet; | 105. N 50x09'37" E 112.15 feet;
56
63. N 21x53'52" W 147.48 feet; | 106. N 27x22'23" E 134.94 feet;
57
64. N 65x05'19" W 9.15 feet; | 107. N 47x51'44" E 124.47 feet;
58
65. N 32x30'38" W 38.27 feet; | 108. N 46x01'44" E 142.53 feet;
59
66. N 21x01'27" W 83.19 feet; | 109. N 39x04'50" E 180.94 feet;
60
67. N 10x39'51" E 44.53 feet; | 110. N 45x09'21" E 189.68 feet;
61
68. N 02x15'38" W 45.67 feet; | 111. N 39x57'52" E 156.08 feet;
62
69. N 44x22'08" W 27.00 feet; | 112. N 43x26'27" E 199.19 feet;
63
70. N 20x34'25" W 93.00 feet; | 113. N 52x12'27" E 221.41 feet;
64
71. N 18x23'16" W 48.78 feet; | 114. N 50x29'55" E 152.42 feet;
65
72. N 16x26'02" W 95.55 feet; | 115. N 52x54'27" E 179.48 feet;
66
73. N 04x26'34" W 49.11 feet; | 116. N 62x15'35" E 213.37 feet;
67
74. N 08x54'12" W 109.59 feet; | 117. N 68x45'32" E 55.26 feet;
68
75. N 45x00'45" W 15.45 feet; | 118. N 67x29'40" E 76.60 feet;
69
76. N 15x52'18" W 46.11 feet; | 119. N 65x41'07" E 165.43 feet;
70
77. N 23x50'06" E 50.55 feet; |120. N 67x14'09" E 294.39 feet;
71
78. N 06x27'18" W 28.68 feet; | 121. N 64x24'36" E 128.78 feet;
72
79. N 29x30'20" W 14.62 feet; | 122. N 53x03'32" E 106.15 feet;
73
80. N 15x29'04" E 39.92 feet; | 123. N 70x17'39" E 35.29 feet;
74
81. N 28x23'27" E 42.72 feet; | 124. N 73x29'13" E 147.47 feet;
75
82. N 23x04'47" E 132.80 feet; | 125. N 59x19'13" E 74.01 feet;
76
83. N 47x17'33" E 256.64 feet; | 126. N 30x28'52" E 18.53 feet;
77
84. N 48x40'23" E 89.15 feet; | 127. N 60x22'22" E 71.20 feet;
78
85. N 52x50'14" E 286.63 feet; | 128. N 18x45'56" E 28.50 feet;
79
86. N 59x57'29" E 156.23 feet; | 129. N 39x20'12" E 181.32 feet;
80
87. N 62x51'03" E 103.67 feet; |130. N 15x18'44" E 22.87 feet; 131. N 34x48'05" E 113.34 feet; | 174. S 89x23'45" W 20.87 feet;
81
132. N 01x37'33" E 25.20 feet; | 175. N 62x40'51" W 144.58 feet;
82
133. N 20x03'20" E 279.59 feet; | 176. N 60x27'35" W 329.61 feet;
83
134. N 08x48'55" E 494.65 feet; | 177. N 58x43'43" W 350.72 feet;
84
135. N 06x07'16" W 329.64 feet; | 178. N 49x48'54" W 206.44 feet;
85
136. N 01x08'01" W 46.25 feet; | 179. N 71x14'37" W 266.43 feet;
86
137. N 12x04'58" W 216.22 feet; | 180. N 67x56'20" W 72.52 feet;
87
138. N 02x16'55" E 41.56 feet; | 181. N 64x05'13" W 230.11 feet;
88
139. N 12x25'25" W 199.17 feet; | 182. N 68x36'52" W 337.96 feet;
89
140. N 27x14'52" W 38.46 feet; | 183. N 68x46'07" W 60.86 feet;
90
141. N 20x48'06" W 242.26 feet; | 184. N 57x31'28" W 62.02 feet;
91
142. N 19x51'45" W 337.38 feet; | 185. N 69x12'17" W 194.71 feet;
92
143. N 24x07'19" W 226.77 feet; | 186. N 74x52'18" W 51.54 feet;
93
144. N 27x31'47" W 169.08 feet; | 187. N 60x10'12" W 91.32 feet;
94
145. N 25x20'37" W 190.07 feet; | 188. N 72x23'57" W 284.72 feet;
95
146. N 27x40'18" W 329.72 feet; | 189. N 66x43'26" W 289.75 feet;
96
147. N 28x56'10" W 330.72 feet; | 190. N 71x49'29" W 317.90 feet;
97
148. N 24x33'34" W 60.51 feet; | 191. N 69x12'03" W 238.91 feet;
98
149. N 29x27'35" W 208.29 feet; | 192. N 64x15'14" W 72.27 feet;
99
150. N 28x05'26" W 247.46 feet; | 193. S 65x27'32" W 40.27 feet;
100
151. N 23x44'10" W 163.83 feet; | 194. N 74x15'53" W 194.46 feet;
101
152. N 13x09'48" W 254.49 feet; | 195. N 73x49'49" W 290.50 feet;
102
153. N 19x22'18" W 307.39 feet; | 196. N 72x33'14" W 374.10 feet;
103
154. N 21x47'25" W 159.63 feet; | 197. N 67x46'21" W 342.36 feet;
104
155. N 30x33'33" W 99.94 feet; | 198. N 57x56'05" W 76.94 feet;
105
156. N 29x12'13" W 207.55 feet; | 199. N 87x47'11" W 87.90 feet;
106
157. N 31x55'33" W 235.86 feet; |200. N 72x42'55" W 288.96 feet;
107
158. N 28x51'47" W 106.13 feet; | 201. N 71x19'03" W 300.30 feet;
108
159. N 36x40'00" W 174.32 feet; | 202. N 80x29'32" W 203.62 feet;
109
160. N 02x47'21" E 19.11 feet; | 203. S 89x12'33" W 61.22 feet;
110
161. N 43x43'57" W 240.40 feet; | 204. N 70x29'19" W 104.61 feet;
111
162. N 41x01'16" W 304.70 feet; | 205. N 79x25'58" W 67.02 feet;
112
163. N 46x54'46" W 122.65 feet; | 206. N 80x35'31" W 373.72 feet;
113
164. N 40x49'49" W 90.29 feet; | 207. N 80x52'09" W 380.68 feet;
114
165. N 51x59'40" W 174.20 feet; | 208. N 77x30'29" W 200.60 feet;
115
166. N 44x21'26" W 78.79 feet; | 209. S 80x07'35" W 41.78 feet;
116
167. N 54x41'29" W 220.08 feet; | 210. N 68x08'20" W 43.73 feet;
117
168. N 53x16'11" W 329.75 feet; | 211. N 82x47'20" W 337.50 feet;
118
169. N 61x51'41" W 110.58 feet; | 212. N 78x02'35" W 194.88 feet;
119
170. N 52x54'43" W 215.67 feet; | 213. N 77x39'54" W 170.67 feet;
120
171. N 58x08'36" W 153.28 feet; | 214. N 77x07'59" W 330.55 feet;
121
172. N 59x29'55" W 174.49 feet; | 215. N 79x02'44" W 201.15 feet;
122
173. N 56x21'47" W 191.68 feet; |216. N 70x18'48" W 173.92 feet; 217. N 78x14'27" W 273.38 feet; | 260. N 26x21'53" W 373.91 feet;
123
218. N 86x10'16" W 121.38 feet; | 261. N 30x13'30" W 285.83 feet;
124
219. N 56x59'20" W 23.64 feet; | 262. N 23x37'13" W 44.79 feet;
125
220. N 77x12'59" W 426.70 feet; | 263. N 32x55'17" W 111.43 feet;
126
221. N 83x15'03" W 185.75 feet; | 264. N 70x24'21" W 45.64 feet;
127
222. N 73x51'47" W 182.15 feet; | 265. N 38x36'29" W 28.58 feet;
128
223. N 71x13'45" W 167.21 feet; | 266. N 27x45'40" W 98.67 feet;
129
224. S 75x37'59" W 30.89 feet; | 267. N 46x12'44" W 44.96 feet;
130
225. N 71x33'44" W 234.05 feet; | 268. N 24x49'30" W 178.43 feet;
131
226. N 80x43'52" W 137.24 feet; | 269. N 05x35'47" E 26.71 feet;
132
227. N 69x41'51" W 273.22 feet; | 270. N 22x59'42" W 38.82 feet;
133
228. N 70x43'07" W 254.91 feet; | 271. N 10x02'49" E 30.61 feet;
134
229. N 66x56'08" W 301.42 feet; | 272. N 19x34'05" W 114.65 feet;
135
230. N 63x53'15" W 256.28 feet; | 273. N 05x33'59" E 13.45 feet;
136
231. N 58x33'26" W 202.83 feet; | 274. N 12x59'57" W 110.34 feet;
137
232. N 61x51'11" W 184.76 feet; | 275. N 01x10'59" E 216.95 feet;
138
233. N 52x03'07" W 236.22 feet; | 276. N 07x13'33" E 110.78 feet;
139
234. N 59x50'41" W 424.43 feet; | 277. N 06x00'55" E 131.88 feet;
140
235. N 57x02'33" W 230.68 feet; | 278. N 12x01'16" E 173.06 feet;
141
236. N 48x19'51" W 103.33 feet; | 279. N 04x06'19" W 44.77 feet;
142
237. N 40x22'48" W 238.16 feet; | 280. N 34x06'19" E 126.69 feet;
143
238. N 27x29'10" W 445.07 feet; | 281. N 40x46'38" E 329.61 feet;
144
239. N 27x28'12" W 417.56 feet; | 282. N 27x01'26" E 173.94 feet;
145
240. N 23x53'28" W 462.72 feet; | 283. N 46x34'13" E 311.34 feet;
146
241. N 20x07'44" W 182.40 feet; | 284. N 46x36'53" E 361.75 feet;
147
242. N 02x09'48" W 182.40 feet; | 285. N 57x24'33" E 118.71 feet;
148
243. N 45x05'17" W 66.80 feet; |286. N 52x19'49" E 242.35 feet;
149
244. N 24x47'08" W 167.79 feet; | 287. N 47x03'21" E 177.59 feet;
150
245. N 04x37'48" E 25.09 feet; | 288. N 52x11'08" E 276.80 feet;
151
246. N 25x09'10" W 194.51 feet; | 289. N 52x23'33" E 387.60 feet;
152
247. N 47x03'42" W 36.76 feet; | 290. N 39x39'32" E 300.47 feet;
153
248. N 23x12'08" W 208.06 feet; | 291. N 24x24'38" E 351.30 feet;
154
249. N 31x51'35" W 213.36 feet; | 292. N 18x55'03" E 170.32 feet;
155
250. N 25x18'01" W 275.95 feet; | 293. N 16x04'01" E 220.64 feet;
156
251. N 22x57'02" W 335.59 feet; | 294. N 27x29'02" E 177.93 feet;
157
252. N 35x58'44" W 89.13 feet; | 295. N 33x39'19" E 182.00 feet;
158
253. N 24x17'16" W 160.88 feet; | 296. N 44x33'29" E 266.80 feet;
159
254. N 75x21'26" W 17.52 feet; | 297. N 37x44'11" E 162.18 feet;
160
255. N 27x01'17" W 188.36 feet; | 298. N 39x45'24" E 191.62 feet;
161
256. N 13x08'58" W 227.87 feet; | 299. N 44x11'35" E 141.82 feet;
162
257. N 40x21'42" W 136.76 feet; | 300. N 49x35'13" E 289.05 feet;
163
258. N 24x24'56" W 197.69 feet; | 301. N 67x47'17" E 434.12 feet;
164
259. N 23x37'41" W 184.07 feet; |302. N 50x05'56" E 187.21 feet; 303. N 53x46'23" E 313.82 feet; | 345. N 01x57'51" W 319.75 feet;
165
304. N 57x52'30" E 229.52 feet; | 346. N 01x20'24" W 243.11 feet;
166
305. N 34x44'43" E 240.98 feet; | 347. N 09x08'02" E 139.88 feet;
167
306. N 13x51'35" E 139.72 feet; | 348. N 13x07'32" W 209.36 feet;
168
307. N 30x29'51" E 218.39 feet; | 349. N 06x26'13" W 175.51 feet;
169
308. N 09x00'09" E 310.43 feet; | 350. N 05x37'45" W 293.41 feet;
170
309. N 03x29'17" E 364.22 feet; | 351. N 06x34'59" W 217.59 feet;
171
310. N 21x07'35" E 112.02 feet; | 352. N 07x47'48" W 290.66 feet;
172
311. N 25x42'13" E 133.57 feet; | 353. N 10x41'30" W 267.70 feet;
173
312. N 45x58'18" E 53.38 feet; | 354. N 04x47'01" W 72.08 feet;
174
313. N 70x19'59" E 51.98 feet; | 355. N 14x28'47" W 234.20 feet;
175
314. N 37x15'32" E 182.58 feet; | 356. N 00x19'43" W 116.62 feet;
176
315. N 15x23'58" E 83.49 feet; | 357. N 07x44'46" W 279.97 feet;
177
316. N 15x42'01" E 261.08 feet; | 358. N 11x32'18" W 356.71 feet;
178
317. N 36x24'20" W 51.58 feet; | 359. N 11x07'49" W 213.28 feet;
179
318. N 15x15'01" E 196.32 feet; | 360. N 14x30'09" W 272.42 feet;
180
319. N 13x42'25" W 206.28 feet; | 361. N 06x36'37" W 286.80 feet;
181
320. N 32x40'58" E 42.13 feet; | 362. N 08x28'38" W 238.45 feet;
182
321. N 32x31'26" E 214.62 feet; | 363. N 17x03'40" W 151.67 feet;
183
322. N 44x06'21" E 17.67 feet; | 364. N 09x18'29" W 342.55 feet;
184
323. N 30x59'00" E 115.35 feet; | 365. N 14x40'23" W 256.29 feet;
185
324. N 25x35'07" E 44.46 feet; | 366. N 14x18'03" W 363.43 feet;
186
325. N 18x27'29" E 109.88 feet; | 367. N 11x45'38" E 206.67 feet;
187
326. N 22x50'29" E 131.46 feet; | 368. N 41x54'52" E 321.85 feet;
188
327. N 05x32'17" E 162.37 feet; | 369. N 63x25'44" E 273.18 feet;
189
328. N 01x04'56" W 188.48 feet; | 370. S 74x04'12" E 474.64 feet;
190
329. N 08x30'21" W 126.56 feet; |371. N 88x03'52" E 416.71 feet;
191
330. N 16x47'18" E 224.07 feet; | 372. S 66x20'00" E 572.97 feet;
192
331. N 30x43'44" E 88.32 feet; | 373. S 80x24'37" E 222.10 feet;
193
332. N 41x35'58" E 181.80 feet; | 374. S 89x46'40" E 349.53 feet;
194
333. N 41x26'54" E 4.11 feet; | 375. N 82x26'19" E 391.23 feet;
195
334. N 62x19'06" E 53.47 feet; | 376. N 66x00'59" E 497.08 feet;
196
335. N 42x17'15" E 75.16 feet; | 377. N 58x38'57" E 276.46 feet
197
336. N 42x33'08" E 98.01 feet; | to a standard California State Lands Com
198
337. N 14x53'12" E 16.50 feet; | mission brass tablet set in concrete
199
338. N 05x14'15" W 25.31 feet; | stamped "N-MID-CAL 1981" having Califor- 339. N 39x32'31" E 98.80 feet; | nia Coordinate System, Zone 6 coordin- 340. N 04x53'40" W 145.92 feet; | ates of x = 2,472,838.61 feet and y =
200
341. N 09x04'54" E 362.65 feet; | 432,666.01 feet, said tablet being
201
342. N 14x50'01" E 304.17 feet; | located on the westerly boundary of the
202
343. N 01x28'58" E 71.48 feet; | parcels of land taken by condemnation
203
344. N 02x08'33" E 176.53 feet; |in United States v. 243.25 Acres of Land, Civil No. 3505-SD Smith (S.D. Cal. 1973) and United States, v. 67.57 Acres of Land, Civil No. 5925-Phx-Craig (D. Ariz. 1972); thence leaving said centerline of the former channel,
204
378. Northeasterly 278.84 feet along said westerly boundary, being a fixed and limiting boundary of the herein described parcel, on the arc of a curve, concave westerly, having a radius of 15,350 feet, to a point on said curve subtended by a chord which bears N 06x51'25" E 278.83 feet, said point being monumented with a standard California State Lands Commission brass tablet set in concrete, stamped 'N-RB-Cal 1981", having California Coordinate System Zone 6 coordinates of x = 2,472,871.90 feet and y = 432,942.85 feet, from which California State Lands Commission Monument "PI-14" bears N 29x11'26" E 613.52 feet, as said monument is shown on said map; thence downstream along a fixed and limiting boundary of the herein described parcel, the following 27 courses:
205
379. S 47x59'19" W 68.50 feet;
206
380. S 60x07'46" W 395.55 feet;
207
381. S 63x03'23" W 406.08 feet;
208
382. S 82x42'48" W 307.48 feet;
209
383. N 87x47'25" W 311.23 feet;
210
384. N 73x24'25" W 206.60 feet;
211
385. N 58x24'42" W 393.27 feet;
212
386. N 67x05'29" W 259.46 feet;
213
387. S 84x46'40" W 186.77 feet;
214
388. S 73x38'32" W 305.36 feet;
215
389. N 68x41'39" W 214.67 feet;
216
390. N 85x22'33" W 272.89 feet;
217
391. S 75x15'23" W 216.12 feet;
218
392. S 50x14'50" W 139.18 feet;
219
393. S 43x55'50" W 265.21 feet;
220
394. S 46x19'31" W 275.14 feet;
221
395. S 15x12'01" W 206.91 feet;
222
396. S 26x13'45" E 157.09 feet;
223
397. S 19x00'46" E 279.67 feet;
224
398. S 29x05'57" E 98.41 feet;
225
399. S 18x06'17" E 215.54 feet;
226
400. S 06x52'21" E 382.84 feet;
227
401. S 05x18'02" E 273.86 feet;
228
402. S 08x14'28" E 324.68 feet;
229
403. S 13x16'00" E 308.30 feet;
230
404. S 09x19'42" E 216.36 feet;
231
405. S 11x35'03" E 233.81 feet, to a point having California Coordinate System, Zone 6 coordinates of x = 2,469,569.55 feet and y = 429,714.41 feet; thence,
232
406. S 78x09'23" W 18 feet, more or less, to the special meander corner for Section 1, T10S, R21E, SBM, as shown on the United States Bureau of Land Management plat accepted October, 1961; thence downstream along a fixed and limiting boundary of the herein described parcel, the following 21 courses:
233
407. S 11x50'34" E 659.97 feet to United States Bureau of Land Management monument AP 1
234
408. S 06x05'34" E 745.77 feet to United States Bureau of Land Management monument AP 2
235
409. S 00x09'26" W 461.98 feet to United States Bureau of Land Management monument AP 3
236
410. S 00x50'34" E 329.98 feet to United States Bureau of Land Management monument AP 4
237
411. S 03x20'26" W 454.72 feet to United States Bureau of Land Management monument AP 5 412. S 06x54'26" W 514.78 feet to United States Bureau of Land Management monument AP 6
238
413. S 34x39'26" W 257.39 feet to United States Bureau of Land Management monument AP 7
239
414. S 14x39'26" W 296.99 feet to United States Bureau of Land Management monument AP 8
240
415. S 42x54'26" W 567.57 feet to United States Bureau of Land Management monument AP 9
241
416. S 52x39'26" W 237.59 feet to United States Bureau of Land Management monument AP 10
242
417. S 36x54'26" W 389.38 feet to United States Bureau of Land Management monument AP 11
243
418. S 02x09'26" W 329.98 feet to United States Bureau of Land Management monument AP 12
244
419. S 11x39'26" W 356.38 feet to United States Bureau of Land Management monument AP 13
245
420. S 06x05'34" E 362.98 feet to United States Bureau of Land Management monument AP 14
246
421. S 15x20'34" E 448.78 feet to United States Bureau of Land Management monument AP 15
247
422. S 01x20'34" E 230.99 feet to United States Bureau of Land Management monument AP 16
248
423. S 20x24'26" W 428.98 feet to United States Bureau of Land Management monument AP 17
249
424. S 16x54'26" W 593.97 feet to United States Bureau of Land Management monument AP 18
250
425. S 27x39'26" W 415.78 feet to United States Bureau of Land Management monument AP 19
251
426. S 30x39'26" W 230.99 feet;
252
427. S 61x18'26" W 392.02 feet, to the Witness Point between Sections 12 and 13, T10S, R21E, SBM, as shown on said plat, accepted October, 1961; thence continuing downstream along a fixed and limiting boundary,
253
428. S 54x06'09" W 841 feet, more or less, to the Witness Point between Sections 13 and 14, T10S, R21E, SBM, as shown on said plat, accepted October, 1961; thence continuing downstream along a fixed and limiting boundary of the herein described parcel, the following two courses:
254
429. S 22x09'26" W 475.18 feet;
255
430. S 30x33'26" W 1207.08 feet, to the special meander corner on the extension of the East 1/16 line of Section 14, T10S, R21E, SBM, as shown on said plat, accepted October, 1961; thence,
256
431. S 44x09'26" W 1476.35 feet, to the special meander corner on the extension of the East-West center line of Section 14, T10S, R22E, SBM, as shown on said plat; thence continuing downstream along a fixed and limiting boundary of the herein described parcel, the following five courses:
257
432. S 48x39'26" W 950.36 feet;
258
433. S 07x24'26" W 329.98 feet;
259
434. S 38x54'26" W 475.18 feet;
260
435. S 07x24'26" W 600.57 feet;
261
436. S 06x56'34" E 441.52 feet, to the meander corner between Sections 14 and 23, T10S, R21E, SBM, as shown on said plat accepted October, 1961; thence, 437. N 83x03'26" E 14 feet, more or less, to a point having California Coordinate System, Zone 6 coordinates of x = 20,464,185.22 feet and y = 416,378,36 feet; thence, continuing downstream along a fixed and limiting boundary the following ten courses:
262
438. S 22x59'42" E 50.57 feet;
263
439. S 05x35'47" W 53.42 feet;
264
440. S 19x17'00" E 81.15 feet;
265
441. S 28x44'01" E 98.45 feet;
266
442. S 46x12'44" E 89.91 feet;
267
443. S 00x54'42" E 38.96 feet;
268
444. S 38x36'29" E 57.16 feet;
269
445. S 70x24'21" E 91.28 feet;
270
446. S 23x37'13" E 89.57 feet;
271
447. S 32x17'14" E 170.27 feet, to a point having California Coordinate System, Zone 6 coordinates of x = 2,464,587.93 feet and y = 415,713.24 feet; thence,
272
448. S 22x34'09" E 73 feet, more or less, to a point being the northeasterly corner of Parcel 2, as said Parcel 2 is described in the deed recorded in Book 1423 of Official Records, page 1774, in the Office of the County Recorder of Imperial County, State of California; thence,
273
449. S 22x34'09" E 107 feet, more or less, to a point having California Coordinate System, Zone 6 coordinates of x = 2,464,656.97 feet and y = 415,547.13 feet; thence, the following 14 courses:
274
450. S 19x52'01" E 161.22 feet;
275
451. S 10x45'08" E 150.08 feet;
276
452. S 19x26'18" E 188.71 feet;
277
453. S 22x09'00" E 187.41 feet;
278
454. S 29x58'22" E 202.91 feet;
279
455. S 22x45'08" E 214.61 feet;
280
456. S 28x14'06" E 224.50 feet;
281
457. S 75x21'26" E 35.05 feet;
282
458. S 06x53'21" W 31.35 feet;
283
459. S 38x50'29" E 73.95 feet;
284
460. S 33x57'12" E 104.47 feet;
285
461. S 10x37'44" E 105.61 feet;
286
462. S 21x52'27" E 165.04 feet;
287
463. S 24x30'08" E 342.15 feet, to a point having California Coordinate System, Zone 6 coordinates of x = 2,465,521.55 feet and y = 413,572.51 feet; thence,
288
464. S 26x07'31" E 14 feet, more or less, to a point being the southeasterly corner of said Parcel 2; thence,
289
465. S 26x07'31" E 210 feet, more or less, to a point having California Coordinate System Zone 6 coordinates of x = 2,465,620.31 feet and y = 413,371.14 feet; thence, the following 55 courses:
290
466. S 26x00'19" E 171.65 feet;
291
467. S 47x03'42" E 73.52 feet;
292
468. S 22x51'02" E 179.82 feet;
293
469. S 04x37'48" W 50.17 feet;
294
470. S 27x58'13" E 111.98 feet;
295
471. S 45x05'17" E 133.59 feet;
296
472. S 09x12'54" W 49.89 feet;
297
473. S 23x46'02" E 206.79 feet;
298
474. S 20x19'41" E 209.44 feet;
299
475. S 18x05'12" E 233.53 feet;
300
476. S 26x51'02" E 250.32 feet;
301
477. S 23x56'13" E 170.98 feet;
302
478. S 29x41'34" E 147.69 feet;
303
479. S 11x42'23" E 98.92 feet;
304
480. S 32x35'31" E 124.16 feet;
305
481. S 30x53'45" E 120.22 feet;
306
482. S 43x07'02" E 256.53 feet;
307
483. S 48x19'51" E 206.65 feet;
308
484. S 67x52'30" E 183.87 feet;
309
485. S 71x21'51" E 136.25 feet;
310
486. S 61x15'46" E 196.34 feet;
311
487. S 54x59'08" E 212.50 feet;
312
488. S 55x04'36" E 191.73 feet;
313
489. S 61x25'23" E 161.91 feet;
314
490. S 52x43'26" E 189.29 feet;
315
491. S 62x32'05" E 229.42 feet;
316
492. S 24x40'26" W 24.12 feet;
317
493. S 31x03'06" E 16.75 feet;
318
494. N 51x04'31" E 31.74 feet;
319
495. S 66x58'16" E 156.62 feet;
320
496. S 63x57'36" E 190.86 feet;
321
497. S 70x39'06" E 283.46 feet;
322
498. S 67x09'09" E 279.07 feet;
323
499. N 79x03'56" E 50.29 feet;
324
500. S 71x21'30" E 97.26 feet;
325
501. S 77x39'39" E 196.21 feet;
326
502. S 72x52'22" E 211.00 feet;
327
503. S 71x11'05" E 169.14 feet;
328
504. N 88x21'14" E 132.27 feet;
329
505. S 79x17'01" E 190.11 feet;
330
506. S 75x43'12" E 311.68 feet;
331
507. S 56x59'20" E 47.28 feet;
332
508. N 79x03'56" E 33.53 feet;
333
509. S 76x25'43" E 351.79 feet;
334
510. S 61x59'02" E 99.95 feet;
335
511. S 78x10'25" E 224.11 feet;
336
512. S 79x43'39" E 181.74 feet;
337
513. S 78x05'30" E 151.35 feet;
338
514. S 75x07'34" E 191.59 feet;
339
515. S 81x32'25" E 212.22 feet;
340
516. S 78x59'26" E 180.24 feet;
341
517. S 87x17'16" E 140.12 feet;
342
518. S 68x08'20" E 87.47 feet;
343
519. N 80x07'35" E 83.57 feet;
344
520. S 80x39'14" E 136.27 feet, to a point having California Coordinate System Zone 6 coordinates of x = 2,472,454.64 feet and y = 409,154.43 feet; thence,
345
521. S 80x14'07" E 107 feet, more or less, to the true point for the meander corner of the westerly line of fractional Section 30, T10S, R22E, SBM, as said meander corner is shown on the United States Bu-
346
reau of Land Management plat, accepted July, 1963; thence downstream along a fixed and limiting boundary of the herein described parcel, the following six courses:
347
522. S 79x30'46" E 676.47 feet;
348
523. S 78x54'46" E 609.81 feet;
349
524. S 69x05'46" E 277.19 feet;
350
525. S 75x51'46" E 209.87 feet;
351
526. S 64x51'46" E 317.45 feet;
352
527. S 71x28'46" E 374.20 feet, to the true point for the special meander corner at the termination of the division line in said Section 30, as shown on said plat; thence,
353
528. N 17x19'32" E 3 feet, more or less, to a point having California Coordinate System, Zone 6 coordinates of x = 2,474,929.38 feet and y = 408,495.31 feet; thence the following 63 courses:
354
529. S 72x40'28" E 48.56 feet;
355
530. S 72x44'56" E 272.15 feet;
356
531. S 76x31'58" E 278.42 feet;
357
532. S 70x49'35" E 238.47 feet;
358
533. S 70x17'22" E 299.32 feet;
359
534. S 68x27'11" E 309.01 feet;
360
535. S 72x00'50" E 312.35 feet;
361
536. S 53x14'15" E 54.49 feet;
362
537. S 74x52'18" E 103.07 feet;
363
538. S 66x22'25" E 160.16 feet;
364
539. S 31x14'08" E 22.41 feet;
365
540. S 68x46'07" E 121.72 feet;
366
541. S 69x49'10" E 306.13 feet;
367
542. S 66x14'00" E 322.42 feet;
368
543. S 63x00'21" E 301.63 feet;
369
544. S 58x19'24" E 137.83 feet;
370
545. S 64x23'36" E 374.30 feet;
371
546. S 58x39'16" E 183.74 feet;
372
547. S 64x07'26" E 125.36 feet;
373
548. S 40x17'37" E 24.04 feet;
374
549. S 63x33'22" E 124.65 feet;
375
550. S 55x37'48" E 257.52 feet; 551. S 68x31'00" E 87.95 feet;
376
552. S 56x32'33" E 149.69 feet;
377
553. S 57x13'54" E 219.68 feet;
378
554. S 52x33'43" E 91.99 feet;
379
555. S 75x39'40" E 30.77 feet;
380
556. S 51x17'24" E 169.35 feet;
381
557. S 54x59'34" E 156.48 feet;
382
558. S 50x10'27" E 260.94 feet;
383
559. S 49x36'24" E 258.49 feet;
384
560. S 44x34'13" E 163.10 feet;
385
561. S 37x26'05" E 300.23 feet;
386
562. S 42x48'59" E 170.19 feet;
387
563. S 33x29'47" E 265.71 feet;
388
564. S 33x01'00" E 255.36 feet;
389
565. S 29x18'07" E 246.50 feet;
390
566. S 33x35'14" E 95.73 feet;
391
567. S 20x47'02" E 113.97 feet;
392
568. S 20x23'07" E 207.22 feet;
393
569. S 10x30'21" E 96.42 feet;
394
570. S 13x36'45" E 235.13 feet;
395
571. S 19x38'33" E 122.74 feet;
396
572. S 25x57'07" E 104.91 feet;
397
573. S 27x15'17" E 228.13 feet;
398
574. S 36x19'37" E 128.72 feet;
399
575. S 24x33'34" E 121.02 feet;
400
576. S 29x04'39" E 145.68 feet;
401
577. S 26x59'27" E 265.97 feet;
402
578. S 25x47'03" E 364.93 feet;
403
579. S 18x56'14" E 81.90 feet;
404
580. S 30x01'37" E 91.68 feet;
405
581. S 24x08'33" E 324.37 feet;
406
582. S 21x12'50" E 302.39 feet;
407
583. S 26x21'17" E 109.66 feet;
408
584. S 17x44'09" E 132.95 feet;
409
585. S 14x17'33" E 225.66 feet;
410
586. S 08x53'11" E 181.58 feet;
411
587. S 01x08'01" E 92.51 feet;
412
588. S 05x10'25" E 229.55 feet;
413
589. S 02x20'32" W 225.35 feet;
414
590. S 09x55'39" W 285.43 feet;
415
591. S 17x15'36" W 182.74 feet;
416
592. S 29x35'16" W 133.46 feet, to a point having California Coor-
417
dinate System, Zone 6 coordinates of x = 2,482,137.72 feet and y = 400,326.43 feet; thence,
418
593. N 60x24'44" W 15 feet, more or less, to the meander corner between Section 32, T10S, R22E, SBM and Section 5, T11S, R22E, SBM, as shown on the United States Bureau of Land Management plat accepted May, 1962; thence downstream along a fixed and limiting boundary of the herein described parcel, the following 21 courses:
419
594. S 44x08'31" W 270.48 feet;
420
595. S 61x23'31" W 738.88 feet;
421
596. S 64x38'31" W 263.88 feet;
422
597. S 67x38'31" W 402.42 feet;
423
598. S 54x38'31" W 296.87 feet;
424
599. S 47x53'31" W 257.28 feet;
425
600. S 42x23'31" W 527.76 feet;
426
601. S 44x53'31" W 329.85 feet;
427
602. S 34x23'31" W 250.69 feet;
428
603. S 49x38'31" W 659.70 feet;
429
604. S 52x23'31" W 323.25 feet;
430
605. S 58x23'31" W 415.61 feet;
431
606. S 56x08'31" W 171.52 feet;
432
607. S 59x34'31" W 286.31 feet;
433
608. S 57x08'31" W 125.34 feet;
434
609. S 63x53'31" W 369.43 feet;
435
610. S 38x53'31" W 765.25 feet;
436
611. S 15x36'29" E 237.49 feet;
437
612. S 21x21'29" E 435.40 feet;
438
613. S 11x06'29" E 316.66 feet;
439
614. S 22x35'29" E 625 feet, more or less, to the point for the meander corner between Sections 6 and 7, T11S, R22E, SBM, as shown on said plat; thence
440
615. N 65x19'54" E 15 feet, more or less, to a point having California Coordinate System, Zone 6 coordinates of x = 2,477,639.57 feet and y = 394,914.38 feet; thence the following 75 courses:
441
616. S 24x40'06" E 15.23 feet;
442
617. S 30x48'33" E 201.41 feet;
443
618. S 32x35'32" E 240.99 feet;
444
619. S 41x33'23" E 64.16 feet;
445
620. S 06x27'39" E 41.95 feet;
446
621. S 44x47'21" E 42.30 feet;
447
622. S 31x10'03" E 290.43 feet;
448
623. S 30x20'17" E 193.21 feet;
449
624. S 35x31'37" E 230.58 feet;
450
625. S 33x32'33" E 109.82 feet;
451
626. S 31x07'03" E 291.64 feet;
452
627. S 35x58'44" E 110.62 feet;
453
628. S 29x31'41" E 141.28 feet;
454
629. S 36x50'40" E 193.40 feet;
455
630. S 49x35'07" E 90.66 feet;
456
631. S 30x07'37" E 233.52 feet;
457
632. S 31x53'02" E 251.15 feet;
458
633. S 36x13'48" E 203.04 feet;
459
634. S 46x06'54" E 83.21 feet;
460
635. S 71x32'41" E 26.63 feet;
461
636. S 37x18'41" E 91.38 feet;
462
637. S 34x03'47" E 113.30 feet;
463
638. S 26x18'12" E 105.77 feet;
464
639. S 41x04'58" E 109.72 feet;
465
640. S 31x06'48" E 112.40 feet;
466
641. S 44x54'33" E 116.06 feet;
467
642. S 26x40'57" W 28.35 feet;
468
643. S 33x31'01" E 219.44 feet;
469
644. S 44x43'41" E 147.52 feet;
470
645. S 35x46'12" E 92.93 feet;
471
646. S 40x14'44" E 131.38 feet;
472
647. S 07x04'43" W 41.30 feet;
473
648. S 69x06'50" E 25.81 feet;
474
649. S 38x04'24" E 119.03 feet;
475
650. S 42x30'44" E 98.39 feet;
476
651. S 31x35'31" E 120.76 feet;
477
652. S 34x30'30" E 195.40 feet;
478
653. S 28x01'14" E 117.07 feet;
479
654. S 32x38'46" E 156.49 feet;
480
655. S 11x54'21" E 34.12 feet;
481
656. S 39x20'10" E 130.18 feet;
482
657. S 34x12'23" E 153.60 feet;
483
658. S 21x29'38" E 46.34 feet;
484
659. S 47x44'29" E 81.61 feet;
485
660. S 30x52'09" E 78.84 feet;
486
661. S 57x36'19" E 106.99 feet;
487
662. S 37x14'12" E 256.55 feet;
488
663. S 39x58'33" E 258.69 feet;
489
664. S 45x46'13" E 91.01 feet;
490
665. S 31x33'36" E 94.10 feet;
491
666. S 57x50'57" W 26.33 feet;
492
667. S 07x09'59" E 20.60 feet;
493
668. S 78x52'10" E 63.92 feet;
494
669. S 07x28'16" E 22.99 feet;
495
670. S 32x48'30" E 160.95 feet;
496
671. S 24x10'21" E 195.83 feet;
497
672. S 30x32'33" E 247.57 feet;
498
673. S 31x56'13" E 71.89 feet;
499
674. S 03x23'22" E 32.31 feet;
500
675. S 32x31'22" E 188.29 feet;
501
676. S 28x02'01" E 196.47 feet;
502
677. S 18x34'38" E 110.90 feet;
503
678. S 11x10'23" E 66.47 feet;
504
679. S 33x58'06" E 59.38 feet;
505
680. S 02x15'15" W 31.52 feet;
506
681. S 27x25'03" E 115.12 feet;
507
682. S 19x18'42" E 76.05 feet;
508
683. S 01x27'20" E 26.77 feet;
509
684. S 17x11'36" E 236.98 feet;
510
685. S 10x46'23" E 62.38 feet;
511
686. S 18x31'39" E 99.70 feet;
512
687. S 21x27'16" E 182.39 feet;
513
688. S 48x21'04" E 40.40 feet;
514
689. S 07x51'38" W 195.38 feet;
515
690. S 09x17'17" W 123.85 feet, to a point having California Coordinate System, Zone 6 coordinates of x = 2,482,240.84 feet and y = 387,264.05 feet as said point is shown on the Davis Lake Area Project Administrative Maps, hereinbefore described; thence, 691. S 77x38'10" E 213.25 feet, to a point on the center line of the former channel of the Colorado
516
River, said point also being the point of beginning of the herein described parcel of land.
517
[[DCQ!]] Bearings and distances in the above description are based on the California Coordinate System, Zone 6.
EXHIBIT B
518
A parcel of land in the former channel of the Colorado River in Imperial County, California, and Yuma County, Arizona, adjacent to Township 1 South, Range 24 West, Gila and Salt River Meridian; Township 2 South, Range 24 West, Gila and Salt River Meridian; Township 2 South, Range 23 West, Gila and Salt River Meridian, more particularly described as follows:
519
BEGINNING at a point on the center line of the former channel of the Colorado River having California Coordinate System, Zone 6, coordinates of x = 2,482,449.14 feet and y = 387,218.39 feet, from which United States Water and Power Resources Service (formerly United States Bureau of Reclamation) Station RUIN bears N 56x27'07" E 733.37 feet, as said points are shown on the map entitled, "Davis Lake Area Project Administrative Maps", said map approved October 28, 1976 by the California State Lands Commission, and being on file at the offices of said Commission, and being on file at the offices of said Commission in Sacramento, California; thence from said point of beginning, upstream along the center line of the former channel of the Colorado River, said center line being a fixed and limiting boundary of the herein described parcel, the following 377 courses:
520
1. N 06x11'02" E 91.76 feet;
521
2. N 54x12'32" E 18.78 feet;
522
3. N 12x45'10" E 174.75 feet;
523
4. N 12x53'00" W 103.53 feet;
524
5. N 05x09'17" W 146.10 feet;
525
6. N 13x58'10" E 87.64 feet;
526
7. N 05x10'13" W 66.53 feet;
527
8. N 23x31'10" E 26.95 feet; 9. N 36x32'17" E 111.82 feet;
528
10. N 19x17'18" W 275.69 feet;
529
11. N 04x49'28" W 45.39 feet;
530
12. N 25x30'26" W 64.01 feet;
531
13. N 21x45'19" W 170.09 feet;
532
14. N 02x16'16" E 15.76 feet;
533
15. N 26x25'14" W 142.77 feet;
534
16. N 19x59'28" W 151.68 feet; 17. N 32x00'03" W 345.18 feet;
535
18. N 03x24'14" W 16.15 feet;
536
19. N 34x25'41" W 352.66 feet;
537
20. N 30x34'31" W 260.03 feet;
538
21. N 36x46'58" W 310.64 feet;
539
22. N 41x48'53" W 306.12 feet;
540
23. N 40x25'19" W 290.08 feet;
541
24. N 44x30'49" W 169.94 feet;
542
25. N 30x52'29" W 39.42 feet;
543
26. N 47x44'12" W 40.80 feet;
544
27. N 21x30'40" W 23.17 feet;
545
28. N 34x34'58" W 209.82 feet;
546
29. N 34x44'50" W 317.95 feet;
547
30. N 34x44'47" W 291.32 feet;
548
31. N 37x31'17" W 279.41 feet;
549
32. N 36x05'21" W 275.56 feet;
550
33. N 37x39'47" W 240.96 feet;
551
34. N 32x03'44" W 164.74 feet;
552
35. N 26x41'11" E 14.17 feet;
553
36. N 37x08'14" W 33.36 feet;
554
37. N 35x36'16" W 86.74 feet;
555
38. N 39x41'49" W 66.46 feet;
556
39. N 37x12'59" W 163.13 feet;
557
40. N 28x19'51" W 220.22 feet;
558
41. N 34x33'42" W 149.82 feet;
559
42. N 39x16'54" W 17.91 feet;
560
43. N 46x59'54" W 65.69 feet;
561
44. N 36x45'41" W 175.14 feet;
562
45. N 30x48'13" W 247.89 feet;
563
46. N 35x33'18" W 233.54 feet;
564
47. N 42x45'30" W 301.59 feet;
565
48. N 29x31'50" W 70.64 feet;
566
49. N 39x15'12" W 181.84 feet;
567
50. N 34x08'26" W 287.28 feet;
568
51. N 36x56'15" W 341.54 feet;
569
52. N 33x51'40" W 248.93 feet;
570
53. N 30x53'53" W 227.36 feet;
571
54. N 28x52'32" W 133.47 feet;
572
55. N 41x33'10" W 32.08 feet;
573
56. N 32x30'33" W 214.79 feet;
574
57. N 32x47'41" W 159.63 feet;
575
58. N 41x44'15" W 149.07 feet;
576
59. N 51x38'10" W 15.67 feet;
577
60. N 29x44'55" W 238.30 feet;
578
61. N 25x49'43" W 111.43 feet;
579
62. N 09x13'34" W 69.07 feet;
580
63. N 21x53'52" W 147.48 feet;
581
64. N 65x05'19" W 9.15 feet;
582
65. N 32x30'38" W 38.27 feet;
583
66. N 21x01'27" W 83.19 feet;
584
67. N 10x39'51" E 44.53 feet;
585
68. N 02x15'38" W 45.67 feet;
586
69. N 44x22'08" W 27.00 feet;
587
70. N 20x34'25" W 93.00 feet;
588
71. N 18x23'16" W 48.78 feet;
589
72. N 16x26'02" W 95.55 feet;
590
73. N 04x26'34" W 49.11 feet;
591
74. N 08x54'12" W 109.59 feet;
592
75. N 45x00'45" W 15.45 feet;
593
76. N 15x52'18" W 46.11 feet;
594
77. N 23x50'06" E 50.55 feet;
595
78. N 06x27'18" W 28.68 feet;
596
79. N 29x30'20" W 14.62 feet;
597
80. N 15x29'04" E 39.92 feet;
598
81. N 28x23'27" E 42.72 feet;
599
82. N 23x04'47" E 132.80 feet;
600
83. N 47x17'33" E 256.64 feet;
601
84. N 48x40'23" E 89.15 feet;
602
85. N 52x50'14" E 286.63 feet;
603
86. N 59x57'29" E 156.23 feet;
604
87. N 62x51'03" E 103.67 feet;
605
88. N 60x52'13" E 166.51 feet;
606
89. N 57x00'27" E 53.17 feet;
607
90. N 57x43'27" E 326.93 feet;
608
91. N 68x38'25" E 38.74 feet;
609
92. N 45x44'50" E 25.05 feet;
610
93. N 60x53'25" E 148.11 feet;
611
94. N 52x28'50" E 136.72 feet;
612
95. N 53x48'33" E 194.46 feet;
613
96. N 53x11'16" E 49.55 feet;
614
97. N 80x15'07" E 22.12 feet;
615
98. N 50x13'23" E 181.66 feet;
616
99. N 69x57'50" E 40.08 feet;
617
100. N 34x56'12" E 24.41 feet;
618
101. N 50x47'14" E 202.15 feet;
619
102. N 61x59'40" E 50.34 feet; 103. N 47x49'50" E 49.76 feet;
620
104. N 48x09'42" E 163.97 feet;
621
105. N 50x09'37" E 112.15 feet;
622
106. N 27x22'23" E 134.94 feet;
623
107. N 47x51'44" E 124.47 feet;
624
108. N 46x01'44" E 142.53 feet;
625
109. N 39x04'50" E 180.94 feet;
626
110. N 45x09'21" E 189.68 feet;
627
111. N 39x57'52" E 156.08 feet;
628
112. N 43x26'27" E 199.19 feet;
629
113. N 52x12'27" E 221.41 feet;
630
114. N 50x29'55" E 152.42 feet;
631
115. N 52x54'27" E 179.48 feet;
632
116. N 62x15'35" E 213.37 feet;
633
117. N 68x45'32" E 55.26 feet;
634
118. N 67x29'40" E 76.60 feet;
635
119. N 65x41'07" E 165.43 feet;
636
120. N 67x14'09" E 294.39 feet;
637
121. N 64x24'36" E 128.78 feet;
638
122. N 53x03'32" E 106.15 feet;
639
123. N 70x17'39" E 35.29 feet;
640
124. N 73x29'13" E 147.47 feet;
641
125. N 59x19'13" E 74.01 feet;
642
126. N 30x28'52" E 18.53 feet;
643
127. N 60x22'22" E 71.20 feet;
644
128. N 18x45'56" E 28.50 feet;
645
129. N 39x20'12" E 181.32 feet;
646
130. N 15x18'44" E 22.87 feet;
647
131. N 34x48'05" E 113.34 feet;
648
132. N 01x37'33" E 25.20 feet;
649
133. N 20x03'20" E 279.59 feet;
650
134. N 08x48'55" E 494.65 feet;
651
135. N 06x07'16" W 329.64 feet;
652
136. N 01x08'01" W 46.25 feet;
653
137. N 12x04'58" W 216.22 feet;
654
138. N 02x16'55" E 41.56 feet;
655
139. N 12x25'25" W 199.17 feet;
656
140. N 27x14'52" W 38.46 feet;
657
141. N 20x48'06" W 242.26 feet;
658
142. N 19x51'45" W 337.38 feet;
659
143. N 24x07'19" W 226.77 feet;
660
144. N 27x31'47" W 169.08 feet;
661
145. N 25x20'37" W 190.07 feet;
662
146. N 27x40'18" W 329.72 feet;
663
147. N 28x56'10" W 330.72 feet;
664
148. N 24x33'34" W 60.51 feet;
665
149. N 29x27'35" W 208.29 feet;
666
150. N 28x05'26" W 247.46 feet;
667
151. N 23x44'10" W 163.83 feet;
668
152. N 13x09'48" W 254.49 feet;
669
153. N 19x22'18" W 307.39 feet;
670
154. N 21x47'25" W 159.63 feet;
671
155. N 30x33'33" W 99.94 feet;
672
156. N 29x12'13" W 207.55 feet;
673
157. N 31x55'33" W 235.86 feet;
674
158. N 28x51'47" W 106.13 feet;
675
159. N 36x40'00" W 174.32 feet;
676
160. N 02x47'21" E 19.11 feet;
677
161. N 43x43'57" W 240.40 feet;
678
162. N 41x01'16" W 304.70 feet;
679
163. N 46x54'46" W 122.65 feet;
680
164. N 40x49'49" W 90.29 feet;
681
165. N 51x59'40" W 174.20 feet;
682
166. N 44x21'26" W 78.79 feet;
683
167. N 54x41'29" W 220.08 feet;
684
168. N 53x16'11" W 329.75 feet;
685
169. N 61x51'41" W 110.58 feet;
686
170. N 52x54'43" W 215.67 feet;
687
171. N 58x08'36" W 153.28 feet;
688
172. N 59x29'55" W 174.49 feet;
689
173. N 56x21'47" W 191.68 feet;
690
174. S 89x23'45" W 20.87 feet;
691
175. N 62x40'51" W 144.58 feet;
692
176. N 60x27'35" W 329.61 feet;
693
177. N 58x43'43" W 350.72 feet;
694
178. N 49x48'54" W 206.44 feet;
695
179. N 71x14'37" W 266.43 feet;
696
180. N 67x56'20" W 72.52 feet;
697
181. N 64x05'13" W 230.11 feet;
698
182. N 68x36'52" W 337.96 feet;
699
183. N 68x46'07" W 60.86 feet;
700
184. N 57x31'28" W 62.02 feet;
701
185. N 69x12'17" W 194.71 feet;
702
186. N 74x52'18" W 51.54 feet;
703
187. N 60x10'12" W 91.32 feet;
704
188. N 72x23'57" W 284.72 feet; 189. N 66x43'26" W 289.75 feet;
705
190. N 71x49'29" W 317.90 feet;
706
191. N 69x12'03" W 238.91 feet;
707
192. N 64x15'14" W 72.27 feet;
708
193. S 65x27'32" W 40.27 feet;
709
194. N 74x15'53" W 194.46 feet;
710
195. N 73x49'49" W 290.50 feet;
711
196. N 72x33'14" W 374.10 feet;
712
197. N 67x46'21" W 342.36 feet;
713
198. N 57x56'05" W 76.94 feet;
714
199. N 87x47'11" W 87.90 feet;
715
200. N 72x42'55" W 288.96 feet;
716
201. N 71x19'03" W 300.30 feet;
717
202. N 80x29'32" W 203.62 feet;
718
203. S 89x12'33" W 61.22 feet;
719
204. N 70x29'19" W 104.61 feet;
720
205. N 79x25'58" W 67.02 feet;
721
206. N 80x35'31" W 373.72 feet;
722
207. N 80x52'09" W 380.68 feet;
723
208. N 77x30'29" W 200.60 feet;
724
209. S 80x07'35" W 41.78 feet;
725
210. N 68x08'20" W 43.73 feet;
726
211. N 82x47'20" W 337.50 feet;
727
212. N 78x02'35" W 194.88 feet;
728
213. N 77x39'54" W 170.67 feet;
729
214. N 77x07'59" W 330.55 feet;
730
215. N 79x02'44" W 201.15 feet;
731
216. N 70x18'48" W 173.92 feet;
732
217. N 78x14'27" W 273.38 feet;
733
218. N 86x10'16" W 121.38 feet;
734
219. N 56x59'20" W 23.64 feet;
735
220. N 77x12'59" W 426.70 feet;
736
221. N 83x15'03" W 185.75 feet;
737
222. N 73x51'47" W 182.15 feet;
738
223. N 71x13'45" W 167.21 feet;
739
224. S 75x37'59" W 30.89 feet;
740
225. N 71x33'44" W 234.05 feet;
741
226. N 80x43'52" W 137.24 feet;
742
227. N 69x41'51" W 273.22 feet;
743
228. N 70x43'07" W 254.91 feet;
744
229. N 66x56'08" W 301.42 feet;
745
230. N 63x53'15" W 256.28 feet;
746
231. N 58x33'26" W 202.83 feet;
747
232. N 61x51'11" W 184.76 feet;
748
233. N 52x03'07" W 236.22 feet;
749
234. N 59x50'41" W 424.43 feet;
750
235. N 57x02'33" W 230.68 feet;
751
236. N 48x19'51" W 103.33 feet;
752
237. N 40x22'48" W 238.16 feet;
753
238. N 27x29'10" W 445.07 feet;
754
239. N 27x28'12" W 417.56 feet;
755
240. N 23x53'28" W 462.72 feet;
756
241. N 20x07'44" W 182.40 feet;
757
242. N 02x09'48" W 110.47 feet;
758
243. N 45x05'17" W 66.80 feet;
759
244. N 24x47'08" W 167.79 feet;
760
245. N 04x37'48" E 25.09 feet;
761
246. N 25x09'10" W 194.51 feet;
762
247. N 47x03'42" W 36.76 feet;
763
248. N 23x12'08" W 208.06 feet;
764
249. N 31x51'35" W 213.36 feet;
765
250. N 25x18'01" W 275.95 feet;
766
251. N 22x57'02" W 335.59 feet;
767
252. N 35x58'44" W 89.13 feet;
768
253. N 24x17'16" W 160.88 feet;
769
254. N 75x21'26" W 17.52 feet;
770
255. N 27x01'17" W 188.36 feet;
771
256. N 13x08'58" W 227.87 feet;
772
257. N 40x21'42" W 136.76 feet;
773
258. N 24x24'56" W 197.69 feet;
774
259. N 23x37'41" W 184.07 feet;
775
260. N 26x21'53" W 373.91 feet;
776
261. N 30x13'30" W 285.83 feet;
777
262. N 23x37'13" W 44.79 feet;
778
263. N 32x55'17" W 111.43 feet;
779
264. N 70x24'21" W 45.64 feet;
780
265. N 38x36'29" W 28.58 feet;
781
266. N 27x45'40" W 98.67 feet;
782
267. N 46x12'44" W 44.96 feet;
783
268. N 24x49'30" W 178.43 feet;
784
269. N 05x35'47" E 26.71 feet;
785
270. N 22x59'42" W 38.82 feet;
786
271. N 10x02'49" E 30.61 feet;
787
272. N 19x34'05" W 114.65 feet;
788
273. N 05x33'59" E 13.45 feet;
789
274. N 12x59'57" W 110.34 feet;
790
Page 448.
791
275. N 01x10'59" E 216.95 feet;
792
276. N 07x13'33" E 110.78 feet;
793
277. N 06x00'55" E 131.88 feet;
794
278. N 12x01'16" E 173.06 feet;
795
279. N 04x06'19" W 44.77 feet;
796
280. N 34x06'19" E 126.69 feet;
797
281. N 40x46'38" E 329.61 feet;
798
282. N 27x01'26" E 173.94 feet;
799
283. N 46x34'13" E 311.34 feet;
800
284. N 46x36'53" E 361.75 feet;
801
285. N 57x24'33" E 118.71 feet;
802
286. N 52x19'49" E 242.35 feet;
803
287. N 47x03'21" E 177.59 feet;
804
288. N 52x11'08" E 276.80 feet;
805
289. N 52x23'33" E 387.60 feet;
806
290. N 39x39'32" E 300.47 feet;
807
291. N 24x24'38" E 351.30 feet;
808
292. N 18x55'03" E 170.32 feet;
809
293. N 16x04'01" E 220.64 feet;
810
294. N 27x29'02" E 177.93 feet;
811
295. N 33x39'19" E 182.00 feet;
812
296. N 44x33'29" E 266.80 feet;
813
297. N 37x44'11" E 162.18 feet;
814
298. N 39x45'24" E 191.62 feet;
815
299. N 44x11'35" E 141.82 feet;
816
300. N 49x35'13" E 289.05 feet;
817
301. N 67x47'17" E 434.12 feet;
818
302. N 50x05'56" E 187.21 feet;
819
303. N 53x46'23" E 313.82 feet;
820
304. N 57x52'30" E 229.52 feet;
821
305. N 34x44'43" E 240.98 feet;
822
306. N 13x51'35" E 139.72 feet;
823
307. N 31x29'51" E 218.39 feet;
824
308. N 09x00'09" E 310.43 feet;
825
309. N 03x29'17" E 364.22 feet;
826
310. N 21x07'35" E 112.02 feet;
827
311. N 25x42'13" E 133.57 feet;
828
312. N 45x58'18" E 53.38 feet;
829
313. N 60x19'59" E 51.98 feet;
830
314. N 37x15'32" E 182.58 feet;
831
315. N 15x23'58" E 83.49 feet;
832
316. N 15x42'01" E 261.08 feet;
833
317. N 36x24'20" W 51.58 feet;
834
318. N 15x15'01" E 196.32 feet;
835
319. N 13x42'25" W 206.28 feet;
836
320. N 32x40'58" E 42.13 feet;
837
321. N 32x31'26" E 214.62 feet;
838
322. N 44x06'21" E 17.67 feet;
839
323. N 30x59'00" E 115.35 feet;
840
324. N 25x35'07" E 44.46 feet;
841
325. N 18x27'29" E 109.88 feet;
842
326. N 22x50'29" E 131.46 feet;
843
327. N 05x32'17" E 162.37 feet;
844
328. N 01x04'56" W 188.48 feet;
845
329. N 08x30'21" W 126.56 feet;
846
330. N 16x47'18" E 224.07 feet;
847
331. N 30x43'44" E 88.32 feet;
848
332. N 41x35'58" E 181.80 feet;
849
333. N 41x26'54" E 4.11 feet;
850
334. N 62x19'06" E 53.47 feet;
851
335. N 42x17'15" E 75.16 feet;
852
336. N 42x33'08" E 98.01 feet;
853
337. N 14x53'12" E 16.50 feet;
854
338. N 05x14'15" W 25.31 feet;
855
339. N 39x32'31" E 98.80 feet;
856
340. N 04x53'40" W 145.92 feet;
857
341. N 09x04'54" E 362.65 feet;
858
342. N 14x50'01" E 304.17 feet;
859
343. N 01x28'58" E 71.48 feet;
860
344. N 02x08'33" E 176.53 feet;
861
345. N 01x57'51" W 319.75 feet;
862
346. N 01x20'24" W 243.11 feet;
863
347. N 09x08'02" E 139.88 feet;
864
348. N 13x07'32" W 209.36 feet;
865
349. N 06x26'13" W 175.51 feet;
866
350. N 05x37'45" W 293.41 feet;
867
351. N 06x34'59" W 217.59 feet;
868
352. N 07x47'48" W 290.66 feet;
869
353. N 10x41'30" W 267.70 feet;
870
354. N 04x47'01" W 72.08 feet;
871
355. N 14x28'47" W 234.20 feet;
872
356. N 00x19'43" W 116.62 feet;
873
357. N 07x44'46" W 279.97 feet;
874
358. N 11x32'18" W 356.71 feet;
875
359. N 11x07'49" W 213.28 feet;
876
360. N 14x30'09" W 272.42 feet; 361. N 06x36'37" W 286.80 feet;
877
362. N 08x28'38" W 238.45 feet;
878
363. N 17x03'40" W 151.67 feet;
879
364. N 09x18'29" W 342.55 feet;
880
365. N 14x40'23" W 256.29 feet;
881
366. N 14x18'03" W 363.43 feet;
882
367. N 11x45'38" E 206.67 feet;
883
368. N 41x54'52" E 321.85 feet;
884
369. N 63x25'44" E 273.18 feet;
885
370. S 74x04'12" E 474.64 feet;
886
371. N 88x03'52" E 416.71 feet;
887
372. S 66x20'00" E 572.97 feet;
888
373. S 80x24'37" E 222.10 feet;
889
374. S 89x46'40" E 349.53 feet;
890
375. N 82x26'19" E 391.23 feet;
891
376. N 66x00'59" E 497.08 feet;
892
377. N 58x38'57" E 276.46 feet to a standard California State Lands Commission brass tablet set in concrete stamped "N-MID-CAL 1981" having California Coordinate System, Zone 6 coordinates of x = 2,472,838.61 feet and y = 432,666.01 feet, said tablet being located on the westerly boundary of the parcels of land taken by condemnation in United States v. 243.25 Acres of Land, Civil No. 3505-SD-Smith (S.D. Cal. 1973) and United States v. 67.57 Acres of Land, Civil No. 5925-Phx-Craig (D. Ariz. 1972); Thence leaving said centerline of the former channel,
893
378. Southwesterly 279.92 feet along said westerly boundary, being a fixed and limiting boundary of the herein described parcel, on the arc of a curve, concave westerly, having a radius of 15,350 feet, to a point on said curve subtended by a chord which bears S 07x 53' 20" W 279.92 feet, said point being monumented with a standard California
894
State Lands Commission brass tablet set in concrete, stamped "N-LB ARIZ 1981", having California Coordinate System Zone 6 coordinates of x = 2,472,800.19 feet and y = 432,388.74 feet, from which California State Lands Commission Monument "PI-14" bears N 18x47'54" E 1151.11 feet, as said monument is shown on said map, also from which said brass tablet, the section corner common to Sections 11, 12, 13, and 14, T1S, R24W, G&SRM, as shown on the United States Bureau of Land Management plat, accepted August, 1961, bears N 71x55'49" E 1611.90 feet; thence downstream along a fixed and limiting boundary of the herein described parcel, the following 451 courses:
895
379. S 58x45'19" W 85.58 feet;
896
380. S 67x38'56" W 249.89 feet;
897
381. S 63x43'57" W 155.84 feet;
898
382. S 72x16'06" W 184.20 feet;
899
383. S 78x34'43" W 146.14 feet;
900
384. S 83x53'41" W 329.27 feet;
901
385. S 88x37'43" W 388.16 feet;
902
386. N 86x25'25" W 240.47 feet;
903
387. N 76x32'50" W 213.20 feet;
904
388. N 68x55'05" W 287.46 feet;
905
389. N 78x03'34" W 361.78 feet;
906
390. N 69x59'22" W 469.15 feet;
907
391. S 72x10'47" W 102.57 feet;
908
392. S 47x23'09" W 101.91 feet;
909
393. S 25x37'19" W 108.69 feet;
910
394. S 13x06'59" W 105.76 feet;
911
395. S 03x21'59" W 102.18 feet;
912
396. S 03x38'10" E 299.60 feet;
913
397. S 04x11'06" E 205.55 feet;
914
398. S 12x23'07" E 303.05 feet;
915
399. S 17x03'40" E 303.35 feet;
916
400. S 12x44'31" E 204.03 feet;
917
401. S 04x29'08" E 249.21 feet; 402. S 16x06'43" E 236.71 feet;
918
403. S 12x58'58" E 210.41 feet;
919
404. S 12x25'06" E 194.47 feet;
920
405. S 10x36'11" E 198.69 feet;
921
406. S 02x21'08" E 229.51 feet;
922
407. S 00x19'45" E 233.24 feet;
923
408. S 24x35'43" E 164.99 feet;
924
409. S 04x46'58" E 144.16 feet;
925
410. S 15x05'56" E 182.16 feet;
926
411. S 08x41'35" E 284.96 feet;
927
412. S 09x40'02" E 222.06 feet;
928
413. S 08x33'33" E 174.90 feet;
929
414. S 06x47'07" E 173.17 feet;
930
415. S 21x34'13" E 97.08 feet;
931
416. S 09x32'18" E 99.27 feet;
932
417. S 24x41'06" E 123.51 feet;
933
418. S 25x41'09" E 101.42 feet;
934
419. S 02x05'30" W 53.98 feet;
935
420. S 15x33'52" W 92.95 feet;
936
421. S 09x09'15" E 82.85 feet;
937
422. S 08x35'15" E 141.17 feet;
938
423. S 13x23'46" E 119.17 feet;
939
424. S 10x02'38" E 108.20 feet;
940
425. S 04x57'17" E 119.26 feet;
941
426. S 04x37'53" W 165.58 feet;
942
427. S 01x28'59" W 142.97 feet;
943
428. S 05x49'59" E 252.68 feet;
944
429. S 02x44'42" W 292.34 feet;
945
430. S 08x15'47" W 182.68 feet;
946
431. S 27x44'21" E 221.17 feet;
947
432. S 08x46'04" E 26.18 feet;
948
433. S 05x13'42" E 50.59 feet;
949
434. S 14x50'39" W 33.02 feet;
950
435. S 40x43'36" W 53.52 feet;
951
436. S 52x19'09" W 120.67 feet;
952
437. S 62x19'06" W 106.94 feet;
953
438. S 41x26'32" W 8.20 feet;
954
439. S 17x30'03" W 132.09 feet;
955
440. S 02x00'03" E 55.56 feet;
956
441. S 19x15'22" E 191.76 feet;
957
442. S 11x53'15" E 173.16 feet;
958
443. S 02x12'11" E 241.66 feet;
959
444. S 05x28'02" W 217.06 feet;
960
445. S 23x06'41" W 180.17 feet;
961
446. S 37x57'30" W 148.76 feet;
962
447. S 48x45'25" W 164.55 feet;
963
448. S 59x11'34" W 325.33 feet;
964
449. S 42x48'13" W 21.79 feet;
965
450. S 25x17'54" W 317.81 feet;
966
451. S 16x55'02" W 342.44 feet;
967
452. S 32x06'35" W 23.87 feet;
968
453. S 49x38'48" W 276.68 feet;
969
454. S 60x19'46" W 103.98 feet;
970
455. S 79x56'36" W 63.64 feet;
971
456. S 44x01'44" W 74.60 feet;
972
457. S 20x55'28" W 109.20 feet;
973
458. S 03x28'57" E 140.43 feet;
974
459. S 06x05'54" E 345.74 feet;
975
460. S 06x05'48" E 345.75 feet;
976
461. S 32x34'17" W 168.48 feet;
977
462. S 17x35'41" W 266.14 feet;
978
463. S 30x06'42" W 61.23 feet;
979
464. S 41x41'34" W 226.03 feet;
980
465. S 44x35'14" W 145.30 feet;
981
466. S 40x34'00" W 111.05 feet;
982
467. S 40x02'55" W 123.14 feet;
983
468. S 46x00'59" W 122.79 feet;
984
469. S 44x26'16" W 108.84 feet;
985
470. S 52x56'12" W 268.39 feet;
986
471. S 56x42'26" W 131.24 feet;
987
472. S 55x42'54" W 168.79 feet;
988
473. S 56x00'39" W 106.77 feet;
989
474. S 57x12'12" W 100.69 feet;
990
475. S 53x12'11" W 102.19 feet;
991
476. S 63x09'46" W 73.41 feet;
992
477. N 86x34'07" W 93.90 feet;
993
478. N 76x12'12" W 96.24 feet;
994
479. S 89x11'29" W 113.37 feet;
995
480. S 88x17'58" W 70.09 feet;
996
481. S 69x16'43" W 95.27 feet;
997
482. S 57x49'20" W 110.66 feet;
998
483. S 53x52'23" W 105.21 feet;
999
484. S 59x36'59" W 85.89 feet;
1000
485. S 39x47'16" W 66.47 feet;
1001
486. S 28x33'56" W 87.75 feet;
1002
487. S 19x05'09" W 100.22 feet; 488. S 15x01'54" W 240.95 feet;
1003
489. S 10x51'19" W 104.77 feet;
1004
490. S 11x10'21" W 138.06 feet;
1005
491. S 14x35'32" W 117.73 feet;
1006
492. S 17x19'33" W 118.13 feet;
1007
493. S 27x00'27" W 66.02 feet;
1008
494. S 28x24'12" E 20.08 feet;
1009
495. N 42x15'47" E 72.71 feet;
1010
496. N 27x42'21" E 89.63 feet;
1011
497. N 36x57'39" E 64.31 feet;
1012
498. S 73x25'21" E 9.46 feet;
1013
499. S 23x44'15" W 68.54 feet;
1014
500. S 14x55'55" W 62.83 feet;
1015
501. S 84x04'41" E 50.69 feet;
1016
502. N 39x32'11" E 43.59 feet;
1017
503. N 38x42'57" E 75.00 feet;
1018
504. N 43x37'10" E 75.44 feet;
1019
505. S 80x27'48" E 36.76 feet;
1020
506. S 16x08'24" W 54.18 feet;
1021
507. S 39x09'54" W 55.09 feet;
1022
508. S 55x13'47" W 240.09 feet;
1023
509. S 61x00'14" W 119.77 feet;
1024
510. S 47x05'24" W 184.98 feet;
1025
511. S 50x31'57" W 139.06 feet;
1026
512. S 56x24'25" W 134.18 feet;
1027
513. S 47x51'53" W 64.94 feet;
1028
514. S 53x44'41" W 187.16 feet;
1029
515. S 42x41'39" W 144.82 feet;
1030
516. S 57x48'44" W 184.91 feet;
1031
517. S 35x01'21" W 83.01 feet;
1032
518. S 51x53'22" W 113.06 feet;
1033
519. S 53x59'07" W 172.04 feet;
1034
520. S 81x05'34" W 63.29 feet;
1035
521. S 43x10'48" W 160.09 feet;
1036
522. S 42x26'51" W 179.10 feet;
1037
523. S 46x56'20" W 183.28 feet;
1038
524. S 56x40'44" W 161.91 feet;
1039
525. S 51x16'52" W 186.33 feet;
1040
526. S 41x35'43" W 305.77 feet;
1041
527. S 36x14'42" W 134.77 feet;
1042
528. S 10x29'41" W 125.84 feet;
1043
529. S 11x13'27" W 129.77 feet;
1044
530. S 03x06'22" W 118.29 feet;
1045
531. S 04x47'52" W 141.08 feet;
1046
532. S 08x24'44" E 142.73 feet;
1047
533. S 16x31'56" E 153.72 feet;
1048
534. S 25x11'16" E 177.87 feet;
1049
535. S 33x56'20" E 163.53 feet;
1050
536. S 32x55'17" E 222.86 feet;
1051
537. S 34x47'40" E 223.93 feet;
1052
538. S 32x55'29" E 259.90 feet;
1053
539. S 35x14'17" E 189.13 feet;
1054
540. S 28x00'33" E 180.47 feet;
1055
541. S 26x27'16" E 208.25 feet;
1056
542. S 86x56'59" E 40.22 feet;
1057
543. S 49x24'43" E 46.88 feet;
1058
544. S 04x48'27" E 246.76 feet;
1059
545. S 16x25'25" E 122.09 feet;
1060
546. S 55x46'43" E 36.79 feet;
1061
547. S 27x26'13" E 295.40 feet;
1062
548. S 28x59'05" E 221.60 feet;
1063
549. S 23x41'06" E 182.64 feet;
1064
550. S 26x36'06" E 209.83 feet;
1065
551. S 38x08'33" E 204.79 feet;
1066
552. S 21x14'14" E 244.82 feet;
1067
553. S 27x07'44" E 209.48 feet;
1068
554. S 23x11'36" E 223.85 feet;
1069
555. S 05x26'18" E 172.31 feet;
1070
556. S 15x23'38" E 158.97 feet;
1071
557. S 24x17'06" E 143.43 feet;
1072
558. S 29x51'56" E 342.49 feet;
1073
559. S 27x13'56" E 207.02 feet;
1074
560. S 31x21'49" E 207.64 feet;
1075
561. S 31x36'06" E 259.29 feet;
1076
562. S 21x21'03" E 145.90 feet;
1077
563. S 37x11'38" E 220.43 feet;
1078
564. S 50x01'34" E 282.89 feet;
1079
565. S 50x01'49" E 399.67 feet;
1080
566. S 61x37'46" E 190.63 feet;
1081
567. S 62x11'18" E 207.62 feet;
1082
568. S 63x36'57" E 218.19 feet;
1083
569. S 66x05'47" E 255.33 feet;
1084
570. S 69x08'03" E 255.80 feet;
1085
571. S 70x48'14" E 226.37 feet;
1086
572. S 72x20'56" E 267.92 feet;
1087
573. S 76x21'40" E 227.95 feet; 574. S 64x54'34" E 176.94 feet;
1088
575. N 75x37'59" E 61.78 feet;
1089
576. S 68x25'23" E 123.64 feet;
1090
577. S 76x10'47" E 195.50 feet;
1091
578. S 78x39'45" E 241.42 feet;
1092
579. S 76x15'18" E 179.92 feet;
1093
580. S 78x38'58" E 171.99 feet;
1094
581. S 83x50'42" E 210.50 feet;
1095
582. S 81x30'12" E 195.47 feet;
1096
583. S 73x38'32" E 249.36 feet;
1097
584. S 80x08'31" E 178.26 feet;
1098
585. S 75x15'19" E 328.39 feet;
1099
586. S 80x54'17" E 150.18 feet;
1100
587. S 73x52'56" E 178.14 feet;
1101
588. S 84x50'48" E 129.59 feet;
1102
589. S 81x50'59" E 226.00 feet;
1103
590. S 75x53'33" E 265.24 feet;
1104
591. S 81x48'54" E 372.97 feet;
1105
592. S 79x11'16" E 380.14 feet;
1106
593. S 79x25'58" E 134.03 feet;
1107
594. S 24x53'23" E 22.03 feet;
1108
595. S 85x54'52" E 72.28 feet;
1109
596. N 82x15'33" E 50.78 feet;
1110
597. S 71x40'20" E 86.15 feet;
1111
598. S 83x37'15" E 80.91 feet;
1112
599. S 66x03'44" E 125.08 feet;
1113
600. S 76x47'34" E 122.03 feet;
1114
601. S 69x35'21" E 96.57 feet;
1115
602. S 76x00'45" E 117.16 feet;
1116
603. S 65x00'50" E 82.93 feet;
1117
604. S 75x01'00" E 95.23 feet;
1118
605. N 83x00'55" E 78.04 feet;
1119
606. S 61x17'50" E 77.21 feet;
1120
607. S 72x34'01" E 217.36 feet;
1121
608. S 62x10'44" E 108.33 feet;
1122
609. S 73x25'49" E 266.60 feet;
1123
610. S 70x21'51" E 126.29 feet;
1124
611. S 73x29'15" E 205.96 feet;
1125
612. S 77x22'14" E 103.14 feet;
1126
613. S 68x34'55" E 111.26 feet;
1127
614. N 65x27'32" E 80.54 feet;
1128
615. S 83x38'02" E 38.87 feet;
1129
616. S 57x26'10" E 108.65 feet;
1130
617. S 67x34'57" E 239.54 feet;
1131
618. S 81x18'34" E 87.76 feet;
1132
619. S 70x20'55" E 250.11 feet;
1133
620. S 66x24'51" E 140.26 feet;
1134
621. S 62x57'51" E 130.66 feet;
1135
622. S 72x52'00" E 257.10 feet;
1136
623. S 63x05'55" E 128.72 feet;
1137
624. S 71x10'45" E 229.60 feet;
1138
625. S 62x58'43" E 104.42 feet;
1139
626. S 69x05'40" E 234.01 feet;
1140
627. S 65x04'36" E 136.12 feet;
1141
628. S 59x05'12" E 138.55 feet;
1142
629. S 67x56'20" E 145.05 feet;
1143
630. S 64x55'40" E 102.65 feet;
1144
631. S 62x11'03" E 135.63 feet;
1145
632. S 65x23'19" E 127.50 feet;
1146
633. S 56x52'07" E 125.46 feet;
1147
634. S 50x59'31" E 225.36 feet;
1148
635. S 55x03'58" E 105.86 feet;
1149
636. S 67x01'55" E 118.11 feet;
1150
637. S 60x57'13" E 150.40 feet;
1151
638. S 48x49'30" E 84.48 feet;
1152
639. S 65x35'56" E 142.48 feet;
1153
640. N 89x23'45" E 41.73 feet;
1154
641. S 57x51'45" E 125.91 feet;
1155
642. S 56x29'17" E 262.48 feet;
1156
643. S 59x40'11" E 156.98 feet;
1157
644. S 48x27'19" E 212.94 feet;
1158
645. S 66x08'37" E 100.78 feet;
1159
646. S 55x01'47" E 129.23 feet;
1160
647. S 52x28'46" E 204.68 feet;
1161
648. S 61x12'11" E 181.21 feet;
1162
649. S 37x39'48" E 66.00 feet;
1163
650. S 49x08'11" E 92.35 feet;
1164
651. S 58x48'24" E 90.78 feet;
1165
652. S 38x03'31" E 92.27 feet;
1166
653. S 43x43'07" E 88.54 feet;
1167
654. S 51x32'30" E 82.61 feet;
1168
655. S 41x00'07" E 99.90 feet;
1169
656. S 46x08'39" E 210.71 feet;
1170
657. S 51x32'03" E 97.74 feet;
1171
658. S 40x54'29" E 214.05 feet;
1172
659. S 20x47'21" W 38.23 feet; 660. S 46x39'58" E 84.63 feet;
1173
661. S 28x51'47" E 212.26 feet;
1174
662. S 39x10'09" E 69.39 feet;
1175
663. S 26x39'24" E 148.20 feet;
1176
664. S 20x17'51" E 50.30 feet;
1177
665. S 36x10'31" W 25.90 feet;
1178
666. S 30x25'15" E 27.33 feet;
1179
667. N 67x09'38" E 23.47 feet;
1180
668. S 34x19'33" E 78.49 feet;
1181
669. S 27x46'57" E 104.39 feet;
1182
670. S 22x20'57" E 205.31 feet;
1183
671. S 20x34'38" E 212.08 feet;
1184
672. S 23x12'41" E 100.53 feet;
1185
673. S 10x39'41" E 92.86 feet;
1186
674. S 13x51'46" E 181.10 feet;
1187
675. S 26x25'11" E 100.51 feet;
1188
676. S 28x48'18" E 266.84 feet;
1189
677. S 26x24'33" E 289.20 feet;
1190
678. S 30x55'21" E 250.10 feet;
1191
679. S 30x00'26" E 294.96 feet;
1192
680. S 27x05'45" E 298.90 feet;
1193
681. S 26x36'05" E 246.59 feet;
1194
682. S 24x04'14" E 129.16 feet;
1195
683. S 18x24'10" E 263.99 feet;
1196
684. S 19x38'55" E 108.55 feet;
1197
685. S 11x09'29" W 14.06 feet;
1198
686. S 21x46'47" E 230.73 feet;
1199
687. S 27x14'52" E 76.93 feet;
1200
688. S 09x59'07" E 172.96 feet;
1201
689. S 02x16'55" W 83.13 feet;
1202
690. S 14x23'28" E 251.35 feet;
1203
691. S 08x12'25" E 193.98 feet;
1204
692. S 07x37'21" E 115.12 feet;
1205
693. S 03x08'44" E 121.00 feet;
1206
694. S 07x49'00" W 184.40 feet;
1207
695. S 11x40'00" W 274.65 feet;
1208
696. S 18x06'52" W 176.99 feet;
1209
697. S 25x11'15" W 223.41 feet;
1210
698. S 01x37'33" W 50.40 feet;
1211
699. S 76x11'04" W 28.35 feet;
1212
700. S 15x18'44" W 45.74 feet;
1213
701. S 44x01'15" W 77.38 feet;
1214
702. S 33x20'32" W 198.24 feet;
1215
703. S 09x45'36" W 31.97 feet;
1216
704. S 67x36'06" W 56.14 feet;
1217
705. S 30x28'52" W 37.06 feet;
1218
706. S 59x19'13" W 148.03 feet;
1219
707. S 89x59'46" W 146.03 feet;
1220
708. S 56x07'09" W 190.70 feet;
1221
709. S 76x39'12" W 70.74 feet;
1222
710. S 64x10'36" W 100.87 feet;
1223
711. S 71x59'42" W 265.87 feet;
1224
712. S 68x05'09" W 92.39 feet;
1225
713. S 49x57'27" W 34.37 feet;
1226
714. S 68x45'32" W 110.52 feet;
1227
715. S 51x21'10" W 225.77 feet;
1228
716. S 46x51'11" W 142.59 feet;
1229
717. S 40x21'42" W 124.78 feet;
1230
718. S 42x48'55" W 102.20 feet;
1231
719. S 53x23'18" W 129.18 feet;
1232
720. S 43x39'06" W 147.26 feet;
1233
721. S 42x32'22" W 148.07 feet;
1234
722. S 46x14'58" W 232.20 feet;
1235
723. S 38x15'09" W 121.21 feet;
1236
724. S 28x33'33" W 51.79 feet;
1237
725. S 55x17'44" W 105.12 feet;
1238
726. S 43x08'25" W 192.62 feet;
1239
727. S 42x58'34" W 74.89 feet;
1240
728. S 25x27'32" W 71.81 feet;
1241
729. S 55x28'32" W 125.31 feet;
1242
730. S 53x23'31" W 107.61 feet;
1243
731. S 47x49'50" W 99.52 feet;
1244
732. S 61x59'40" W 100.69 feet;
1245
733. S 54x25'51" W 181.68 feet;
1246
734. S 76x32'42" W 24.63 feet;
1247
735. S 48x29'48" W 233.50 feet;
1248
736. S 86x22'11" W 43.75 feet;
1249
737. S 54x55'02" W 102.72 feet;
1250
738. S 49x59'24" W 112.67 feet;
1251
739. S 53x07'51" W 160.74 feet;
1252
740. S 60x24'15" W 81.03 feet;
1253
741. S 45x44'09" W 50.10 feet;
1254
742. S 63x18'46" W 48.23 feet;
1255
743. S 77x17'01" W 29.80 feet;
1256
744. S 56x12'52" W 198.12 feet;
1257
745. S 63x10'28" W 110.12 feet; 746. S 57x00'17" W 106.34 feet;
1258
747. S 69x35'07" W 113.41 feet;
1259
748. S 64x34'41" W 114.10 feet;
1260
749. S 56x22'36" W 124.00 feet;
1261
750. S 48x21'41" W 331.65 feet;
1262
751. S 34x59'21" W 214.69 feet;
1263
752. S 29x28'22" W 117.25 feet;
1264
753. S 24x56'24" W 83.26 feet;
1265
754. S 18x48'55" W 77.17 feet;
1266
755. S 10x42'08" E 162.73 feet;
1267
756. S 22x47'29" E 164.14 feet;
1268
757. S 06x41'13" W 24.99 feet;
1269
758. S 21x01'39" E 166.38 feet;
1270
759. S 65x05'14" E 18.30 feet;
1271
760. S 19x32'21" E 62.85 feet;
1272
761. S 36x38'05" E 46.76 feet;
1273
762. S 08x34'36" E 104.14 feet;
1274
763. S 29x56'22" E 74.54 feet;
1275
764. S 36x38'32" E 106.20 feet;
1276
765. S 41x28'29" E 94.29 feet;
1277
766. S 45x24'24" E 247.11 feet;
1278
767. S 36x11'07" E 118.17 feet;
1279
768. S 22x29'31" E 56.86 feet;
1280
769. S 36x37'24" E 132.95 feet;
1281
770. S 32x53'13" E 228.74 feet;
1282
771. S 25x33'10" E 123.78 feet;
1283
772. S 36x05'29" E 305.24 feet;
1284
773. S 38x58'11" E 343.15 feet;
1285
774. S 37x14'51" E 283.75 feet;
1286
775. S 40x41'02" E 253.31 feet;
1287
776. S 44x23'34" E 320.92 feet;
1288
777. S 51x39'29" E 47.02 feet;
1289
778. S 38x17'13" E 189.64 feet;
1290
779. S 29x41'54" E 244.71 feet;
1291
780. S 67x34'27" E 25.22 feet;
1292
781. S 31x44'33" E 126.08 feet;
1293
782. S 48x31'24" E 48.21 feet;
1294
783. S 07x36'37" W 19.48 feet;
1295
784. S 33x21'25" E 208.40 feet;
1296
785. S 26x22'29" E 222.13 feet;
1297
786. S 35x15'47" E 216.91 feet;
1298
787. S 77x17'17" E 27.49 feet;
1299
788. S 17x56'13" E 61.86 feet;
1300
789. S 37x08'35" E 66.73 feet;
1301
790. S 29x10'16" E 110.25 feet;
1302
791. S 34x06'21" E 243.12 feet;
1303
792. S 40x20'23" E 142.82 feet;
1304
793. S 30x43'37" E 107.41 feet;
1305
794. S 40x38'33" E 322.38 feet;
1306
795. S 01x33'17" E 23.22 feet;
1307
796. S 37x48'53" E 271.36 feet;
1308
797. S 36x17'19" E 318.41 feet;
1309
798. S 34x48'10" E 266.05 feet;
1310
799. S 38x38'40" E 236.92 feet;
1311
800. S 42x56'22" E 324.31 feet;
1312
801. S 42x15'21" E 262.89 feet;
1313
802. S 41x43'45" E 284.81 feet;
1314
803. S 39x24'11" E 167.70 feet;
1315
804. S 32x32'27" E 82.56 feet;
1316
805. S 41x59'11" E 132.75 feet;
1317
806. S 32x47'44" E 331.64 feet;
1318
807. S 34x13'24" E 306.32 feet;
1319
808. S 25x48'55" E 127.47 feet;
1320
809. S 24x26'47" E 226.80 feet;
1321
810. S 18x52'19" E 225.90 feet;
1322
811. S 34x24'10" E 53.06 feet;
1323
812. S 06x14'11" E 64.07 feet;
1324
813. S 23x02'28" E 110.30 feet;
1325
814. S 19x41'29" E 204.51 feet;
1326
815. S 04x50'10" W 49.82 feet;
1327
816. S 38x56'27" W 64.31 feet;
1328
817. S 25x16'25" W 57.74 feet;
1329
818. S 43x14'24" W 54.57 feet;
1330
819. N 65x45'19" W 29.05 feet;
1331
820. S 23x32'11" W 53.92 feet;
1332
821. S 00x16'24" E 71.24 feet;
1333
822. S 67x44'27" W 30.91 feet;
1334
823. S 35x24'30" W 78.34 feet;
1335
824. S 18x27'07" W 127.83 feet;
1336
825. S 08x21'04" W 78.49 feet;
1337
826. S 08x01'19" E 45.65 feet;
1338
827. S 21x57'03" E 56.20 feet;
1339
828. S 25x48'52" W 67.24 feet;
1340
829. S 13x41'05" W 89.36 feet to a standard California State Lands Commission brass tablet set in concrete stamped "S-LB-ARIZ LB-1002-1981" having California Coordinate System, Zone 6 coordinates of x = 2,482,687.70 feet and y = 387,254.91 feet, from which United States Water and Power Resources Service (formerly United States Bureau of Reclamation) Station RUIN bears N 45x17'59" E 524.27 feet; thence, the following two courses:
1341
830. S 54x13'42" W 37.57 feet;
831. S 00x13'08" E 60.22 feet to
1342
a point having California Coordinate System, Zone 6 coordinates of x = 2,482,657.45 feet and y = 387,172.73 feet as said point is shown on the Davis Lake Area Project Administrative Maps, hereinbefore described; thence,
1343
832. N 77x38'10" W 213.25 feet to a point on the center line of the former channel of the Colorado River, said point also being the point of beginning of the herein described parcel of land.
1344
Bearings and distances in the above description are based on the California Coordinate System, Zone 6.
| 1011
|
69 L.Ed.2d 103
101 S.Ct. 2424
452 U.S. 394
FEDERATED DEPARTMENT STORES, INC., et al., Petitioners,v.Marilyn MOITIE and Floyd R. Brown, etc.
No. 79-1517.
Argued March 30, 1981.
Decided June 15, 1981.
Syllabus
Seven private antitrust actions (including separate actions by each of the respondents) were brought by plaintiffs seeking to represent classes of retail purchasers against petitioners, owners of various department stores, for alleged price fixing. The actions were consolidated in Federal District Court, which dismissed them for failure to allege an "injury" to the plaintiffs' "business or property" within the meaning of the Clayton Act. Plaintiffs in five of the actions appealed, but respondents chose instead to refile their two actions in state court, making allegations similar to those made in the prior complaints. Petitioners removed these new actions to the District Court, which dismissed them under the doctrine of res judicata, and respondents appealed. Because of this Court's intervening decision in Reiter v. Sonotone Corp., 442 U.S. 330, 99 S.Ct. 2326, 60 L.Ed.2d 931, the Court of Appeals thereafter reversed and remanded the five cases which had been initially decided with respondents' first actions, and later reversed the District Court's dismissal of respondents' subsequent actions. The Court of Appeals held that because respondents' position was "closely interwoven" with that of the successfully appealing parties, the doctrine of res judicata must give way to "public policy" and "simple justice."
Held : Res judicata bars relitigation of the unappealed adverse judgments against respondents as to their federal-law claims. The res judicata consequences of a final, unappealed judgment on the merits are not altered by the fact that the judgment may have been wrong or rested on a legal principle subsequently overruled in another case. There is no general equitable doctrine which countenances an exception to the finality of a party's failure to appeal merely because his rights are "closely interwoven" with those of another party who successfully appeals. Cf. Reed v. Allen, 286 U.S. 191, 52 S.Ct. 532, 76 L.Ed. 1054. Nor is there any principle of law or equity which sanctions rejection of the salutary principle of res judicata on the basis of "simple justice" or "public policy." "[The] doctrine of res judicata is not a mere matter of practice or procedure . . . . It is a rule of fundamental and substantial justice, 'of public policy and of private peace,' which should be cordially regarded and enforced by the courts . . . ." Hart Steel Co. v. Railroad Supply Co., 244 U.S. 294, 299, 37 S.Ct. 506, 507, 61 L.Ed. 1148. Pp. 398-402.
9th Cir., 611 F.2d 1267, reversed and remanded.
Jerome I. Chapman, Washington, D. C., for petitioners.
Jerrold N. Offstein, San Francisco, Cal., for respondents.
Justice REHNQUIST delivered the opinion of the Court.
1
The only question presented in this case is whether the Court of Appeals for the Ninth Circuit validly created an exception to the doctrine of res judicata. The court held that res judicata does not bar relitigation of an unappealed adverse judgment where, as here, other plaintiffs in similar actions against common defendants successfully appealed the judgments against them. We disagree with the view taken by the Court of Appeals for the Ninth Circuit and reverse.
2
* In 1976 the United States brought an antitrust action against petitioners, owners of various department stores, alleging that they had violated § 1 of the Sherman Act, 15 U.S.C. § 1, by agreeing to fix the retail price of women's clothing sold in northern California. Seven parallel civil actions were subsequently filed by private plaintiffs seeking treble damages on behalf of proposed classes of retail purchasers, including that of respondent Moitie in state court (Moitie I ) and respondent Brown (Brown I ) in the United States District Court for the Northern District of California. Each of these complaints tracked almost verbatim the allegations of the Government's complaint, though the Moitie I complaint referred solely to state law. All of the actions originally filed in the District Court were assigned to a single federal judge, and the Moitie I case was removed there on the basis of diversity of citizenship and federal-question jurisdiction. The District Court dismissed all of the actions "in their entirety" on the ground that plaintiffs had not alleged an "injury" to their "business or property" within the meaning of § 4 of the Clayton Act, 15 U.S.C. § 15. Weinberg v. Federated Department Stores, 426 F.Supp. 880 (1977).
3
Plaintiffs in five of the suits appealed that judgment to the Court of Appeals for the Ninth Circuit. The single counsel representing Moitie and Brown, however, chose not to appeal and instead refiled the two actions in state court, Moitie II and Brown II.1 Although the complaints purported to raise only state-law claims, they made allegations similar to those made in the prior complaints, including that of the Government. Petitioners removed these new actions to the District Court for the Northern District of California and moved to have them dismissed on the ground of res judicata. In a decision rendered July 8, 1977, the District Court first denied respondents' motion to remand. It held that the complaints, though artfully couched in terms of state law, were "in many respects identical" with the prior complaints, and were thus properly removed to federal court because they raised "essentially federal law" claims. The court then concluded that because Moitie II and Brown II involved the "same parties, the same alleged offenses, and the same time periods" as Moitie I and Brown I, the doctrine of res judicata required that they be dismissed this time, Moitie and Brown appealed.
4
Pending that appeal, this Court on June 11, 1979, decided Reiter v. Sonotone Corp., 442 U.S. 330, 99 S.Ct. 2326, 60 L.Ed.2d 931, holding that retail purchasers can suffer an "injury" to their "business or property" as those terms are used in § 4 of the Clayton Act. On June 25, 1979, the Court of Appeals for the Ninth Circuit reversed and remanded the five cases which had been decided with Moitie I and Brown I, the cases that had been appealed, for further proceedings in light of Reiter.
5
When Moitie II and Brown II finally came before the Court of Appeals for the Ninth Circuit, the court reversed the decision of the District Court dismissing the cases. 611 F.2d 1267.2 Though the court recognized that a "strict application of the doctrine of res judicata would preclude our review of the instant decision," id., at 1269, it refused to apply the doctrine to the facts of this case. It observed that the other five litigants in the Weinberg cases had successfully appealed the decision against them. It then asserted that "non-appealing parties may benefit from a reversal when their position is closely interwoven with that of appealing parties," ibid., and concluded that "[b]ecause the instant dismissal rested on a case that has been effectively overruled," the doctrine of res judicata must give way to "public policy" and "simple justice." Id., at 1269-1270. We granted certiorari, 449 U.S. 991, 101 S.Ct. 526, 66 L.Ed.2d 288 (1980), to consider the validity of the Court of Appeals' novel exception to the doctrine of res judicata.
II
6
There is little to be added to the doctrine of res judicata as developed in the case law of this Court. A final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action. Commissioner v. Sunnen, 333 U.S. 591, 597, 68 S.Ct. 715, 719, 92 L.Ed. 898 (1948); Cromwell v. County of Sac, 94 U.S. 351, 352-353, 24 L.Ed. 195 (1877). Nor are the res judicata consequences of a final, unappealed judgment on the merits altered by the fact that the judgment may have been wrong or rested on a legal principle subsequently overruled in another case. Angel v. Bullington, 330 U.S. 183, 187, 67 S.Ct. 657, 659, 91 L.Ed. 832 (1947); Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 60 S.Ct. 317, 84 L.Ed. 329 (1940); Wilson's Executor v. Deen, 121 U.S. 525, 534, 7 S.Ct. 1004, 1007, 30 L.Ed. 980 (1887). As this Court explained in Baltimore S.S. Co. v. Phillips, 274 U.S. 316, 325, 47 S.Ct. 600, 604, 71 L.Ed. 1069 (1927), an "erroneous conclusion" reached by the court in the first suit does not deprive the defendants in the second action "of their right to rely upon the plea of res judicata. . . . A judgment merely voidable because based upon an erroneous view of the law is not open to collateral attack, but can be corrected only by a direct review and not by bringing another action upon the same cause [of action]." We have observed that "[t]he indulgence of a contrary view would result in creating elements of uncertainty and confusion and in undermining the conclusive character of judg ments, consequences which it was the very purpose of the doctrine of res judicata to avert." Reed v. Allen, 286 U.S. 191, 201, 52 S.Ct. 532, 534, 76 L.Ed. 1054 (1932).
7
In this case, the Court of Appeals conceded that the "strict application of the doctrine of res judicata" required that Brown II be dismissed. By that, the court presumably meant that the "technical elements" of res judicata had been satisfied, namely, that the decision in Brown I was a final judgment on the merits and involved the same claims and the same parties as Brown II.3 The court, however, declined to dismiss Brown II because, in its view, it would be unfair to bar respondents from relitigating a claim so "closely interwoven" with that of the successfully appealing parties. We believe that such an unprecedented departure from accepted principles of res judicata is unwarranted. Indeed, the decision below is all but foreclosed by our prior case law.4
8
In Reed v. Allen, supra, this Court addressed the issue presented here. The case involved a dispute over the rights to property left in a will. A won an interpleader action for rents derived from the property and, while an appeal was pending, brought an ejectment action against the rival claimant B. On the basis of the decree in the interpleader suit A won the ejectment action. B did not appeal this judgment, but prevailed on his earlier appeal from the interpleader decree and was awarded the rents which had been collected. When B sought to bring an ejectment action against A, the latter pleaded res judicata, based on his previous successful ejectment action. This Court held that res judicata was available as a defense and that the property belonged to A :
9
"The judgment in the ejectment action was final and not open to assault collaterally, but subject to impeachment only through some form of direct attack. The appellate court was limited to a review of the interpleader decree; and it is hardly necessary to say that jurisdiction to review one judgment gives an appellate court no power to reverse or modify another and independent judgment. If respondent, in addition to appealing from the [interpleader] decree, had appealed from the [ejectment] judgment, the appellate court, having both cases before it, might have afforded a remedy. . . . But this course respondent neglected to follow." Id., at 198, 52 S.Ct., at 533.
10
This Court's rigorous application of res judicata in Reed, to the point of leaving one party in possession and the other party entitled to the rents, makes clear that this Court recognizes no general equitable doctrine, such as that suggested by the Court of Appeals, which countenances an exception to the finality of a party's failure to appeal merely because his rights are "closely interwoven" with those of another party. Indeed, this case presents even more compelling reasons to apply the doctrine of res judicata than did Reed. Respondents here seek to be the windfall beneficiaries of an appellate reversal procured by other independent parties, who have no interest in respondents' case, not a reversal in interrelated cases procured, as in Reed, by the same affected party. Moreover, in contrast to Reed, where it was unclear why no appeal was taken, it is apparent that respondents here made a calculated choice to forgo their appeals. See also Ackermann v. United States, 340 U.S. 193, 198, 71 S.Ct. 209, 211, 95 L.Ed. 207 (1950) (holding that petitioners were not entitled to relief under Federal Rule of Civil Procedure 60(b) when they made a "free, calculated, deliberate choic[e]" not to appeal).
11
The Court of Appeals also rested its opinion in part on what it viewed as "simple justice." But we do not see the grave injustice which would be done by the application of accepted principles of res judicata. "Simple justice" is achieved when a complex body of law developed over a period of years is evenhandedly applied. The doctrine of res judicata serves vital public interests beyond any individual judge's ad hoc determination of the equities in a particular case. There is simply "no principle of law or equity which sanctions the rejection by a federal court of the salutary principle of res judicata." Heiser v. Woodruff, 327 U.S. 726, 733, 66 S.Ct. 853, 856, 90 L.Ed. 970 (1946). The Court of Appeals' reliance on "public policy" is similarly misplaced. This Court has long recognized that "[p]ublic policy dictates that there be an end of litigation; that those who have contested an issue shall be bound by the result of the contest, and that matters once tried shall be considered forever settled as between the parties." Baldwin v. Traveling Men's Assn., 283 U.S. 522, 525, 51 S.Ct. 517, 518, 75 L.Ed. 1244 (1931). We have stressed that "[the] doctrine of res judicata is not a mere matter of practice or procedure inherited from a more technical time than ours. It is a rule of fundamental and substantial justice, 'of public policy and of private peace,' which should be cordially regarded and enforced by the courts. . .." Hart Steel Co. v. Railroad Supply Co., 244 U.S. 294, 299, 37 S.Ct. 506, 507, 61 L.Ed. 1148 (1917). The language used by this Court half a century ago is even more compelling in view of today's crowded dockets:
12
"The predicament in which respondent finds himself is of his own making . . . . [W]e cannot be expected, for his sole relief, to upset the general and well-established doctrine of res judicata, conceived in the light of the maxim that the interest of the state requires that there be an end to litigation—a maxim which comports with common sense as well as public policy. And the mischief which would follow the establishment of precedent for so disregarding this salutary doctrine against prolonging strife would be greater than the benefit which would result from relieving some case of individual hardship." Reed v. Allen, 286 U.S., at 198-199, 52 S.Ct., at 533.
13
Respondents make no serious effort to defend the decision of the Court of Appeals. They do not ask that the decision below be affirmed. Instead, they conclude that "the writ of certiorari should be dismissed as improvidently granted." Brief for Respondents 31. In the alternative, they argue that "the district court's dismissal on grounds of res judicata should be reversed, and the district court directed to grant respondent's motion to remand to the California state court." Ibid. In their view, Brown I cannot be considered res judicata as to their state-law claims, since Brown I raised only federal-law claims and Brown II raised additional state-law claims not decided in Brown I, such as unfair competition, fraud, and restitution.
14
It is unnecessary for this Court to reach that issue. It is enough for our decision here that Brown I is res judicata as to respondents' federal-law claims. Accordingly, the judgment of the Court of Appeals is reversed, and the cause is remanded for proceedings consistent with this opinion.
15
It is so ordered.
16
Justice BLACKMUN, with whom Justice MARSHALL joins, concurring in the judgment.
17
While I agree with the result reached in this case, I write separately to state my views on two points.
18
First, I, for one, would not close the door upon the possibility that there are cases in which the doctrine of res judicata must give way to what the Court of Appeals referred to as "overriding concerns of public policy and simple justice." 611 F.2d 1267, 1269 (CA9 1980). Professor Moore has noted: "Just as res judicata is occasionally qualified by an overriding, competing principle of public policy, so occasionally it needs an equitable tempering." 1B J. Moore & T. Currier, Moore's Federal Practice ¶ 0.405[12], p. 791 (1980) (footnote omitted). See also Reed v. Allen, 286 U.S. 191, 209, 52 S.Ct. 532, 537, 76 L.Ed. 1054 (1932) (Cardozo, J., joined by Brandeis and Stone, JJ., dissenting) ("A system of procedure is perverted from its proper function when it multiplies impediments to justice without the warrant of clear necessity"). But this case is clearly not one in which equity requires that the doctrine give way. Unlike the nonappealing party in Reed, respondents were not "caught in a mesh of procedural complexities." Ibid. Instead, they made a deliberate tactical decision not to appeal. Nor would public policy be served by making an exception to the doctrine in this case; to the contrary, there is a special need for strict application of res judicata in complex multiple party actions of this sort so as to discourage "break-away" litigation. Cf. Reiter v. Sonotone Corp., 442 U.S. 330, 345, 99 S.Ct. 2326, 2334, 60 L.Ed.2d 931 (1979). Finally, this is not a case "where the rights of appealing and nonappealing parties are so interwoven or dependent on each other as to require a reversal of the whole judgment when a part thereof is reversed." See Ford Motor Credit Co. v. Uresti, 581 S.W.2d 298, 300 (Tex.Civ.App.1979).*
19
Second, and in contrast, I would flatly hold that Brown I is res judicata as to respondents' state-law claims. Like the District Court, the Court of Appeals found that those state-law claims were simply disguised federal claims; since respondents have not cross-petitioned from that judgment, their argument that this case should be remanded to state court should be itself barred by res judicata. More important, even if the state and federal claims are distinct, respondents' failure to allege the state claims inBrown I manifestly bars their allegation in Brown II. The dismissal of Brown I is res judicata not only as to all claims respondents actually raised, but also as to all claims that could have been raised. See Commissioner v. Sunnen, 333 U.S. 591, 597, 68 S.Ct. 715, 719, 92 L.Ed. 898 (1948); Restatement (Second) of Judgments § 61.1 (Tent.Draft No. 5, Mar. 10, 1978). Since there is no reason to believe that it was clear at the outset of this litigation that the District Court would have declined to exercise pendent jurisdiction over state claims, respondents were obligated to plead those claims if they wished to preserve them. See id., § 61.1, Comment e. Because they did not do so, I would hold the claims barred.
20
Justice BRENNAN, dissenting.
21
In its eagerness to correct the decision of the Court of Appeals for the Ninth Circuit, the Court today disregards statutory restrictions on federal-court jurisdiction, and, in the process, confuses rather than clarifies long-established principles of res judicata. I therefore respectfully dissent.
22
* Respondent Floyd R. Brown1 filed this class action (Brown II ) against petitioners in California state court. The complaint stated four state-law causes of action: (1) fraud and deceit, (2) unfair business practices, (3) civil conspiracy, and (4) restitution. Plaintiffs' Complaint, &Par; 11-14, App. 99-101. It alleged "not less than $600" damages per class member, and in addition sought "appropriate multiple damages," exemplary and punitive damages, interest from date of injury, attorney's fees and costs, and other relief. Id., at 101-102. All four of the causes of action rested wholly on California statutory or common law; none rested in any fashion on federal law.
23
Nonetheless, petitioners removed the suit to the United States District Court for the Northern District of California, where respondent Brown filed a motion to remand on the ground that his action raised no federal question within the meaning of 28 U.S.C. § 1441(b). Respondent's motion was denied by the District Court, which stated that "[f]rom start to finish, plaintiffs have essentially alleged violations by defendants of federal antitrust laws." App. 192. The court reasoned that "[a]rtful pleading" by plaintiffs cannot "convert their essentially federal law claims into state law claims," and held that respondent's complaint was properly removed "because [it] concerned federal questions which could have been originally brought in Federal District Court without satisfying any minimum amount in controversy." Ibid. The court then dismissed the action, holding that, under the doctrine of res judicata, Brown II was barred by the adverse decision in an earlier suit in federal court (Brown I ) involving "the same parties, the same alleged offenses, and the same time periods." Ibid.
24
The Court of Appeals affirmed the District Court's decision not to remand, stating that "[t]he court below correctly held that the claims presented were federal in nature." 611 F.2d 1267, 1268 (CA9 1980) (memorandum on denial of reconsideration). However, the Court of Appeals reversed the District Court's order of dismissal, and remanded for trial.
II
25
The provision authorizing removal of actions from state to federal courts on the basis of a federal question2 is found in 28 U.S.C. § 1441(b):
26
"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."
27
Removability depends solely upon the nature of the plaintiff's complaint: an action may be removed to federal court only if a "right or immunity created by the Constitution or laws of the United States [constitutes] an element, and an essential one, of the plaintiff's cause of action." Gully v. First National Bank in Meridian, 299 U.S. 109, 112, 57 S.Ct. 96, 97, 81 L.Ed. 70 (1936). An action arising under state law may not be removed solely because a federal right or immunity is raised as a defense. Tennessee v. Union & Planters' Bank, 152 U.S. 454, 14 S.Ct. 654, 38 L.Ed. 511 (1894).
28
An important corollary is that "the party who brings a suit is master to decide what laws he will rely upon and therefore does determine whether he will bring a 'suit arising under' the . . . law[s] of the United States" by the allegations in his complaint. The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 33 S.Ct. 410, 411, 57 L.Ed. 716 (1913); accord, Great Northern R. Co. v. Alexander, 246 U.S. 276, 282, 38 S.Ct. 237, 240, 62 L.Ed. 713 (1918). Where the plaintiff's claim might be brought under either federal or state law, the plaintiff is normally free to ignore the federal question and rest his claim solely on the state ground. If he does so, the defendant has no general right of removal. Jones v. General Tire & Rubber Co., 541 F.2d 660, 664-665 (CA7 1976); La Chemise Lacoste v. Alligator Co., 506 F.2d 339, 346 (CA3 1974), cert. denied, 421 U.S. 937, 95 S.Ct. 1666, 44 L.Ed.2d 94 (1975); Warner Bros. Records, Inc. v. R. A. Ridges Distributing Co., 475 F.2d 262, 264 (CA10 1973); Coditron Corp. v. AFA Protective Systems, Inc., 392 F.Supp. 158, 160 (SDNY 1975).
29
This corollary is well grounded in principles of federalism. So long as States retain authority to legislate in subject areas in which Congress has legislated without preempting the field, and so long as state courts remain the preferred forum for interpretation and enforcement of state law, plaintiff must be permitted to proceed in state court under state law. It would do violence to state autonomy were defendants able to remove state claims to federal court merely because the plaintiff could have asserted a federal claim based on the same set of facts underlying his state claim. As this Court stated in Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-109, 61 S.Ct. 863, 872, 85 L.Ed. 1214 (1941):
30
"The power reserved to the states under the Constitution to provide for the determination of controversies in their courts, may be restricted only by the action of Congress in conformity to the Judiciary Articles of the Constitution. 'Due regard for the rightful independence of state governments, which should actuate federal courts, requires that they scrupulously confine their own jurisdiction to the precise limits which the statute has defined.' " (Quoting Healy v. Ratta, 292 U.S. 263, 270, 54 S.Ct. 700, 703, 78 L.Ed. 1248 (1934).)
31
The general rule that a plaintiff basing his claim solely on the state law thereby avoids removal applies only where state substantive law has not been pre-empted by federal law.
32
"[W]here the plaintiff has a right to relief either under federal law or under state law as an independent source of that right, the federal court on removal proceedings may not generally look beyond the face of the initial pleading in the state action to determine whether a federal question is presented. In certain areas, however, this either-or option is no longer available, for Congress has deemed that federal substantive law should altogether preempt and supplant state law. In such a case, where Congress has explicitly said that the exclusive source of a plaintiff's right to relief is to be federal law, it would be unacceptable to permit that very plaintiff, by the artful manipulation of the terms of complaint, to defeat a clearly enunciated congressional objective." Hearst Corp. v. Shopping Center Network, Inc., 307 F.Supp. 551, 556 (SDNY 1969) (emphasis in original) (citation omitted).
33
The federal court must therefore scrutinize the complaint in the removed case to determine whether the action, though ostensibly grounded solely on state law, is actually grounded on a claim in which federal law is the exclusive authority. See Sheeran v. General Electric Co., 593 F.2d 93, 96 (CA9), cert. denied, 444 U.S. 868, 100 S.Ct. 143, 62 L.Ed.2d 93 (1979); North American Phillips Corp. v. Emery Air Freight Corp., 579 F.2d 229, 233-234 (CA2 1978); New York v. Local 144, Hotel Nursing Home and Allied Health Services Union, 410 F.Supp. 225, 226-229 (SDNY 1976).3
34
This lawsuit concerns the area of antitrust in which federal laws have not displaced state law. See generally Mosk, State Antitrust Enforcement and Coordination with Federal Enforcement, 21 A.B.A. Antitrust Sections 358, 361-368 (1962). Thus, respondent Brown had the option of proceeding under state or federal law, or both. So far as is apparent from the complaint, which was carefully limited to four California state-law causes of action, this case arises wholly without reference to federal law. Under settled principles of federal jurisdiction, therefore, respondent's lawsuit should not have been removed to federal court. See Gully v. First National Bank in Meridian, supra, 299 U.S., at 113, 57 S.Ct., at 98.
35
The Court today nonetheless sustains removal of this action on the ground that "at least some of the claims had a sufficient federal character to support removal." Ante, at 397, n. 2. I do not understand what the Court means by this. Which of the claims are federal in character? Why are the claims federal in character? In my view, they are all predicated solely on California law.4 Certainly, none of them purports to state a claim under the federal antitrust laws, and the mere fact that plaintiffs might have chosen to proceed under the Clayton Act surely does not suffice to transmute their state claims into federal claims.
36
The Court relies on what it calls a "factual finding" by the District Court,5 with which the Court of Appeals agreed, that "respondents had attempted to avoid removal jurisdiction by 'artful[ly]' casting their 'essentially federal law claims' as state-law claims." Ibid. But this amounts to no more than a pejorative characterization of respondents' decision to proceed under state rather than federal, law. "Artful" or not, respondents' complaints were not based on any claim of a federal right or immunity, and were not, therefore, removable.6
III
37
Even assuming that this Court and the lower federal courts have jurisdiction to decide this case, however, I dissent from the Court's disposition of the res judicata issue. Having reached out to assume jurisdiction, the Court inexplicably recoils from deciding the case. The Court finds it "unnecessary" to reach the question of the res judicata effect of Brown I on respondents' "state-law claims." Ante, at 402 (emphasis in original). "It is enough for our decision here," the Court says, "that Brown I is res judicata as to respondents' federal-law claims." Ibid. But respondents raised only state-law claims; respondents did not raise any federal-law claims. Thus, if the Court fails to decide the disposition of respondents' state-law claims, it decides nothing. And in doing so, the Court introduces the possibility—heretofore foreclosed by our decisions7—that unarticulated theories of recovery may survive an unconditional dismissal of the lawsuit.
38
Like Justice BLACKMUN, I would hold that the dismissal of Brown I is res judicata not only as to every matter that was actually litigated, but also as to every ground or theory of recovery that might also have been presented. See ante, p. 402 (opinion concurring in judgment); 1B J. Moore & T. Currier, Moore's Federal Practice ¶ 0.410[2], p. 1163 (1980). An unqualified dismissal on the merits of a substantial federal antitrust claim precludes relitigation of the same claim on a state-law theory. Woods Exploration & Producing Co. v. Aluminum Co. of America, 438 F.2d 1286, 1312-1315 (CA5 1971), cert. denied, 404 U.S. 1047, 92 S.Ct. 701, 30 L.Ed.2d 736 (1972); Ford Motor Co. v. Superior Court, 35 Cal.App.3d 676, 680, 110 Cal.Rptr. 59, 61-62 (1973); see Restatement (Second) of Judgments § 61.1, Reporter's Note to Illustration 10, Comment e, pp. 178-179 (Tent.Draft No. 5, Mar. 10, 1978). The Court's failure to acknowledge this basic principle can only create doubts and confusion where none were before, and may encourage litigants to split their causes of action, state from federal, in hope that they might win a second day in court.
39
I therefore respectfully dissent, and would vacate the judgment of the Court of Appeals with instructions to remand to the District Court with instructions to remand to state court.
1
Petitioners have filed a supplemental memorandum with the Court indicating that Moitie II has been voluntarily dismissed, leaving Brown II as the subject of the petition.
2
The Court of Appeals also affirmed the District Court's conclusion that Brown II was properly removed to federal court, reasoning that the claims presented were "federal in nature." We agree that at least some of the claims had a sufficient federal character to support removal. As one treatise puts it, courts "will not permit plaintiff to use artful pleading to close off defendant's right to a federal forum . . . [and] occasionally the removal court will seek to determine whether the real nature of the claim is federal, regardless of plaintiff's characterization." 14 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3722, pp. 564-566 (1976) (citing cases) (footnote omitted). The District Court applied that settled principle to the facts of this case. After "an extensive review and analysis of the origins and substance of" the two Brown complaints, it found, and the Court of Appeals expressly agreed, that respondents had attempted to avoid removal jurisdiction by "artful[ly]" casting their "essentially federal law claims" as state-law claims. We will not question here that factual finding. See Prospect Dairy, Inc. v. Dellwood Dairy Co., 237 F.Supp. 176 (NDNY 1964); In re Wiring Device Antitrust Litigation, 498 F.Supp. 79 (EDNY 1980); Three J Farms, Inc. v. Alton Box Board Co., 1979-1 Trade Cases ¶ 62,423 (SC 1978), rev'd on other grounds, 609 F.2d 112 (CA4 1979), cert. denied, 445 U.S. 911, 100 S.Ct. 1090, 63 L.Ed.2d 327 (1980).
3
The dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) is a "judgment on the merits." See Angel v. Bullington, 330 U.S. 183, 190, 67 S.Ct. 657, 661, 91 L.Ed. 832 (1947); Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946).
4
The decision below also conflicts with those of other Courts of Appeals holding that an adverse judgment from which no appeal has been taken is res judicata and bars any future action on the same claim, even if an authoritative contrary judicial decision on the legal issues involved is subsequently rendered in another case. E. g., National Association of Broadcasters v. FCC, 180 U.S.App.D.C. 259, 265, 554 F.2d 1118, 1124 (1976) ("It is the generally accepted rule in civil cases that where less than all of the several co-parties appeal from an adverse judgment, a reversal as to the parties appealing does not necessitate or justify a reversal as to the parties not appealing"); Clouatre v. Houston Fire & Cas. Co., 229 F.2d 596, 597-598 (CA5 1956); Appleton Toy & Furniture Co. v. Lehman Co., 165 F.2d 801, 802 (CA7 1948); Ripperger v. A. C. Allyn & Co., 113 F.2d 332, 333 (CA2), cert. denied, 311 U.S. 695, 61 S.Ct. 136, 85 L.Ed. 450 (1940).
*
The Court of Appeals' reliance, 611 F.2d 1267, 1269 (CA9 1980), on Uresti ; Kvenild v. Taylor, 594 P.2d 972 (Wyo.1979); and In re Estate of McDill, 14 Cal.3d 831, 537 P.2d 874, 122 Cal.Rptr. 754 (1975), appears to me to be clearly misplaced. Unlike those cases, this is not one in which the appealing and nonappealing parties made competing claims to a single piece of property, see McDill, or in which reversal only as to the appealing party would have unjustly left the nonappealing party liable, see Kvenild, or without recourse on his cross-claim, see Uresti.
1
Since the action by respondent Moitie has been voluntarily dismissed, the only remaining issues concern the claims of respondent Brown.
2
As the District Court acknowledged, Brown II could not be removed on the basis of diversity of citizenship, because the amount in controversy did not exceed $10,000. App. 190. The court correctly noted, however, that the action could have been removed without regard to the amount in controversy, if it could have been brought as an original action in federal court without meeting any minimum amount in controversy. Ibid. Actions under the Clayton Act, 15 U.S.C. § 15, may be brought in federal court without regard to amount in controversy. See also Pub.L. 96-486, §§ 2(a), 4, 94 Stat. 2369-2370, 28 U.S.C. § 1331 (1976 ed., Supp.IV), and note following § 1331 (repeal of minimum amount in controversy for federal-question cases pending as of date of enactment).
3
In this context, it is often said that a plaintiff may not "fraudulently" defeat removal by manipulation of the complaint. See, e. g., Sheeran v. General Electric Co., 593 F.2d, at 96; Jones v. General Tire & Rubber Co., 541 F.2d 660, 664-665 (CA7 1976); see also Great Northern R. Co. v. Alexander, 246 U.S. 276, 281, 282, 38 S.Ct. 237, 239, 240, 62 L.Ed. 713 (1918). Where, however, both state and federal laws would support a claim, it makes little sense to suggest that the plaintiff acts "fraudulently" if he chooses to proceed under state law in state court rather than under federal law in federal court. See Romick v. Bekins Van & Storage Co., 197 F.2d 369, 371 (CA5 1952).
4
Indeed, the Court admits that the additional claims in Brown II, not included in Brown I, such as unfair competition, fraud, and restitution, are "state-law claims." Ante, at 402.
5
The District Court did not consider this conclusion a "factual finding." It was included in a section of the District Court opinion devoted to legal analysis, not in the section entitled "Facts." Compare App. 187-190 with id., at 190-192. In any event, a court's conclusion concerning the legal character of a complaint can hardly be considered a "factual finding."
6
The decisions cited by the Court in support of its approach, all from District Courts, are inapplicable. In re Wiring Device Antitrust Litigation, 498 F.Supp. 79 (EDNY 1980), and Three J Farms, Inc. v. Alton Box Board Co., 1979-1 Trade Cases ¶ 62,423, p. 76,550 (SC 1978), rev'd on other grounds, 609 F.2d 112 (CA4 1979), cert. denied, 445 U.S. 911, 100 S.Ct. 1090, 63 L.Ed.2d 327 (1980), were cases in which the State itself had confined application of the state antitrust laws to purely intrastate commerce, thus leaving federal law the sole basis for suit. Similarly, Prospect Dairy, Inc. v. Dellwood Dairy Co., 237 F.Supp. 176 (NDNY 1964), concerned a claim of an unfair labor practice, which is governed exclusively by federal law. See 29 U.S.C. § 187; Teamsters v. Morton, 377 U.S. 252, 84 S.Ct. 1253, 12 L.Ed.2d 280 (1964).
Admittedly, some courts have not strictly observed the restrictions on removal jurisdiction. See, e. g., In re Carter, 618 F.2d 1093, 1101 (CA5 1980), cert. denied sub nom. Sheet Metal Workers v. Carter, 450 U.S. 949, 101 S.Ct. 1410, 67 L.Ed.2d 378 (1981). 14 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3722, pp. 564-566 (1976), reports that "occasionally the removal court will seek to determine whether the real nature of the claim is federal, regardless of plaintiff's characterization." (Footnote omitted.) Perusal of the cited decisions, however, reveals that most of them correctly confine this practice to areas of the law pre-empted by federal substantive law.
7
See Brown v. Felsen, 442 U.S. 127, 131, 99 S.Ct. 2205, 2209, 60 L.Ed.2d 767 (1979); United States v. Munsingwear, Inc. 340 U.S. 36, 38, 71 S.Ct. 104, 105, 95 L.Ed. 36 (1950); Commissioner v. Sunnen, 333 U.S. 591, 597, 68 S.Ct. 715, 719, 92 L.Ed. 898 (1948); Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 378, 60 S.Ct. 317, 320, 84 L.Ed. 329 (1940); Cromwell v. County of Sac, 94 U.S. 351, 352-353, 24 L.Ed. 681 (1877).
| 89
|
452 U.S. 429
101 S.Ct. 3074
69 L.Ed.2d 132
UNITED STATES, plaintiff,v.State of MAINE, et al
No. 35
Supreme Court of the United States
June 15, 1981
1
On Joint Motion for Entry of Supplemental Decree (Massachusetts Boundary Case).
2
The Report of the Special Master is received and ordered filed.
SUPPLEMENTAL DECREE
3
The Court's Special Master having filed a Report recommending the entry of a supplemental decree for the purpose of defining with greater particularity the boundary line between the submerged lands of the United States and the submerged lands of the Commonwealth of Massachusetts, as contemplated by the Court's Decree of October 6, 1975, 423 U.S. 1, 96 S.Ct. 23, 46 L.Ed.2d 1, and the Court's Order of June 29, 1977, 433 U.S. 917, 97 S.Ct. 2994, 53 L.Ed.2d 1104, appointing the Honorable Walter E. Hoffman as Special Master in this cause, and the United States and the Commonwealth of Massachusetts having stated their acquiescence in the recommendations of the said Report:
4
IT IS ORDERED, ADJUDGED, AND DECREED AS FOLLOWS:
5
1. The coastline of the Commonwealth of Massachusetts, as that term is used in the Court's Decree herein dated October 6, 1975, shall be, in the area hereafter specified:
6
(a) A straight line running southwesterly from a point on the mean low water line at Eastern Point on Cape Ann (approximately 42x 34'45"N, 70x 39'43"W on NOS Chart 13267, 18th Ed.) to a point on the mean low water line seaward of Strawberry Point (approximately 42x 15'31"N, 70x 46'05"W on the same NOS Chart) thence southeasterly along the line of ordinary mean low water (including closing lines across Scituate Harbor and the North River) to Brant Rock (approximately 42x 05'29"N, 70x 38'15"W on the same NOS Chart), thence a straight line running easterly to a point on the mean low water line at Race Point on Cape Cod (approximately 42x 03'46"N, 70x 14'51"W on the same NOS Chart);
7
(b) A straight line running southeasterly from a point on the mean low water line at Gooseberry Neck (approximately 41x 28'43"N, 71x 02'05"W on NOS Chart 13218, 21st Ed.) to a point on the mean low water line on the southwestern extremity of Cuttyhunk Island (approximately 41x 24'44"N, 70x 57'07"W on the same NOS Chart).
8
2. The reference to the Special Master appointed by the Court on June 29, 1977, is continued in effect, under the terms of the Court's Order of that date, and he is directed to proceed with the cause, holding such further proceedings as may seem advisable until all remaining issues referred to him are ready for submission to the Court by his further report.
9
3. The Court retains jurisdiction to entertain such further proceedings, enter such orders, and issue such writs as may from time to time be deemed necessary or advisable to give proper force and effect to this decree or to effectuate the rights of the parties in the premises.
10
Justice MARSHALL took no part in the consideration or decision of this matter.
| 910
|
452 U.S. 456
101 S.Ct. 3075
69 L.Ed.2d 156
State of MARYLAND, et al.v.State of LOUISIANA
No. 83
Supreme Court of the United States
June 15, 1981
1
June 15, 1981.
2
On bill of complaint.
DECREE
3
This cause having come on to be heard on the exceptions to the Reports of the Special Master dated May 14, 1980, and September 15, 1980, and having been argued by counsel and this Court having stated its conclusions in its opinion announced May 26, 1981, 451 U.S. 725, 101 S.Ct. 2114, 68 L.Ed.2d 576 (1981), and having considered the positions of the respective parties as to the terms of this decree, IT IS ORDERED, ADJUDGED, AND DECREED AS FOLLOWS:
4
1. The exceptions of the defendant State of Louisiana to the Report of the Special Master dated May 14, 1980, are overruled and accordingly:
5
(a) the motions of the State of New Jersey, the United States and the Federal Energy Regulatory Commission, and Columbia Gas Transmission Corporation et al., for leave to intervene as party plaintiffs are granted; and
6
(b) the motion of Associated Gas Distributors for leave to file a brief as amicus curiae is granted.
7
2. The exceptions of the defendant State of Louisiana to the Report of the Special Master dated September 15, 1980, are overruled, the plaintiff's exceptions are sustained to the extent indicated in this Court's opinion, and accordingly:
8
(a) the motion of the defendant State of Louisiana to dismiss the bill of complaint is denied; and
9
(b) the motion of the plaintiff States for judgment on the pleadings is granted in part.
10
3. The motion of the plaintiff States for entry of decree and the motion of the Solicitor General for entry of decreeare granted. The motion of the defendant State of Louisiana for entry of decree is denied.
11
4. Section 1 of the Louisiana First Use Tax Act, La.Rev.Stat.Ann. § 47:1303 C (West Supp.1981), violates the Supremacy Clause and the Louisiana First Use Tax Act, La.Rev.Stat.Ann. SS 47:1301-47:1307 (West Supp.1981), is unconstitutional under the Commerce Clause.
12
5. Effective with the date of entry of this decree, the defendant State of Louisiana, its officers, agents, and employees are permanently enjoined and prohibited from collecting the Louisiana First Use Tax.
13
6. Within thirty (30) days after the entry of this decree, the defendant State of Louisiana shall:
14
(a) render to the plaintiffs and file with the Court a true, full, accurate, and appropriate account of any and all revenues collected pursuant to the First Use Tax Act and of the interest earned by the defendant as a result of its investment of these revenues and the interest earned thereon; and
15
(b) refund to the taxpayers any and all revenues collected pursuant to the First Use Tax together with any and all interest earned as a result of its investment of these revenues and the interest earned thereon, but to the extent that the First Use Tax revenues and the interest earned thereon have been invested by the defendant State of Louisiana in interest-bearing securities, the defendant State of Louisiana shall transfer to the taxpayers the proceeds of principal and interest from such securities as each of such securities matures.
16
7. The Court retains jurisdiction to entertain such further proceedings, enter such orders, and issue such writs as may from time to time be deemed necessary or advisable to give proper force and effect to this decree or to effectuate the rights of the parties in the premises.
17
Justice POWELL took no part in the consideration or decision of these motions or this decree.
| 1011
|
452 U.S. 264
101 S.Ct. 2352
69 L.Ed.2d 1
Donald Paul HODEL, Acting Secretary of the Interior, Appellant,v.VIRGINIA SURFACE MINING AND RECLAMATION ASSOCIATION, INC., et al. VIRGINIA SURFACE MINING AND RECLAMATION ASSOCIATION, INC., et al., Appellants, v. Donald Paul HODEL, Acting Secretary of the Interior, et al.
Nos. 79-1538, 79-1596.
Argued Feb. 23, 1981.
Decided June 15, 1981.
Syllabus
A pre-enforcement challenge to the constitutionality of the Surface Mining Control and Reclamation Act of 1977 (Act) was presented in a Federal District Court action wherein the plaintiffs were an association of coal producers engaged in surface coal mining operations in Virginia, some of its member coal companies, individual landowners, the Commonwealth of Virginia, and a town (hereinafter appellees). The Act is designed to establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations. The Secretary of the Interior (Secretary) has primary responsibility for administering the Act by promulgating regulations and enforcing its provisions. A two-stage program for the regulation of surface mining—an interim phase and a permanent phase—is established; and environmental protection performance standards are prescribed. Ultimately, a regulatory program is to be adopted for each State, either by approval of a State's proposed permanent program that meets federal minimum standards, or by adoption of a federal program for any State that chooses not to submit a program. Enforcement of the permanent programs rests either with the participating State or with the Secretary as to nonparticipating States. The District Court, although rejecting appellees' Commerce Clause, equal protection, and substantive due process challenges to the Act, held that the Act violates the Tenth Amendment, that various provisions of the Act effect an uncompensated taking of private property in violation of the Just Compensation Clause of the Fifth Amendment, and that some of the Act's enforcement provisions violate procedural due process requirements.
Held: In the context of a facial challenge, the Act is constitutional. Pp. 275-305. (a) The Act does not violate the Commerce Clause as regulating the use of private lands rather than the interstate commerce effects of surface coal mining. In view of the legislative record, which includes extended hearings concerning the effects of surface mining on the Nation's environment and economy and the need for uniform minimum nationwide standards, it cannot be said that Congress did not have a rational basis for its findings, set out in the Act itself, that surface coal mining has substantial effects on interstate commerce. And the Act's regulatory scheme is reasonably related to the goals Congress sought to accomplish the Act's restrictions on the practices of mine operators all serving to control the environmental and other adverse effects of surface coal mining. Pp. 275-283.
(b) Sections 515(d) and (e) of the Act, which prescribe performance standards on "steep slopes," including a requirement that an operator return the site to its "approximate original contour," and which authorize variances from the contour requirement, do not violate any Tenth Amendment limitation on congressional exercise of the commerce power as interfering with the States' "traditional governmental function" of regulating land use. The steep-slope provisions govern only the activities of coal mine operators who are private individuals and businesses, and do not regulate the "States as States." Cf. National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245. Appellees' contentions that the threat of federal usurpation of their regulatory roles coerces the States into enforcing the Act and that the Act regulates the States as States because it establishes mandatory minimum federal standards are without merit, since the Tenth Amendment does not limit congressional power to preempt or displace state regulation of private activities affecting interstate commerce. Moreover, Congress does not invade areas reserved to the States by the Tenth Amendment simply because it exercises its authority under the Commerce Clause in a manner that displaces the States' exercise of their police powers. Pp. 283-293.
(c) The issue whether the Act's steep-slope provisions and § 522(e), which prohibits mining in certain locations, violate the Just Compensation Clause of the Fifth Amendment is not ripe for judicial resolution. Because appellees' taking claim arose in the context of a facial challenge, it presented no concrete controversy concerning either application of the Act to particular surface mining operations or its effect on specific parcels of land. And the "mere enactment" of the Act does not constitute a taking since it does not deny an owner economically viable use of his land, the Act, except for § 522(e) neither categorically prohibiting surface coal mining nor purporting to regulate alternative uses to which coal-bearing lands may be put. Pp. 293-297. (d) The provisions of §§ 521, 525, and 526 of the Act pertaining to the Secretary's issuance of orders for immediate cessation of a surface mining operation determined to be in violation of the Act do not violate the Fifth Amendment's Due Process Clause. Summary administrative action resulting in deprivation of a significant property interest without a prior hearing is justified when, as here, it responds to situations in which swift action is necessary to protect the public health and safety. The objective criteria for the issuance of immediate cessation orders, established by the Act, and the Secretary's implementing regulations, are specific enough to control governmental action and reduce the risk of erroneous deprivation, and mine operators are afforded a prompt and adequate postdeprivation administrative hearing and an opportunity for judicial review. And the District Court erred in reducing to 24 hours the statutorily prescribed 5-day period for the Secretary's response to mine operators' requests for temporary relief from an immediate cessation order. The record does not show that the Secretary has not responded or will not respond in less than five days, which is the statutory maximum, and appellees have not demonstrated that they have been adversely affected by the 5-day period in a particular case or that it is generally unreasonable. In addition, no evidence was introduced to show that a shorter reply period is administratively feasible. Pp. 298-303.
(e) Appellees' due process challenge to the Act's provisions for the imposition of civil penalties for violations of cessation orders is premature. Appellees did not allege that they, or any one of them, have had civil penalties assessed against them, and there was no finding that any of appellee coal mine operators have been affected or harmed by any of statutory procedures for the assessment and collection of fines. P.p. 303-304.
D.C., 483 F.Supp. 425, affirmed in part, reversed in part, and remanded.
Peter Buscemi, Washington, D. C., for appellant in 78-1538 and for appellees in 79-1596.
Marshall Coleman, Richmond, Va., for appellees in 79-1538 and for appellants in 79-1596.
[Amicus Curiae Information from pages 267-268 intentionally omitted]
Justice MARSHALL, delivered the opinion of the Court.
1
These cases arise out of a pre-enforcement challenge to the constitutionality of the Surface Mining Control and Reclamation Act of 1977 (Surface Mining Act or Act), 91 Stat. 447, 30 U.S.C. § 1201 et seq. (1976 ed., Supp.III). The United States District Court for the Western District of Virginia declared several central provisions of the Act unconstitutional and permanently enjoined their enforcement. 483 F.Supp. 425 (1980). In these appeals, we consider whether Congress, in adopting the Act, exceeded its powers under the Commerce Clause of the Constitution,1 or transgressed affirmative limitations on the exercise of that power contained in the Fifth and Tenth Amendments. We conclude that in the context of a facial challenge, the Surface Mining Act does not suffer from any of these alleged constitutional defects, and we uphold the Act as constitutional.
2
* A.
3
The Surface Mining Act is a comprehensive statute designed to "establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations." § 102(a), 30 U.S.C. § 1202(a) (1976 ed., Supp.III). Title II of the Act, 30 U.S.C. § 1211 (1976 ed., Supp.III), creates the Office of Surface Mining Reclamation and Enforcement (OSM), within the Department of the Interior, and the Secretary of the Interior (Secretary) acting through OSM, is charged with primary responsibility for administering and implementing the Act by promulgating regulations and enforcing its provisions. § 201(c), 30 U.S.C. § 1211(c) (1976 ed., Supp.III). The principal regulatory and enforcement provisions are contained in Title V of the Act, 91 Stat. 467-514, 30 U.S.C. §§ 1251-1279 (1976 ed., Supp.III). Section 501, 30 U.S.C. § 1251 (1976 ed., Supp.III), establishes a two-stage program for the regulation of surface coal mining: an initial, or interim regulatory phase, and a subsequent, permanent phase. The interim program mandates immediate promulgation and federal enforcement of some of the Act's environmental protection performance standards, complemented by continuing state regulation. Under the permanent phase, a regulatory program is to be adopted for each State, mandating compliance with the full panoply of federal performance standards, with enforcement responsibility lying with either the State or Federal Government.
4
Section 501(a) directs the Secretary to promulgate regulations establishing an interim regulatory program during which mine operators will be required to comply with some of the Act's performance standards, as specified by § 502(c), 30 U.S.C. § 1252(c) (1976 ed., Supp.III). Included among those selected standards are requirements governing: (a) restoration of land after mining to its prior condition; (b) restoration of land to its approximate original contour; (c) segregation and preservation of topsoil; (d) minimization of disturbance to the hydrologic balance; (e) construction of coal mine waste piles used as dams and embankments; (f) revegetation of mined areas; and (g) spoil disposal. § 515(b), 30 U.S.C. § 1265(b) (1976 ed., Supp.III).2 The interim regulations were published on December 13, 1977, see 42 Fed.Reg. 62639,3 and they are currently in effect in most States, including Virginia.4
5
The Secretary is responsible for enforcing the interim regulatory program. § 502(e), 30 U.S.C. § 1252(e) (1976 ed., Supp. III). A federal enforcement and inspection program is to be established for each State, and is to remain in effect until a permanent regulatory program is implemented in the State. States may issue permits for surface mining operations during the interim phase, but operations authorized by such permits must comply with the federal interim performance standards. § 502(b), 30 U.S.C. § 1252(b) (1976 ed., Supp. III). States may also pursue their own regulatory and inspection programs during the interim phase, and they may assist the Secretary in enforcing the interim standards.5 The States are not, however, required to enforce the interim regulatory standards and, until the permanent phase of the program, the Secretary may not cede the Federal Government's independent enforcement role to States that wish to conduct their own regulatory programs.
6
Section 501(b), 30 U.S.C. § 1251(b) (1976 ed., Supp. III), directs the Secretary to promulgate regulations establishing a permanent regulatory program incorporating all the Act's performance standards. The Secretary published the permanent regulations on March 13, 1979, see 44 Fed.Reg. 14902, but these regulations do not become effective in a particular State until either a permanent state program, submitted and approved in accordance with § 503 of the Act, or a permanent federal program for the State, adopted in accordance with § 504, is implemented.
7
Under § 503, any State wishing to assume permanent regulatory authority over the surface coal mining operations on "non-Federal lands"6 within its borders must submit a proposed permanent program to the Secretary for his approval. The proposed program must demonstrate that the state legislature has enacted laws implementing the environmental protection standards established by the Act and accompanying regulations, and that the State has the administrative and technical ability to enforce these standards. 30 U.S.C. § 1253 (1976 ed., Supp. III). The Secretary must approve or disapprove each such proposed program in accordance with time schedules and procedures established by §§ 503(b)(c), 30 U.S.C. §§ 1253(b), (c) (1976 ed., Supp. III).7 In addition, the Secretary must develop and implement a federal permanent program for each State that fails to submit or enforce a satisfactory state program. § 504, 30 U.S.C. § 1254 (1976 ed., Supp. III). In such situations, the Secretary constitutes the regulatory authority administering the Act within that State and continues as such unless and until a "state program" is approved. No later than eight months after adoption of either a state-run or federally administered permanent regulatory program for a State, all surface coal mining and reclamation operations on "non-Federal lands" within that State must obtain a new permit issued in accordance with the applicable regulatory program. § 506(a), 30 U.S.C. § 1256(a) (1976 ed., Supp. III).
8
On October 23, 1978, the Virginia Surface Mining and Reclamation Association, Inc., an association of coal producers engaged in surface coal mining operations in Virginia, 63 of its member coal companies, and 4 individuals landowners filed suit in Federal District Court seeking declaratory and injunctive relief against various provisions of the Act. The Commonwealth of Virginia and the town of Wise, Va., intervened as plaintiffs.8 Plaintiffs' challenge was primarily directed at Title V's performance standards.9 Because the permanent regulatory program was not scheduled to become effective until June 3, 1980, plaintiffs' challenge was directed at the sections of the Act establishing the interim regulatory program. Plaintiffs alleged that these provisions violate the Commerce Clause, the equal protection and due process guarantees of the Due Process Clause of the Fifth Amendment,10 the Tenth Amendment,11 and the Just Compensation Clause of the Fifth Amendment.12
9
The District Court held a 13-day trial on plaintiffs' request for a permanent injunction. The court subsequently issued an order and opinion declaring several central provisions of the Act unconstitutional. 483 F.Supp. 425 (1980). The court rejected plaintiffs' Commerce Clause, equal protection, and substantive due process challenges to the Act. The court held, however, that the Act "operates to 'displace the States' freedom to structure integral operations in areas of traditional functions,' . . . and, therefore, is in contravention of the Tenth Amendment." Id., at 435, quoting National League of Cities v. Usery, 426 U.S. 833, 852, 96 S.Ct. 2465, 2474, 49 L.Ed.2d 245 (1976). The court also ruled that various provisions of the Act effect an uncompensated taking of private property in violation of the Just Compensation Clause of the Fifth Amendment. Finally, the court agreed with plaintiffs' due process challenges to some of the Act's enforcement provisions. The court permanently enjoined the Secretary from enforcing various provisions of the Act.13
10
In No. 79-1538, the Secretary appeals from that portion of the District Court's judgment declaring various sections of the Act unconstitutional and permanently enjoining their enforcement. In No. 79-1596, plaintiffs cross-appeal from the District Court's rejection of their Commerce Clause challenge to the Act.14 Because of the importance of the issues raised, we noted probable jurisdiction of both appeals,15 449 U.S. 817, 101 S.Ct. 67, 66 L.Ed.2d 19 (1980), and consolidated the two cases.16 For convenience, we shall usually refer to plaintiffs as "appellees."
II
11
On cross-appeal, appellees argue that the District Court erred in rejecting their challenge to the Act as beyond the scope of congressional power under the Commerce Clause. They insist that the Act's principal goal is regulating the use of private lands within the borders of the States and not, as the District Court found, regulating the interstate commerce effects of surface coal mining. Consequently, appellees contend that the ultimate issue presented is "whether land as such is subject to regulation under the Commerce Clause, i. e. whether land can be regarded as 'in commerce.' " Brief for Virginia Surface Mining & Reclamation Association, Inc., et al. 12 (emphasis in original). In urging us to answer "no" to this question, appellees emphasize that the Court has recognized that land-use regulation is within the inherent police powers of the States and their political subdivisions,17 and argue that Congress may regulate land use only insofar as the Property Clause18 grants it control over federal lands.
12
We do not accept either appellees' framing of the question or the answer they would have us supply. The task of a court that is asked to determine whether a particular exercise of congressional power is valid under the Commerce Clause is relatively narrow. The court must defer to a congressional finding that a regulated activity affects interstate commerce, if there is any rational basis for such a finding. Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258, 85 S.Ct. 348, 358, 13 L.Ed.2d 258 (1964); Katzenbach v. McClung, 379 U.S. 294, 303-304, 85 S.Ct. 377, 383, 13 L.Ed.2d 290 (1964). This established, the only remaining question for judicial inquiry is whether "the means chosen by [Congress] must be reasonably adapted to the end permitted by the Constitution." Heart of Atlanta Motel, Inc. v. United States, supra, at 262, 85 S.Ct., at 360. See United States v. Darby, 312 U.S. 100, 121, 61 S.Ct. 451, 460, 85 L.Ed. 609 (1941); Katzenbach v. McClung, 379 U.S., at 304, 85 S.Ct., at 383. The judicial task is at an end once the court determines that Congress acted rationally in adopting a particular regulatory scheme. Ibid.
13
Judicial review in this area is influenced above all by the fact that the Commerce Clause is a grant of plenary authority to Congress. See National League of Cities v. Usery, supra, at 840, 96 S.Ct., at 2468; Cleveland v. United States, 329 U.S. 14, 19, 67 S.Ct. 13, 15, 91 L.Ed. 12 (1946); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37, 57 S.Ct. 615, 624, 81 L.Ed. 893 (1937). This power is "complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the constitution." Gibbons v. Ogden, 9 Wheat. 1, 196, 6 L.Ed. 23 (1824). Moreover, this Court has made clear that the commerce power extends not only to "the use of channels of interstate or foreign commerce" and to "protection of the instrumentalities of interstate commerce . . . or persons or things in commerce," but also to "activities affecting commerce." Perez v. United States, 402 U.S. 146, 150, 91 S.Ct. 1357, 1359, 28 L.Ed.2d 686 (1971). As we explained in Fry v. United States, 421 U.S. 542, 547, 95 S.Ct. 1792, 1795, 44 L.Ed.2d 363 (1975), "[e]ven activity that is purely intrastate in character may be regulated by Congress, where the activity, combined with like conduct by others similarly situated, affects commerce among the States or with foreign nations." See National League of Cities v. Usery, 426 U.S., at 840, 96 S.Ct., at 2468; Heart of Atlanta Motel, Inc. v. United States, supra, 379 U.S., at 255, 85 S.Ct., at 356; Wickard v. Filburn, 317 U.S. 111, 127-128, 63 S.Ct. 82, 90, 87 L.Ed. 122 (1942); United States v. Wrightwood Dairy Co., 315 U.S. 110, 119, 62 S.Ct. 523, 526, 86 L.Ed. 726 (1942); United States v. Darby, supra, 312 U.S., at 120-121, 61 S.Ct., at 460.
14
Thus, when Congress has determined that an activity affects interstate commerce, the courts need inquire only whether the finding is rational. Here, the District Court properly deferred to Congress' express findings, set out in the Act itself, about the effects of surface coal mining on interstate commerce. Section 101(c), 30 U.S.C. § 1201(c) (1976 ed., Supp. III), recites the congressional finding that
15
"many surface mining operations result in disturbances of surface areas that burden and adversely affect commerce and the public welfare by destroying or diminishing the utility of land for commercial, industrial, residential, recreational, agricultural, and forestry purposes, by causing erosion and landslides, by contributing to floods, by polluting the water, by destroying fish and wildlife habitats, by impairing natural beauty, by damaging the property of citizens, by creating hazards dangerous to life and property by degrading the quality of life in local communities, and by counteracting governmental programs and efforts to conserve soil, water, and other natural resources."
16
The legislative record provides ample support for these statutory findings. The Surface Mining Act became law only after six years of the most thorough legislative consideration.19 Committees of both Houses of Congress held extended hearings during which vast amounts of testimony and umentary evidence about the effects of surface mining on our Nation's environment and economy were brought to Congress' attention. Both Committees made detailed findings about these effects and the urgent need for federal legislation to address the problem. The Senate Report explained that
17
"[s]urface coal mining activities have imposed large social costs on the public . . . in many areas of the country in the form of unreclaimed lands, water pollution, erosion, floods, slope failures, loss of fish and wildlife resources, and a decline in natural beauty." S.Rep.No.95-128, p. 50 (1977).
18
See id., at 50-54.
19
Similarly, the House Committee documented the adverse effects of surface coal mining on interstate commerce as including:
20
" 'Acid drainage which has ruined an estimated 11,000 miles of streams; the loss of prime hardwood forest and the destruction of wildlife habitat by strip mining; the degrading of productive farmland; recurrent landslides; siltation and sedimentation of river systems. . . .' " H.R.Rep.No.95-218, p. 58 (1977), U.S.Code Cong. & Admin.News 1977, p. 596, quoting H.R.Rep.No.94-1445, p. 19 (1976).
21
And in discussing how surface coal mining affects water resources and in turn interstate commerce, the House Committee explained:
22
"The most widespread damages . . . are environmental in nature. Water users and developers incur significant economic and financial losses as well.
23
"Reduced recreational values, fishkills, reductions in normal waste assimilation capacity, impaired water supplies, metals and masonry corrosion and deterioration, increased flood frequencies and flood damages, reductions in designed water storage capacities at impoundments, and higher operating costs for commercial waterway users are some of the most obvious economic effects that stem from mining-related pollution and sedimentation." H.R.Rep.No.95-218, at 59, U.S.Code Cong. & Admin.News 1977, p. 597.
24
See id., at 96-122.
25
The Committees also explained that inadequacies in existing state laws and the need for uniform minimum nationwide standards made federal regulations imperative. See S.Rep.No.95-128, at 49; H.R.Rep.No.95-218, at 58. In light of the evidence available to Congress and the detailed consideration that the legislation received, we cannot say that Congress did not have a rational basis for concluding that surface coal mining has substantial effects on interstate commerce.
26
Appellees do not, in general, dispute the validity of the congressional findings.20 Rather, appellees' contention is that the "rational basis" test should not apply in this case because the Act regulates land use, a local activity not affecting interstate commerce. But even assuming that appellees correctly characterize the land use regulated by the Act as a "local" activity, their argument is unpersuasive.
27
The denomination of an activity as a "local" or "intrastate" activity does not resolve the question whether Congress may regulate it under the Commerce Clause. As previously noted, the commerce power "extends to those activities intrastate which so affect interstate commerce, or the exertion of the power of Congress over it, as to make regulation of them appropriate means to the attainment of a legitimate end, the effective execution of the granted power to regulate interstate commerce." United States v. Wrightwood Dairy Co., 315 U.S., at 119, 62 S.Ct., at 526. See Fry v. United States, 421 U.S., at 547, 95 S.Ct., at 1795; NLRB v. Jones & Laughlin Steel Corp., 301 U.S., at 37, 57 S.Ct., at 624. This Court has long held that Congress may regulate the conditions under which goods shipped in interstate commerce are produced where the "local" activity of producing these goods itself affects interstate commerce. See, e. g., United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609 (1941); Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942); NLRB v. Jones & Laughlin Steel Corp., supra; Kirschbaum Co. v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638 (1942). Cf. Katzenbach v. McClung, 379 U.S. 294, 85 S.Ct. 377, 13 L.Ed.2d 290 (1964). Appellees do not dispute that coal is a commodity that moves in interstate commerce. Here, Congress rationally determined that regulation of surface coal mining is necessary to protect interstate commerce from adverse effects that may result from that activity. This congressional finding is sufficient to sustain the Act as a valid exercise of Congress' power under the Commerce Clause.
28
Moreover, the Act responds to a congressional finding that nationwide "surface mining and reclamation standards are essential in order to insure that competition in interstate commerce among sellers of coal produced in different States will not be used to undermine the ability of the several States to improve and maintain adequate standards on coal mining operations within their borders." 30 U.S.C. § 1201(g) (1976 ed., Supp. III). The prevention of this sort of destructive interstate competition is a traditional role for congressional action under the Commerce Clause. In United States v. Darby, supra, the Court used a similar rationale to sustain the imposition of federal minimum wage and maximum hour regulations on a manufacturer of goods shipped in interstate commerce. The Court explained that the statute implemented Congress' view that "interstate commerce should not be made the instrument of competition in the distribution of goods produced under substandard labor conditions, which competition is injurious to the commerce and to the states from and to which the commerce flows." Id. 312 U.S., at 115, 61 S.Ct., at 457. The same rationale applies here to support the conclusion that the Surface Mining Act is within the authority granted to Congress by the Commerce Clause.
29
Finally, we agree with the lower federal courts that have uniformly found the power conferred by the Commerce Clause broad enough to permit congressional regulation of activities causing air or water pollution, or other environmental hazards that may have effects in more than one State.21 Appellees do not dispute that the environmental and other problems that the Act attempts to control can properly be addressed through Commerce Clause legislation. In these circumstances, it is difficult to find any remaining foundation for appellees' argument that, because it regulates a particular land use, the Surface Mining Act is beyond congressional Commerce Clause authority. Accordingly, we turn to the question whether the means selected by Congress were reasonable and appropriate.
30
Appellees' essential challenge to the means selected by the Act is that they are redundant or unnecessary. Appellees contend that a variety of federal statutes such as the Clean Air Act, 42 U.S.C. § 7401 et seq. (1976 ed. Supp. III), the Flood Control Acts, 33 U.S.C. § 701 et seq. (1976 ed., and Supp. III), and the Clean Water Act, 33 U.S.C. § 1251 et seq. (1976 ed., and Supp. III), adequately address the federal interest in controlling the environmental effects of surface coal mining without need to resort to the land-use regulation scheme of the Surface Mining Act. The short answer to this argument is that the effectiveness of existing laws in dealing with a problem identified by Congress is ordinarily a matter committed to legislative judgment. Congress considered the effectiveness of existing legislation and concluded that additional measures were necessary to deal with the interstate commerce effects of surface coal mining. See H.R.Rep.No.95-218, at 58-60; S.Rep.No.95-128, at 59-63. And we agree with the court below that the Act's regulatory scheme is reasonably related to the goals Congress sought to accomplish. The Act's restrictions on the practices of mine operators all serve to control the environmental and other adverse effects of surface coal mining.
31
In sum, we conclude that the District Court properly rejected appellees' Commerce Clause challenge to the Act. We therefore turn to the court's ruling that the Act contravenes affirmative constitutional limitations on congressional exercise of the commerce power.
III
32
The District Court invalidated §§ 515(d) and (e) of the Act, which prescribe performance standards for surface coal mining on "steep slopes,"22 on the ground that they violate a constitutional limitation on the commerce power imposed by the Tenth Amendment. These provisions require "steep-slope" operators: (i) to reclaim the mined area by completely covering the highwall and returning the site to its "approximate original contour";23 (ii) to refrain from dumping spoil material on the downslope below the bench or mining cut; and (iii) to refrain from disturbing land above the highwall unless permitted to do so by the regulatory authority. § 515(d), 30 U.S.C. § 1265(d) (1976 ed., Supp. III). Under § 515(e), a "steep-slope" operator may obtain a variance from the approximate-original-contour requirement by showing that it will allow a postreclamation use that is "deemed to constitute an equal or better economic or public use" than would otherwise be possible. 30 U.S.C. § 1265(e)(3)(A) (1976 ed., Supp. III).24
33
The District Court's ruling relied heavily on our decision in National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976). The District Court viewed the central issue as whether the Act governs the activities of private individuals, or whether it instead regulates the governmental decisions of the States. And although the court acknowledged that the Act "ultimately affects the coal mine operator," 483 F.Supp., at 432, it concluded that the Act contravenes the Tenth Amendment because it interferes with the States' "traditional governmental function" of regulating land use. The court held that, as applied to Virginia, the Act's steep-slope provisions impermissibly constrict the State's ability to make "essential decisions."25 The court found the Act accomplishes this result "through forced relinquishment of state control of land use planning; through loss of state control of its economy; and through economic harm, from expenditure of state funds to implement the act and from destruction of the taxing power of certain counties, cities, and towns." Id., at 435.26 The court therefore permanently enjoined enforcement of §§ 515(d) and (e).27
34
The District Court's reliance on National League of Cities requires a careful review of the actual basis and import of our decision in that case. There, we considered a constitutional challenge to the 1974 amendments to the Fair Labor Standards Act which had extended federal minimum wage and maximum hour regulations to most state and local government employees. Because it was conceded that the challenged regulations were "undoubtedly within the scope of the Commerce Clause," 426 U.S., at 841, 96 S.Ct., at 2469, the only question presented was whether that particular exercise of the commerce power "encounter[ed] a . . . constitutional barrier because [the regulations] applied directly to the States and subdivisions of States as employers." Ibid. We began by drawing a sharp distinction between congressional regulation of private persons and businesses "necessarily subject to the dual sovereignty of the government of the Nation and of the State in which they reside," id., at 845, 96 S.Ct., at 2471, and federal regulation "directed, not to private citizens, but to the States as States," ibid. As to the former, we found no Tenth Amendment impediment to congressional action. Instead, we reaffirmed our consistent rule:
35
"Congressional power over areas of private endeavor, even when its exercise may pre-empt express state-law determinations contrary to the result that has commended itself to the collective wisdom of Congress, has been held to be limited only by the requirement that 'the means chosen by [Congress] must be reasonably adapted to the end permitted by the Constitution.' Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 262, 85 S.Ct. 348, 360, 13 L.Ed.2d 258 (1964)." Id., at 840, 96 S.Ct., at 2469.
36
The Court noted, however, that "the States as States stand on a quite different footing from an individual or corporation when challenging the exercise of Congress' power to regulate commerce." Id., at 854, 96 S.Ct., at 2475. It indicated that when Congress attempts to directly regulate the States as States the Tenth Amendment requires recognition that "there are attributes of sovereignty attaching to every state government which may not be impaired by Congress, not because Congress may lack an affirmative grant of legislative authority to reach the matter, but because the Constitution prohibits it from exercising the authority in that manner." Id., at 845, 96 S.Ct., at 2471. The Court held that the power to set the wages and work hours of state employees was "an undoubted attribute of state sovereignty." Ibid. And because it further found that the challenged regulations would "displace the States' freedom to structure integral operations in areas of traditional governmental functions," id., at 852, 96 S.Ct., at 2474, the Court concluded that Congress could not, consistently with the Tenth Amendment, "abrogate the States' otherwise plenary authority to make [these decisions]." Id., at 846, 96 S.Ct., at 2471.28
37
It should be apparent from this discussion that in order to succeed, a claim that congressional commerce power legislation is invalid under the reasoning of National League of Cities must satisfy each of three requirements. First, there must be a showing that the challenged statute regulates the "States as States." Id., at 854, 96 S.Ct., at 2475. Second, the federal regulation must address matters that are indisputably "attribute[s] of state sovereignty." Id., at 845, 96 S.Ct., at 2471. And, third, it must be apparent that the States' compliance with the federal law would directly impair their ability "to structure integral operations in areas of traditional governmental functions." Id., at 852, 96 S.Ct., at 2472.29 When the Surface Mining Act is examined in light of these principles, it is clear that appellees' Tenth Amendment challenge must fail because the first of the three requirements is not satisfied. The District Court's holding to the contrary rests on an unwarranted extension of the decision in National League of Cities.
38
As the District Court itself acknowledged, the steep-slope provisions of the Surface Mining Act govern only the activities of coal mine operators who are private individuals and businesses. Moreover, the States are not compelled to enforce the steep-slope standards, to expend any state funds, or to participate in the federal regulatory program in any manner whatsoever. If a State does not wish to submit a proposed permanent program that complies with the Act and implementing regulations, the full regulatory burden will be borne by the Federal Government. Thus, there can be no suggestion that the Act commandeers the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program. Cf. Maryland v. EPA, 530 F.2d 215, 224-228 (CA4 1975), vacated and remanded sub nom. EPA v. Brown, 431 U.S. 99, 97 S.Ct. 1635, 52 L.Ed.2d 166 (1977); District of Columbia v. Train, 172 U.S.App.D.C. 311, 330-334, 521 F.2d 971, 990-994 (1975), vacated and remanded sub nom. EPA v. Brown, 431 U.S. 99, 97 S.Ct. 1635, 52 L.Ed.2d 166 (1977); Brown v. EPA, 521 F. 2d 827, 837-842 (CA9 1975), vacated and remanded, 431 U.S. 99, 97 S.Ct. 1635, 52 L.Ed.2d 166 (1977). The most that can be said is that the Surface Mining Act establishes a program of cooperative federalism that allows the States, within limits established by federal minimum standards, to enact and administer their own regulatory programs, structured to meet their own particular needs. See In re Permanent Surface Mining Regulation Litigation, 199 U.S.App.D.C. 225, 226, 617 F.2d 807, 808 (1980). In this respect, the Act resembles a number of other federal statutes that have survived Tenth Amendment challenges in the lower federal courts.30
39
Appellees argue, however, that the threat of federal usurpation of their regulatory roles coerces the States into enforcing the Surface Mining Act. Appellees also contend that the Act directly regulates the States as States because it establishes mandatory minimum federal standards. In essence, appellees urge us to join the District Court in looking beyond the activities actually regulated by the Act to its conceivable effects on the States' freedom to make decisions in areas of "integral governmental functions." And appellees emphasize, as did the court below, that the Act interferes with the States' ability to exercise their police powers by regulating land use.
40
Appellees' claims accurately characterize the Act insofar as it prescribes federal minimum standards governing surface coal mining, which a State may either implement itself or else yield to a federally administered regulatory program. To object to this scheme, however, appellees must assume that the Tenth Amendment limits congressional power to pre-empt or displace state regulation of private activities affecting interstate commerce. This assumption is incorrect.
41
A wealth of precedent attests to congressional authority to displace or pre-empt state laws regulating private activity affecting interstate commerce when these laws conflict with federal law. See, e. g., Jones v. Rath Packing Co., 430 U.S. 519, 525-526, 97 S.Ct. 1305, 1309, 1310, 51 L.Ed.2d 604 (1977); Perez v. Campbell, 402 U.S. 637, 649-650, 91 S.Ct. 1704, 1711, 29 L.Ed.2d 233 (1971); Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 141-143, 83 S.Ct. 1210, 1216-1217, 10 L.Ed.2d 248 (1963); Bethlehem Steel Co. v. New York State Labor Relations Bd., 330 U.S. 767, 772-776, 67 S.Ct. 1026, 1029-1031, 91 L.Ed. 1234 (1947); Hines v. Davidowitz, 312 U.S. 52, 67-68, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941). Moreover, it is clear that the Commerce Clause empowers Congress to prohibit all—and not just inconsistent—state regulation of such activities. See, e. g., City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 93 S.Ct. 1854, 36 L.Ed.2d 547 (1973); Campbell v. Hussey, 368 U.S. 297, 82 S.Ct. 327, 7 L.Ed.2d 299 (1961); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947); Transit Comm'n v. United States, 289 U.S. 121, 53 S.Ct. 536, 77 L.Ed. 1075 (1933). Although such congressional enactments obviously curtail or prohibit the States' prerogatives to make legislative choices respecting subjects the States may consider important, the Supremacy Clause permits no other result. See Chicago & North Western Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 317-319, 101 S.Ct. 1124, 1130-1131, 67 L.Ed.2d 258 (1981); Sanitary District v. United States, 266 U.S. 405, 425-426, 45 S.Ct. 176, 178, 69 L.Ed. 352 (1925); The Minnesota Rate Cases, 230 U.S. 352, 399, 33 S.Ct. 729, 739, 57 L.Ed. 1511 (1913); Gibbons v. Ogden, 9 Wheat., at 211. As the Court long ago stated: "It is elementary and well settled that there can be no divided authority over interstate commerce, and that the acts of Congress on that subject are supreme and exclusive." Missouri Pacific R. Co. v. Stroud, 267 U.S. 404, 408, 45 S.Ct. 243, 245, 69 L.Ed. 683 (1925).
42
Thus, Congress could constitutionally have enacted a statute prohibiting any state regulation of surface coal mining. We fail to see why the Surface Mining Act should become constitutionally suspect simply because Congress chose to allow the States a regulatory role. Contrary to the assumption by both the District Court and appellees, nothing in National League of Cities suggests that the Tenth Amendment shields the States from pre-emptive federal regulation of private activities affecting interstate commerce. To the contrary, National League of Cities explicitly reaffirmed the teaching of earlier cases that Congress may, in regulating private activities pursuant to the commerce power, "pre-empt express state-law determinations contrary to the result which has commended itself to the collective wisdom of Congress. . . ." 426 U.S., at 840, 96 S.Ct., at 2469. The only limitation on congressional authority in this regard is the requirement that the means selected be reasonably related to the goal of regulating interstate commerce. Ibid. We have already indicated that the Act satisfies this test.31
43
This conclusion applies regardless of whether the federal legislation displaces laws enacted under the States' "police powers." The Court long ago rejected the suggestion that Congress invades areas reserved to the States by the Tenth Amendment simply because it exercises its authority under the Commerce Clause in a manner that displaces the States' exercise of their police powers. See Hoke v. United States, 227 U.S. 308, 320-323, 33 S.Ct. 281, 283-284, 57 L.Ed. 523 (1913); Athanasaw v. United States, 227 U.S. 326, 33 S.Ct. 285, 57 L.Ed. 528 (1913); Cleveland v. United States, 329 U.S., at 19, 67 S.Ct., at 15; United States v. Darby, 312 U.S., at 113-114, 61 S.Ct., at 456-457; United States v. Wrightwood Dairy Co., 315 U.S., at 119, 62 S.Ct., at 526. Cf. United States v. Carolene Products Co., 304 U.S. 144, 147, 58 S.Ct. 778, 781, 82 L.Ed. 1234 (1938) ("it is no objection to the exertion of the power to regulate interstate commerce that its exercise is attended by the same incidents which attend the exercise of the police power of the states");32 accord, FPC v. Natural Gas Pipeline Co., 315 U.S. 575, 582, 62 S.Ct. 736, 741, 86 L.Ed. 1037 (1942); Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146, 156, 40 S.Ct. 106, 108, 64 L.Ed. 194 (1919); Seven Cases v. United States, 239 U.S. 510, 514, 36 S.Ct. 190, 191, 60 L.Ed. 411 (1916). This Court has upheld as constitutional any number of federal statutes enacted under the commerce power that pre-empt particular exercises of state police power. See, e. g., United States v. Walsh, 331 U.S. 432, 67 S.Ct. 1283, 91 L.Ed. 1585 (1947) (upholding Federal Food, Drug, and Cosmetic Act, 21 U.S.C. §§ 301-392); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893 (1937) (upholding National Labor Relations Act, 29 U.S.C. §§ 151-168); United States v. Darby, supra (upholding Fair Labor Standards Act, 29 U.S.C. §§ 201-219). It would therefore be a radical departure from long-established precedent for this Court to hold that the Tenth Amendment prohibits Congress from displacing state police power laws regulating private activity. Nothing in National League of Cities compels or even hints at such a departure.33
44
In sum, appellees' Tenth Amendment challenge to the Surface Mining Act must fail because here, in contrast to the situation in National League of Cities, the statute at issue regulates only "individual businesses necessarily subject to the dual sovereignty of the government of the Nation and the State in which they reside." National League of Cities v. Usery, 426 U.S., at 845, 96 S.Ct., at 2471.34 Accordingly, we turn to the District Court's ruling that the Act contravenes other constitutional limits on congressional action.
IV
45
The District Court held that two of the Act's provisions violate the Just Compensation Clause of the Fifth Amendment. First, the court found that the steep-slope provisions discussed above effect an uncompensated taking of private property by requiring operators to perform the "economically and physically impossible" task of restoring steep-slope surface mines to their approximate original contour. 483 F.Supp., at 437.35 The court further held that, even if steep-slope surface mines could be restored to their approximate original contour, the value of the mined land after such restoration would have "been diminished to practically nothing." Ibid. Second, the court found that § 522 of the Act effects an unconstitutional taking because it expressly prohibits mining in certain locations and "clearly prevent[s] a person from mining his own land or having it mined." Id., at 441.36 Relying on this Court's decision in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922), the District Court held that both of these provisions are unconstitutional because they "depriv[e] [coal mine operators] of any use of [their] land, not only the most profitable . . . ." 483 F.Supp., at 441.
46
We conclude that the District Court's ruling on the "taking" issue suffers from a fatal deficiency: neither appellees nor the court identified any property in which appellees have an interest that has allegedly been taken by operation of the Act. By proceeding in this fashion, the court below ignored this Court's oft-repeated admonition that the constitutionality of statutes ought not be decided except in an actual factual setting that makes such a decision necessary. See Socialist Labor Party v. Gilligan, 406 U.S. 583, 588, 92 S.Ct. 1716, 1719, 32 L.Ed.2d 317 (1972); Rescue Army v. Municipal Court, 331 U.S. 549, 568-575, 584, 67 S.Ct. 1409, 1419-1423, 91 L.Ed. 1666 (1947); Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 461, 65 S.Ct. 1384, 1389, 89 L.Ed. 1725 (1945). Adherence to this rule is particularly important in cases raising allegations of an unconstitutional taking of private property. Just last Term, we reaffirmed that
47
"this Court has generally 'been unable to develop any "set formula" for determining when "justice and fairness" require that economic injuries caused by public action be compensated by the government, rather than remain disproportionately concentrated on a few persons.' Rather, it has examined the 'taking' question by engaging in essentially ad hoc, factual inquiries that have identified several factors—such as the economic impact of the regulation, its interference with reasonable investment backed expectations, and the character of the government action—that have particular significance." Kaiser Aetna v. United States, 444 U.S. 164, 175, 100 S.Ct. 383, 390, 62 L.Ed.2d 332 (1979) (citations omitted).
48
These "ad hoc, factual inquiries" must be conducted with respect to specific property, and the particular estimates of economic impact and ultimate valuation relevant in the unique circumstances.
49
Because appellees' taking claim arose in the context of a facial challenge, it presented no concrete controversy concerning either application of the Act to particular surface mining operations or its effect on specific parcels of land. Thus, the only issue properly before the District Court and, in turn, this Court, is whether the "mere enactment" of the Surface Mining Act constitutes a taking. See Agins v. Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 2141, 65 L.Ed.2d 106 (1980). The test to be applied in considering this facial challenge is fairly straightforward. A statute regulating the uses that can be made of property effects a taking if it "denies an owner economically viable use of his land . . . ." Agins v. Tiburon, supra, at 260, 100 S.Ct., at 2141. See Penn Central Transp. Co. v. New York City, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978). The Surface Mining Act easily survives scrutiny under this test.
50
First, the Act does not, on its face, prevent beneficial use of coal-bearing lands. Except for the proscription of mining near certain locations by § 522(e), the Act does not categorically prohibit surface coal mining; it merely regulates the conditions under which such operations may be conducted.37 The Act does not purport to regulate alternative uses to which coal-bearing lands may be put.38 Thus, in the posture in which these cases comes before us, there is no reason to suppose that "mere enactment" of the Surface Mining Act has deprived appellees of economically viable use of their property.
51
Moreover, appellees cannot at this juncture legitimately raise complaints in this Court about the manner in which the challenged provisions of the Act have been or will be applied in specific circumstances, or about their effect on particular coal mining operations. There is no indication in the record that appellees have availed themselves of the opportunities provided by the Act to obtain administrative relief by requesting either a variance from the approximate-original-contour requirement of § 515(d) or a waiver from the surface mining restrictions in § 522(e). If appellees were to seek administrative relief under these procedures, a mutually acceptable solution might well be reached with regard to individual properties, thereby obviating any need to address the constitutional questions.39 The potential for such administrative solutions confirms the conclusion that the taking issue decided by the District Court simply is not ripe for judicial resolution.40
V
A.
52
The District Court next ruled that the Act contravenes the Fifth Amendment because a number of its enforcement provisions offend the Amendment's Due Process Clause. One such provision is § 521(a)(2), 30 U.S.C. § 1271(a)(2) (1976 ed., Supp. III), which instructs the Secretary immediately to order total or partial cessation of a surface mining operation whenever he determines, on the basis of a federal inspection, that the operation is in violation of the Act or a permit condition required by the Act and that the operation
53
"creates an immediate danger to the health or safety of the public, or is causing, or can reasonably be expected to cause significant, imminent environmental harm to land, air, or water resources . . . ."41
54
A mine operator aggrieved by an immediate cessation order issued under § 521(a)(2) or by a cessation order issued after a notice of violation and expiration of an abatement period under § 521(a)(3) may immediately request temporary relief from the Secretary, and the Secretary must respond to the request within five days of its receipt. § 525(c), 30 U.S.C. § 1275 (1976 ed., Supp. III). Section 526(c) of the Act, 30 U.S.C. § 1276(c) (1976 ed., Supp. III), authorizes judicial review of a decision by the Secretary denying temporary relief. In addition, cessation orders are subject to informal administrative review under § 521(a)(5), and formal administrative review, including an adjudicatory hearing, under § 525(b), 30 U.S.C. § 1275(b) (1976 ed., Supp. III).42 The Secretary's decision in the formal review proceeding is subject to judicial review pursuant to § 526(a)(2), 30 U.S.C. § 1276(a)(2) (1976 ed., Supp. III).
55
The District Court held that § 521(a)(2)'s authorization of immediate cessation orders violates the Fifth Amendment because the statute does not provide sufficiently objective criteria for summary administrative action. In this regard, the court relied on its finding that OSM inspectors had issued against a particular company three immediate cessation orders which were later overturned on appeal, and that the company involved had suffered significant losses. The court enjoined the Secretary from issuing any immediate cessation orders "until such time as Congress makes provisions to correct the use of subjective criteria by OSM inspectors." 483 F.Supp., at 448.43 In addition, the court ruled that even if the Act is amended to correct this problem, the 5-day response period prescribed by the Act does not meet the requirements of due process. Instead, the court held that the Secretary must respond within 24 hours to a mine operator's request for temporary relief from an immediate cessation order. We find both aspects of the District Court's reasoning unpersuasive.
56
Our cases have indicated that due process ordinarily requires an opportunity for "some kind of hearing" prior to the deprivation of a significant property interest. See Parratt v. Taylor, 451 U.S. 527, 540, 101 S.Ct. 1908, 1915, 68 L.Ed.2d 420 (1981); Boddie v. Connecticut, 401 U.S. 371, 379, 91 S.Ct. 780, 786, 28 L.Ed.2d 113 (1971). The Court has often acknowledged, however, that summary administrative action may be justified in emergency situations. See, e. g., Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 677-680, 94 S.Ct. 2080, 2088-2090, 40 L.Ed.2d 452 (1974); Boddie v. Connecticut, supra, 401 U.S., at 378-379, 91 S.Ct., at 786; Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 599-600, 70 S.Ct. 870, 872-873, 94 L.Ed. 1088 (1950); Fahey v. Mallonee, 332 U.S. 245, 253-254, 67 S.Ct. 1552, 1555-1556, 91 L.Ed. 2030 (1947); Yakus v. United States, 321 U.S. 414, 442-443, 64 S.Ct. 660, 675-676, 88 L.Ed. 834 (1944); Bowles v. Willingham, 321 U.S. 503, 519-520, 64 S.Ct. 641, 649-650, 88 L.Ed. 892 (1944); Phillips v. Commissioner, 283 U.S. 589, 595-599, 51 S.Ct. 608, 611-612, 75 L.Ed. 1289 (1931); North American Cold Storage Co. v. Chicago, 211 U.S. 306, 315-321, 29 S.Ct. 101, 104-106, 53 L.Ed. 195 (1908). The question then, is whether the issuance of immediate cessation orders under § 521(a) falls under this emergency situation exception to the normal rule that due process requires a hearing prior to deprivation of a property right. We believe that it does.
57
The immediate cessation order provisions reflect Congress' concern about the devastating damage that may result from mining disasters.44 They represent an attempt to reach an accommodation between the legitimate desire of mining companies to be heard before submitting to administrative regulation and the governmental interest in protecting the public health and safety and the environment from imminent danger. Protection of the health and safety of the public is a paramount governmental interest which justifies summary administrative action. Indeed, deprivation of property to protect the public health and safety is "[o]ne of the oldest examples" of permissible summary action. Ewing v. Mytinger & Casselberry, Inc., supra, 339 U.S., at 599, 70 S.Ct., at 872. See Mackey v. Montrym, 443 U.S. 1, 17-18, 99 S.Ct. 2612, 2620-2621, 61 L.Ed.2d 321 (1979); id., at 21, n. 1, 25, 99 S.Ct., at 2622, n. 1, 2624 (Stewart, J., dissenting); North American Cold Storage Co. v. Chicago, supra, 211 U.S., at 315-316, 29 S.Ct., at 104. Moreover, the administrative action provided through immediate cessation orders responds to situations in which swift action is necessary to protect the public health and safety. This is precisely the type of emergency situation in which this Court has found summary administrative action justified. See Ewing v. Mytinger & Casselberry, Inc., supra; North American Cold Storage Co. v. Chicago, supra.
58
Rather than taking issue with any of these principles, the District Court held that the Act does not establish sufficiently objective criteria governing the issuance of summary cessation orders. We disagree. In our judgment, the criteria established by the Act and the Secretary's implementing regulations are specific enough to control governmental action and reduce the risk of erroneous deprivation. Section 701(8) of the Act, 30 U.S.C. § 1291(8) (1976 ed., Supp. III), defines the threat of "imminent danger to the health and safety of the public" as the existence of a condition or practice which could
59
"[r]easonably be expected to cause substantial physical harm to persons outside the permit area before such condition, practice, or violation can be abated. A reasonable expectation of death or serious injury before abatement exists if a rational person, subjected to the same conditions or practices giving rise to the peril, would not expose himself or herself to the danger during the time necessary for abatement."45
60
If anything, these standards are more specific than the criteria in other statutes authorizing summary administrative action that have been upheld against due process challenges. See, e. g., Ewing v. Mytinger & Casselberry, Inc., supra, 339 U.S., at 595-596, 70 S.Ct., at 871 (" 'dangerous to health . . . or would be in a material respect misleading to the injury or damage of the purchaser or consumer' "); Fahey v. Mallonee, supra, 332 U.S., at 250-251, n. 1, 67 S.Ct., at 1554, n. 1 ("is unsafe or unfit to manage a Federal savings and loan association" or "[i]s in imminent danger of becoming impaired"); Air East, Inc. v. National Transportation Safety Board, 512 F.2d 1227, 1232 (CA3) (" 'emergency requiring immediate action . . . in respect to air safety in commerce' "), cert. denied, 423 U.S. 863, 96 S.Ct. 122, 46 L.Ed.2d 92 (1975).
61
The fact that OSM inspectors have issued immediate cessation orders that were later overturned on administrative appeal does not undermine the adequacy of the Act's criteria but instead demonstrates the efficacy of the review procedures. The relevant inquiry is not whether a cessation order should have been issued in a particular case, but whether the statutory procedure itself is incapable of affording due process. Yakus v. United States, 321 U.S., at 434-435, 64 S.Ct., at 671-672. The possibility of administrative error inheres in any regulatory program; statutory programs authorizing emergency administrative action prior to a hearing are no exception.46 As we explained in Ewing v. Mytinger & Casselberry, Inc., 339 U.S., at 599, 70 S.Ct., at 872:
62
"Discretion of any official action may be abused. Yet it is not a requirement of due process that there be judicial inquiry before discretion can be exercised. It is sufficient, where only property rights are concerned, that there is at some stage an opportunity for a hearing and a judicial determination."
63
Here, mine operators are afforded prompt and adequate post-deprivation administrative hearings and an opportunity for judicial review. We are satisfied that the Act's immediate cessation order provisions comport with the requirements of due process.
64
We also conclude that the District Court erred in reducing the statutorily prescribed time period for the Secretary's response to requests for temporary relief. In the first place, the 5-day period is a statutory maximum and there is no indication in the record that the Secretary has not responded or will not respond in less than five days. Second, appellees have not demonstrated that they have been adversely affected by the 5-day response period in a particular case or that it is generally unreasonable. In addition, no evidence was introduced to show that a shorter reply period is administratively feasible. In these circumstances, there simply is no basis for the District Court's decision to substitute a judicial policy preference for the scheme adopted by Congress. Cf. Vermont Yankee Nuclear Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978). Accordingly, we turn to the District Court's holding that other sections of the Act violate the Fifth Amendment's Due Process Clause.
B
65
The District Court ruled that the Act's civil penalty provisions do not comport with the requirements of due process. Under these provisions, the Secretary is to notify the recipient of a notice of violation or a cessation order of the proposed amount of any civil penalty that is to be assessed against it. § 518(c), 30 U.S.C. § 1268(c) (1976 ed., Supp. III). Section 518(c) further states that, if the operator "wishes to contest either the amount of the penalty or the fact of the violation," it must "forward the proposed amount to the Secretary for placement in an escrow account."47 Once the escrow requirement is met, the operator receives a full adjudicatory hearing before an administrative law judge, with a right of appeal to an administrative board and judicial review of the final decision. See 30 U.S.C. § 1276(a)(2) (1976 ed., Supp. III). If, after administrative or judicial review, it is determined that no violation occurred or that the amount of the proposed penalty should be reduced, the appropriate amount must promptly be refunded to the operator with interest. 30 U.S.C. § 1268(c) (1976 ed., Supp. III).
66
In challenging the Act's civil penalty provisions appellees did not allege that they, or any one of them, have had civil penalties assessed against them. Moreover, the District Court did not find, as it did in ruling on the immediate cessation order provisions, that any of appellee coal mine operators have been affected or harmed by any of the statutory procedures for the assessment and collection of fines. Thus, the record in these cases belies any suggestion that there is a concrete case or controversy concerning the operation of these provisions. In these circumstances, we must conclude that appellees' challenge is premature, and that it was improper for the court below to render a decision on this claim.
VI
67
Our examination of appellees' constitutional challenges to the Surface Mining Act persuades us that the Act is not vulnerable to their pre-enforcement challenge. Accordingly, we affirm the judgment of the District Court upholding the Act against appellees' Commerce Clause attack (No. 79-1596), and we reverse the judgment below insofar as it held various provisions of the Act unconstitutional (No. 79-1538). The cases are remanded to the District Court with instructions to dissolve the injunction issued against the Secretary, and for further proceedings consistent with this opinion.
68
So ordered.
69
THE CHIEF JUSTICE, concurring.
70
I agree largely with what Justice REHNQUIST has said about the "fictions" concerning delegation, and the gradual case-by-case expansion of the reach of the Commerce Clause.
71
I agree fully with his view that we often seem to forget the doctrine that laws enacted by Congress under the Commerce Clause must be based on a substantial effect on interstate commerce. However, I join the Court's opinions in these cases and in No. 80-231 because in them the Court acknowledges and reaffirms that doctrine. See, e. g., ante, at 280.
72
Justice POWELL, concurring.
73
The Surface Mining Act mandates an extraordinarily intrusive program of federal regulation and control of land use and land reclamation, activities normally left to state and local governments. But the decisions of this Court over many years make clear that, under the Commerce Clause, Congress has the power to enact this legislation.
74
The Act could affect seriously the owners and lessees of the land and coal in the seven westernmost counties of Virginia. The Federal Government is required by the Fifth Amendment to pay just compensation for any "taking" of private property for public use.1 See San Diego Gas & Electric Co. v. City of San Diego, 450 U.S. 621, 654, 101 S.Ct. 1287, 1305, 67 L.Ed.2d 551 (1981) (BRENNAN, J., dissenting).2 But whether there has been such a "taking" and, if so, the amount of just compensation, are questions to be decided in specific cases. Agins v. Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 2141, 65 L.Ed.2d 106 (1980); Kaiser Aetna v. United States, 444 U.S. 164, 175, 100 S.Ct. 383, 390, 62 L.Ed.2d 332 (1979). I agree with the Court, therefore, that it is premature to consider in these cases questions under the Compensation Clause. Ante, at 2369-2371. Appellees have identified no specific property that is alleged to have been taken. The Court's decision thus is confined to a holding that the Act in this respect is not facially unconstitutional. Ante, at 297, n. 40. The "taking" issue remains available to, and may be litigated by, any owner or lessee whose property interest is adversely affected by the enforcement of the Act.3
75
I add a word about the area of Virginia that will be affected by this Act, as its location, topography, and geology are highly relevant to an understanding of the "taking" question. Bituminous coal, Virginia's most valuable natural resource,4 is found in a region marked by steep mountain slopes, sharp ridges, massive outcrops of rock, and narrow valleys—conditions that severely limit alternative uses of the land. Because of thin soil and rugged terrain, the land in its natural state is not suited for agricultural use or the growing of merchantable timber. Its value lies, in most instances, solely in its coal. Mining the coal is a major industrial activity in an otherwise impoverished area of Virginia.5
76
A number of the Act's provisions appear to have been written with little comprehension of its potential effect on this rugged area. For example, the requirement in § 515(d) that steep-slope areas be restored approximately to their original contours seems particularly unrealistic. As the District Court found, 95% of the strippable coal lands in Virginia are located on slopes in excess of 20 degrees. 483 F.Supp. 425, 434 (1980). The cost of restoration in some situations could exceed substantially the value of the coal. In any event restoring steep mountain slopes often would diminish rather than increase the land's worth.
77
In sum, if the Act is implemented broadly in accordance with its terms, the consequences to individual lessees and owners, and to the area as a whole, could be far-reaching. But adjudication of claims arising from such implementation is for the future. I agree with the Court that we cannot say that the Act is facially invalid, and I therefore join its opinion.
78
Justice REHNQUIST, concurring in the judgment.
79
It is illuminating for purposes of reflection, if not for argument, to note that one of the greatest "fictions" of our federal system is that the Congress exercises only those powers delegated to it, while the remainder are reserved to the States or to the people. The manner in which this Court has construed the Commerce Clause amply illustrates the extent of this fiction. Although it is clear that the people, through the States, delegated authority to Congress to "regulate Commerce . . . among the several States," U.S.Const., Art. I, § 8, cl. 3, one could easily get the sense from this Court's opinions that the federal system exists only at the sufferance of Congress.
80
As interpreted by the Court, Congress' power under the Commerce Clause is broad indeed. The power has evolved through the years to include not simply the regulation of interstate commerce itself, as in Gibbons v. Ogden, 9 Wheat. 1, 6 L.Ed. 23 (1824), but also the power "to exclude from the commerce articles whose use in the states for which they are destined it may conceive to be injurious to the public health, morals or welfare, even though the state has not sought to regulate their use." United States v. Darby, 312 U.S. 100, 114, 61 S.Ct. 451, 457, 85 L.Ed. 609 (1941). In the Shreveport Rate Case, 234 U.S. 342, 351, 34 S.Ct. 833, 836, 58 L.Ed. 1341 (1914), the Court upheld the action of Congress in regulating the rates of intrastate railroads, reasoning that the commerce power included the power to "control . . . all matters having such a close and substantial relation to interstate traffic. . . . ." In NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893 (1937), the Court rejected the notion that certain kinds of activity were not in "commerce," such as manufacturing, cf. United States v. E. C. Knight Co., 156 U.S. 1, 15 S.Ct. 249, 39 L.Ed. 325 (1895), and concluded that Congress may regulate labor relations in any manufacturing plant because a work stoppage at any such plant "would have a most serious effect upon interstate commerce." 301 U.S., at 41, 57 S.Ct., at 626. And in Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942), the Court expanded the scope of the Commerce Clause to include the regulation of acts which taken alone might not have a substantial economic effect on interstate commerce, such as a wheat farmer's own production, but which might reasonably be deemed nationally significant in their cumulative effect, such as altering the supply-and-demand relationships in the interstate commodity market. See also Perez v. United States, 402 U.S. 146, 154, 91 S.Ct. 1357, 1361, 28 L.Ed.2d 686 (1971) ("Where the class of activities is regulated and that class is within the reach of federal power, the courts have no power 'to excise, as trivial, individual instances' of the class"). As summarized by one commentator: "In recent years, Congress has relied upon the 'cumulative effect' principle as its constitutional justification for civil rights legislation, certain criminal statutes, regulatory measures affecting the sale of foods and additives, and a registration law for drug producers. In each case, congressional fact-findings stressed that the regulation of local incidents of an activity was necessary to abate a cumulative evil affecting national commerce." L. Tribe, American Constitutional Law 237 (1978).
81
Despite the holdings of these cases, and the broad dicta often contained therein, there are constitutional limits on the power of Congress to regulate pursuant to the Commerce Clause. As Chief Justice Hughes explained:
82
"Undoubtedly the scope of this power must be considered in light of our dual system of government and may not be extended so as to embrace effects on interstate commerce so indirect and remote that to embrace them, in view of our complex society, would effectually obliterate the distinction between what is national and what is local and create a completely centralized government." NLRB v. Jones & Laughlin Steel Corp., supra, 301 U.S., at 37, 57 S.Ct., at 624.
83
And Justice Cardozo, in his cogent writing on the subject, often expressed his concern about too broad a reading of the commerce power. In his concurring opinion in Schechter Poultry Corp. v. United States, 295 U.S. 495, 554-555, 55 S.Ct. 837, 853, 79 L.Ed. 1570 (1935), he observed:
84
"There is a view of causation that would obliterate the distinction between what is national and what is local in the activities of commerce. Motion at the outer rim is communicated perceptibly, though minutely, to recording instruments at the center. A society such as ours 'is an elastic medium which transmits all tremors throughout its territory; the only question is of size.' . . . The law is not indifferent to considerations of degree. Activities local in their immediacy do not become interstate and national because of distant repercussions. . . . To find immediacy or directness here is to find it almost everywhere. If centripetal forces are to be isolated to the exclusion of the forces that oppose and counteract them, there will be an end to our federal system."
85
Justice Cardozo elaborated on this point in his separate opinion in Carter v. Carter Coal Co., 298 U.S. 238, 327, 56 S.Ct. 855, 880, 80 L.Ed. 1160 (1936).
86
"Mining and agriculture and manufacture are not interstate commerce considered by themselves, yet their relationship to that commerce may be such that for the protection of the one there is need to regulate the other. Schechter Poultry Corp. v. United States. . . . Sometimes it is said that the relation must be 'direct' to bring that power into play. In many circumstances such a description will be sufficiently precise to meet the needs of the occasion. But a great principle of constitutional law is not susceptible of comprehensive statement in an adjective. The underlying thought is merely this, that, 'the law is not indifferent to considerations of degree.' Schechter Poultry Corp. v. United States, supra, concurring opinion, 295 U.S. p. 554, 55 S.Ct. p. 853. It cannot be indifferent to them without an expansion of the commerce clause that would absorb or imperil the reserved powers of the states. At times, as in the case cited, the waves of causation will have radiated so far that their undulatory motion, if discernible at all, will be too faint or obscure, too broken by cross-currents, to be heeded by the law."
87
Thus it would be a mistake to conclude that Congress' power to regulate pursuant to the Commerce Clause is unlimited. Some activities may be so private or local in nature that they simply may not be in commerce. Nor is it sufficient that the person or activity reached have some nexus with interstate commerce. Our cases have consistently held that the regulated activity must have a substantial effect on interstate commerce. E. g., NLRB v. Jones & Laughlin Steel Corp., 301 U.S., at 37, 57 S.Ct., at 624 (local activities may be regulated if they have a "close and substantial relation to interstate commerce"). Moreover, simply because Congress may conclude that a particular activity substantially affects interstate commerce does not necessarily make it so. Congress' findings must be supported by a "rational basis" and are reviewable by the courts. Cf. Perez v. United States, 402 U.S., at 157, 91 S.Ct., at 1363 (STEWART, J., dissenting).* In short, unlike the reserved police powers of the States, which are plenary unless challenged as violating some specific provision of the Constitution, the connection with interstate commerce is itself a jurisdictional prerequisite for any substantive legislation by Congress under the Commerce Clause.
88
In many ways, the Court's opinions in these cases are consistent with that approach. In both the Virginia and Indiana cases, the Court exhaustively analyzes Congress' articulated justifications for the exercise of its power under the Commerce Clause and concludes that Congress' detailed factual findings as to the effect of surface mining on interstate commerce are sufficient to justify the exercise of that power. Though there can be no doubt that Congress in regulating surface mining has stretched its authority to the "nth degree," our prior precedents compel me to agree with the Court's conclusion. I therefore concur in the judgments of the Court.
89
There is, however, a troublesome difference between what the Court does and what it says. In both cases, the Court asserts that regulation will be upheld if Congress had a rational basis for finding that the regulated activity affects interstate commerce. Virginia Surface Mining, 452 U.S. 264, 276, 101 S.Ct. 2352, 2360, 69 L.Ed.2d 1; Indiana, 452 U.S. 314, 323-325, 101 S.Ct. 2376, 2382-2383, 69 L.Ed.2d 40. The Court takes this statement of the proper "test" from Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258, 85 S.Ct. 348, 358, 13 L.Ed.2d 258 (1964). In my view, the Court misstates the test. As noted above, it has long been established that the commerce power does not reach activity which merely "affects" interstate commerce. There must instead be a showing that regulated activity has a substantial effect on that commerce. See NLRB v. Jones & Laughlin Steel Corp., supra; Shreveport Rate Cases, 234 U.S. 342, 34 S.Ct. 833, 58 L.Ed. 1341 (1914); Wickard v. Filburn, 317 U.S., at 125, 63 S.Ct., at 89 (local activity may be reached by Congress if "it exerts a substantial economic effect on interstate commerce"); North American Co. v. SEC, 327 U.S. 686, 705, 66 S.Ct. 785, 796, 90 L.Ed. 945 (1946) (Congress may attack an evil which bears a "substantial relationship to interstate commerce"). As recently as Maryland v. Wirtz, 392 U.S. 183, 197, n. 27, 88 S.Ct. 2017, 2024, n. 27, 20 L.Ed.2d 1020 (1968), Justice Harlan stressed that "[n]either here nor in Wickard has the Court declared that Congress may use a relatively trivial impact on commerce as an excuse for broad general regulation of state or private activities." Even in Heart of Atlanta Motel, Inc., in the paragraph just prior to the passage relied on by the Court here, the Court emphasized that Congress had the power to regulate local activities "which might have a substantial and harmful effect upon that commerce." 379 U.S., at 258, 85 S.Ct., at 358. Though I believe the Court errs in its statement of the "test," it may be that I read too much into the Court's choice of language. In the Virginia case, for example, it does mention at one point that Congress did have a "rational basis for concluding that surface coal mining has substantial effects on interstate commerce." 452 U.S., at 280, 101 S.Ct., at 2362.
90
In sum, my difficulty with some of the recent Commerce Clause jurisprudence is that the Court often seems to forget that legislation enacted by Congress is subject to two different kinds of challenge, while that enacted by the States is subject to only one kind of challenge. Neither Congress nor the States may act in a manner prohibited by any provision of the Constitution. Congress must show that the activity it seeks to regulate has a substantial effect on interstate commerce. It is my uncertainty as to whether the Court intends to broaden, by some of its language, this test that leads me to concur only in the judgments.
1
The Commerce Clause empowers Congress "[t]o regulate Commerce with foreign Nations and among the several States, and with the Indian Tribes." U.S.Const., Art. I, § 8, cl. 3.
2
Other provisions of the Act are, by their own terms, made effective during the interim period. One example is § 522(e), 30 U.S.C. § 1272(e) (1976 ed., Supp.III), which prohibits, with some exceptions, surface coal mining on certain lands or within specified distances of particular structures or facilities.
3
Under §§ 502(b), (c) of the Act, 30 U.S.C. §§ 1252(b), (c) (1976 ed., Supp.III), the interim standards are applicable only to surface mining operations in States that were themselves regulating surface mining when the Act became law. All States in which surface mining was conducted on private lands had regulatory programs of their own when the Act was passed in 1977. Accordingly, the interim program became applicable in all relevant areas throughout the country, including Virginia.
4
New surface mining operations, excluding those on "Federal lands" or "Indian lands," commencing on or after February 3, 1978, must comply with the performance standards established by the interim regulatory program at the start of operations. And, with certain limited exceptions, surface mining operations begun prior to February 3, 1978, were required to be in compliance with the interim regulations as of May 3, 1978. §§ 502(b), (c), and 701(11), 30 U.S.C. §§ 1252(b), (c) and 1291(11) (1976 ed., Supp. III).
Some of the interim regulations were challenged in the United States District Court for the District of Columbia pursuant to § 526(a)(1) of the Act, 30 U.S.C. § 1276(a)(1) (1976 ed., Supp. III). In re Surface Mining Regulation Litigation, 452 F.Supp. 327 (1978); In re Surface Mining Regulation Litigation, 456 F.Supp. 1301 (1978), aff'd in part and rev'd in part, 201 U.S.App.D.C. 360, 627 F.2d 1346 (1980). The plaintiffs in the District of Columbia litigation also challenged the validity of a number of the statutory provisions that are at issue in the instant cases. The District Court sustained the validity of those provisions, 456 F.Supp., at 1319-1321, and the attack was not renewed on appeal.
5
Congress encouraged such assistance by providing for financial reimbursements to States that activity assist the federal enforcement effort during the interim phase. See 30 U.S.C. § 1252(e)(4) (1976 ed., Supp. III).
6
A separate regulatory program governing "Federal lands" is established by § 523 of the Act, 30 U.S.C. § 1273 (1976 ed., Supp. III). The term "Federal lands" is defined in § 701(4), 30 U.S.C. § 1291(4) (1976 ed., Supp. III). Section 710 of the Act, 30 U.S.C. § 1300 (1976 ed., Supp. III), regulates surface mining on "Indian lands."
7
The proposed state programs were to have been submitted by February 3, 1979—18 months after the Act was passed. Exercising his authority under § 504(a), the Secretary extended the deadline until August 3, 1979. See 44 Fed.Reg. 15324 (1979). Because the Secretary's March 1979 publication of the permanent regulations occurred seven months after the date set by the Act, see 30 U.S.C. § 1251(b) (1976 ed., Supp. III), the United States District Court for the District of Columbia further extended the deadline for submission of state programs to and including March 3, 1980. In re Permanent Surface Mining Regulation Litigation, Civ. No. 79-1144 (DC July 25 and Aug. 21, 1979). See also 44 Fed.Reg. 60969 (1979) (announcing conforming changes in the Secretary's regulations governing submission of state programs).
With the exception of Alaska, Georgia, and Washington, all States in which surface mining is either conducted or is expected to be conducted submitted proposed state programs to the Secretary by March 3, 1980. The Secretary has made his initial decisions on these programs. Three programs were approved, 8 were approved on condition that the States agree to some modifications, 10 were approved in part and disapproved in part, and 3 were disapproved because the state legislatures had failed to enact the necessary implementing statutes. Virginia's program was among those approved in part and disapproved in part. See 45 Fed.Reg. 69977 (1980). Under § 503 of the Act, a State may revise a plan that has been disapproved in whole or in part and resubmit it to the Secretary within 60 days of his initial decision.
8
The Virginia Citizens for Better Reclamation, Inc., and the town of St. Charles, Va., intervened as defendants in support of the Secretary.
9
Plaintiffs also challenged Title IV of the Act, 30 U.S.C. §§ 1231-1243 (1976 ed., Supp. III), which establishes a reclamation program for abandoned mines. The District Court, held, however, that it would exercise its discretion by "not grant[ing] declaratory judgments as to the provisions of that title." 483 F.Supp. 425, 429 (1980). There is no appeal from this portion of the District Court's judgment.
10
The Due Process Clause of the Fifth Amendment states that no person shall "be deprived of life, liberty, or property, without due process of law."
11
Under the Tenth Amendment, "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
12
The Compensation Clause prohibits the taking of private property "for public use, without just compensation."
13
The District Court denied the Secretary's motion for a stay pending direct appeal to this Court. At the same time, the court issued an order and opinion clarifying and modifying its earlier order. App. to Juris. Statement in No. 79-1538, pp. 1a-16a (J.S.App.). Upon the Secretary's application, we issued an order staying the District Court's judgment "pending the timely filing and disposition of the appeal[s] in this Court." 100 S.Ct. 1306, 63 L.Ed.2d 755 (1980).
14
Plaintiffs do not appeal from that portion of the District Court's judgment rejecting their equal protection and substantive due process challenges to the Act.
15
The jurisdiction of this Court was invoked under 28 U.S.C. § 1252, which provides for direct appeal to this Court from any decision by a court of the United States invalidating an Act of Congress in any suit to which the United States, its agencies, officers, or employees are parties.
16
We also agree to hear the appeal in No. 80-231, Hodel v. Indiana, which involves similar constitutional challenges to different provisions of the Surface Mining Act, and which we also decide today. 452 U.S. 314, 101 S.Ct. 2376, 69 L.Ed.2d 40. At least three other District Courts have considered constitutional challenges to provisions of the Surface Mining Act. In Concerned Citizens of Appalachia, Inc. v. Andrus, 494 F.Supp. 679 (ED Tenn.1980), appeal pending, No. 80-1488 (CA6), the District Court upheld the Act in the face of challenges similar to those raised by plaintiffs in the instant case. In Star Coal Co. v. Andrus, No. 79-171-2 (SD Iowa, Feb. 13, 1980), appeal dism'd, No. 80-1284 (CA8), the District Court rejected challenges based on the Fifth and Tenth Amendments, but enjoined some of the Act's enforcement provisions. And in Andrus v. P-Burg Coal Co., 495 F.Supp. 82 (SD Ind.1980), aff'd, 644 F.2d 1231 (CA7 1981), the District Court rejected a Commerce Clause challenge to the Act.
17
Appellees cite cases such as Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974); Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27 (1954); Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926).
18
The Property Clause provides: "The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States." U.S.Const., Art. IV, § 3, cl. 2.
19
Hearings on proposed legislation regulating surface coal mining began in 1968. Surface Mining Reclamation: Hearings before the Senate Committee on Interior and Insular Affairs, 90th Cong., 2d Sess. (1968). Three years later, additional hearings were held by Committees of both the House and the Senate. Regulation of Strip Mining: Hearings before the Subcommittee on Mines and Mining of the House Committee on Interior and Insular Affairs, 92d Cong., 1st Sess. (1971); Surface Mining: Hearings before the Subcommittee on Minerals, Materials and Fuels of the Senate Committee on Interior and Insular Affairs, 92d Cong., 1st Sess. (1972). The Committees reported bills for consideration by their respective Houses. The House passed H.R.6482, but Congress adjourned before the Senate could act on the measure.
Similar bills were reintroduced in the 93d Congress and further hearings were held. Regulation of Surface Mining Operations: Hearings before the Senate Committee on Interior and Insular Affairs, 93d Cong., 1st Sess. (1973); Regulation of Surface Mining: Hearings before the Subcommittee on the Environment and the Subcommittee on Mines and Mining of the House Committee on Interior and Insular Affairs, 93d Cong., 1st Sess. (1973). At the request of the Chairman of the Senate Committee, the Council on Environmental Quality prepared a report entitled Coal Surface Mining and Reclamation: An Environmental and Economic Assessment of Alternatives (Comm. Print 1973), and the Senate Committee held additional hearings to consider the report. Coal Surface Mining and Reclamation: Hearings before the Subcommittee on Minerals, Materials and Fuels of the Senate Committee on Interior and Insular Affairs, 93d Cong., 1st Sess. (1973). The House and Senate Committees reported bills for consideration by both Houses, and Congress passed a bill that was vetoed by President Ford in 1974.
The surface mining legislation was reintroduced in the 94th Congress in 1975, and the Senate Committee held a hearing on administration objections to the bill. Surface Mining Briefing: Briefing before the Senate Committee on Interior and Insular Affairs, 94th Cong., 1st Sess. (1975). Both Committees reported bills to the House and Senate, which again passed a bill reported by the Conference Committee. President Ford again vetoed the bill.
The protracted congressional endeavor finally bore fruit in 1977. The relevant House and Senate Committees held extensive hearings shortly after the opening of the 95th Congress to consider bills introduced at the very beginning of the new legislative session. Surface Mining Control and Reclamation Act of 1977: Hearings on S.7 before the Subcommittee on Public Lands and Resources of the Senate Committee on Energy and Natural Resources, 95th Cong., 1st Sess. (1977) (1977 Senate Hearings); Surface Mining Control and Reclamation Act of 1977: Hearings on H.R.2 before Subcommittee on Energy and the Environment of the House Committee on Interior and Insular Affairs, 95th Cong., 1st Sess. (1977) (1977 House Hearings). The legislation was reported to both Houses and passage in both chambers followed, after lengthy floor debate. 123 Cong.Rec. 12861-12886, 15691-15755 (1977). The Conference Committee Report was issued in July 1977, H.R.Conf.Rep.No.95-493 (1977), and after further floor debate, both Houses agreed to the bill recommended by the conferees. 123 Cong.Rec. 23967-23988, 24419-24429 (1977). President Carter signed the Act into law on August 3, 1977. The legislative history of the Act is summarized in S.Rep.No.95-128, pp. 59-61 (1977), and in H.R.Rep.No.95-218, pp. 140-141 (1977), U.S.Code Cong. & Admin.News 1977, p. 593. See also Note, 81 W.Va.L.Rev. 775 (1979).
20
Appellees do contend that surface mining enhances rather than diminishes the utility of land in the steep-slope areas of Virginia. Congress, however, made contrary findings, and it is sufficient for purposes of judicial review that Congress had a rational basis for concluding as it did. See Kleppe v. New Mexico, 426 U.S. 529, 541, n. 10, 96 S.Ct. 2285, 2292, n. 10, 49 L.Ed.2d 34 (1976); United States v. Carolene Products Co., 304 U.S. 144, 152-154, 58 S.Ct. 778, 783-784, 82 L.Ed. 1234 (1938).
21
See, e. g., United States v. Byrd, 609 F.2d 1204, 1209-1210 (CA7 1979); Bethlehem Steel Corp. v. Train, 544 F.2d 657, 663 (CA3 1976); Sierra Club v. EPA, 176 U.S.App.D.C. 335, 360, 540 F.2d 1114, 1139 (1976), cert. denied, 430 U.S. 959, 97 S.Ct. 1610, 51 L.Ed.2d 811 (1977); District of Columbia v. Train, 172 U.S.App.D.C. 311, 328, 521 F.2d 971, 988 (1975), vacated and remanded on other grounds sub nom. EPA v. Brown, 431 U.S. 99, 97 S.Ct. 1635, 52 L.Ed.2d 166 (1977); United States v. Ashland Oil & Transportation Co., 504 F.2d 1317, 1325 (CA6 1974); Pennsylvania v. EPA, 500 F.2d 246, 259 (CA3 1974); South Terminal Corp. v. EPA, 504 F.2d 646, 677 (CA1 1974); United States v. Bishop Processing Co., 287 F.Supp. 624 (Md.1968), aff'd, 423 F.2d 469 (CA4), cert. denied, 398 U.S. 904, 90 S.Ct. 1695, 26 L.Ed.2d 63 (1970).
22
Section 515(d)(4), 30 U.S.C. § 1265(d)(4) (1976 ed., Supp. III), defines a "steep slope" as "any slope above twenty degrees or such lesser slope as may be defined by the regulatory authority after consideration of soil, climate, and other characteristics of a region or State."
23
The term "approximate original contour" is defined as "that surface configuration achieved by backfilling and grading of the mined area so that the reclaimed area, including any terracing or access roads, closely resembles the general surface configuration of the land prior to mining and blends into and complements the drainage pattern of the surrounding terrain, with all highwalls and spoil piles eliminated." § 701(2), 30 U.S.C. § 1291(2) (1976 ed., Supp. III).
24
Section 515(c), 30 U.S.C. § 1265(c) (1976 ed., Supp. III), establishes a separate variance procedure for mountaintop mining operations.
25
The court reasoned that although the Act allows a State to elect to have its own regulatory program, the "choice that is purportedly given is no choice at all" because the state program must comply with federally prescribed standards. 483 F.Supp., at 432.
26
On the basis of the evidence presented at trial, the court found that postmining restoration of steep slopes to their "approximate original contour" is "economically infeasible and physically impossible." Id., at 434. The court noted that the steep-slope provisions particularly affect Virginia because 95% of its coal reserves are located on such lands. And the court indicated that several coal mine operators had been forced to shut down because they were unable to comply with the Act's requirements, with adverse consequences for the economies of various towns and counties that are dependent on coal mining. The court also found that there is a need for level land in the counties of the Virginia coal fields, and it concluded that the Act's reclamation provisions would prevent "forward-looking land use planning" by the State. Ibid. Finally, the court found that restoration of mined land to its original contour would diminish the value of the land from the $5,000-$300,000-an-acre value of level land to the $5-$75-per-acre value of steep-slope land.
27
In its order and opinion accompanying its denial of the Secretary's request for a stay of its judgment pending appeal, see n. 13, supra, the District Court explained that the injunction against enforcement of the steep-slope standards was not intended to "allo[w] spoil to be placed on the downslope in an uncontrolled manner." The court stated that "[a]ny such downslope spoil placement shall be in a controlled manner meeting environmental protection standards specified by the regulatory authority." J.S.App. 2a.
28
National League of Cities expressly left open the question "whether different results might obtain if Congress seeks to affect integral operations of state governments by exercising authority granted it under other sections of the Constitution such as the spending power, Art. I, § 8, cl. 1, or § 5 of the Fourteenth Amendment." 426 U.S., at 852, n. 17, 96 S.Ct., at 2474, n. 17. In Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976), the Court upheld Congress' power under § 5 of the Fourteenth Amendment to authorize private damages actions against state governments for discrimination in employment. The Court explained that because the Amendment was adopted with the specific purpose of limiting state autonomy, constitutional principles of federalism do not restrict congressional power to invade state autonomy when Congress legislates under § 5 of the Fourteenth Amendment. Id., at 452-456, 96 S.Ct., at 2669-2671. Similarly, in City of Rome v. United States, 446 U.S. 156, 179, 100 S.Ct. 1548, 1562, 64 L.Ed.2d 119 (1980), we held that the Tenth Amendment places no restrictions on congressional power "to enforce the Civil War Amendments 'by appropriate legislation.' "
29
Demonstrating that these three requirements are met does not, however, guarantee that a Tenth Amendment challenge to congressional commerce power action will succeed. There are situations in which the nature of the federal interest advanced may be such that it justifies state submission. See Fry v. United States, 421 U.S. 542, 95 S.Ct. 1792, 44 L.Ed.2d 363 (1975), reaffirmed in National League of Cities v. Usery, 426 U.S., at 852-853, 96 S.Ct., at 2474-2475. See also id., at 856, 96 S.Ct., at 2476 (BLACKMUN, J., concurring).
30
See, e. g., United States v. Helsley, 615 F.2d 784 (CA9 1979) (upholding the Airborne Hunting Act, 16 U.S.C. § 742j-1); Friends of the Earth, Inc. v. Carey, 552 F.2d 25, 36-39 (CA2) (upholding the Clean Air Act, 42 U.S.C. § 7401 et seq. (1976 ed., Supp. III)), cert. denied, 434 U.S. 902, 98 S.Ct. 296, 54 L.Ed.2d 188 (1977); Sierra Club v. EPA, 176 U.S.App.D.C. 335, 359, 540 F.2d 1114, 1140 (1976) (upholding the Clean Water Act, 33 U.S.C. § 1251 et seq.), cert. denied, 430 U.S. 959, 97 S.Ct. 1610, 51 L.Ed.2d 811 (1977).
31
See supra, at 283. It is significant that the Commonwealth of Virginia presses its Tenth Amendment challenge to the Act simply as another regulator of surface coal mining whose regulatory program has been displaced or pre-empted by federal law. As indicated in text, there are no Tenth Amendment concerns in such situations.
32
This holding disposes of the contention by appellees and various amici that the Surface Mining Act is unconstitutional because it presumes the existence of a federal police power. As the Court has stated: " 'The authority of the federal government over interstate commerce does not differ in extent or character from that retained by the states over intrastate commerce.' " United States v. Darby, 312 U.S., at 116, 61 S.Ct., at 458, quoting United States v. Rock Royal Co-operative, 307 U.S. 533, 569-570, 59 S.Ct. 993, 1010-1011, 83 L.Ed. 1446 (1939).
33
The remaining justification asserted by the District Court for its Tenth Amendment ruling, one that appellees urge here, is that the steep-slope mining requirements will harm Virginia's economy and destroy the taxing power of some towns and counties in the Commonwealth. In this regard, the court may have been influenced by the discussion in National League of Cities about the likely effects of the challenged regulations on the finances of state and local governments. National League of Cities v. Usery, 426 U.S., at 846-847, 96 S.Ct., at 2471-2472. But as the Court made clear, the determinative factor in that case was the nature of the federal action, not the ultimate economic impact on the States. Id., at 847, 96 S.Ct., at 2472. Moreover, even if it is true that the Act's requirements will have a measurable impact on Virginia's economy, this kind of effect, standing alone, is insufficient to establish a violation of the Tenth Amendment. In Oklahoma v. Atkinson Co., 313 U.S. 508, 534-535, 61 S.Ct. 1050, 1063-1064, 85 L.Ed. 1487 (1941), the Court rejected the assertion that an adverse impact on state and local economies is a barrier to Congress' exercise of its power under the Commerce Clause to regulate private activities affecting interstate commerce. We are not persuaded that there are compelling reasons presented in the instant cases for reversing the Court's position.
34
We have assumed that the District Court correctly held that land-use regulation is an "integral governmental function" as that term was used in National League of Cities. Our resolution of the Tenth Amendment challenge to the Act makes it unnecessary for us to decide whether this is actually the case.
35
The District Court acknowledged the existence of a statutory procedure for requesting variances from the steep-slope provisions. But the court suggested that the statutory requirement that highwalls of reclaimed mining cuts be completely covered makes this variance procedure "meaningless" to steep-slope mine operators. 483 F.Supp., at 437. This conclusion was premature. See n. 39, infra.
36
With certain specified exceptions, and subject to "valid existing rights," § 522(e) prohibits surface mining operations in national parks and forests, or where they will adversely affect publicly owned parks or places that are included in the National Register of Historic Sites. 30 U.S.C. §§ 1272(e)(1), (2), and (3) (1976 ed., Supp. III). It also prohibits surface mining within 100 feet of a cemetery or the right-of-way of a public road, and within 300 feet of an occupied dwelling, public building, school, church, community or institutional building, or public park. §§ 522(e)(4) and (5).
Sections 522(a), (c), and (d), which become applicable during the permanent phase of the regulatory program, require the establishment of procedures for designating particular lands as unsuitable for some or all surface mining. 30 U.S.C. §§ 1272(a), (c), and (d) (1976 ed., Supp. III). The District Court's ruling that these latter provisions effect an unconstitutional taking of private property is puzzling and cannot stand. Since these provisions do not come into effect until the permanent phase of the Act's regulatory program, they have not been applied to appellees or any other private landowner in Virginia. In these circumstances, there was no justiciable case or controversy with regard to these sections of the Act. See United Public Workers v. Mitchell, 330 U.S. 75, 89-91, 67 S.Ct. 556, 564-565, 91 L.Ed. 754 (1947).
37
Although § 522(e) prohibits any surface coal mining in certain areas, appellees' "taking" challenge to this provision is premature. First, appellees made no showing in the District Court that they own tracts of land that are affected by this provision. Second, § 522(e) does not, on its face, deprive owners of land within its reach of economically viable use of their land since it does not proscribe nonmining uses of such land. Third, § 522(e)'s restrictions are expressly made subject to "valid existing rights." Appellees contend that this exception "applies only to specific surface mining operations for which all required permits were issued prior to August 3, 1977, the effective date of the Act." Brief for Virginia Surface Mining Reclamation Association, Inc., et al., 48. This interpretation of the exception is not compelled by either the statutory language or its legislative history. See H.R.Rep.No.95-218, p. 95 (1977). It is apparently based on 30 CFR § 761.5(a)(2)(i) (1980), a regulation promulgated by the Secretary. That regulation, however, was remanded to the Secretary for reconsideration by the United States District Court for the District of Columbia. In re Permanent Surface Mining Regulation Litigation, 14 ERC 1083, 1091 (D.C.1980), appeals pending, No. 80-1810 et al. (CADC). The Secretary did not ask the Court of Appeals to review this portion of the District Court's judgment.
38
If, as the District Court found, level land in the steep-slope areas of Virginia is worth $5,000-$300,000 per acre, some landowners presumably retain the option of simply leveling the land without first mining the coal. Moreover, if flat benchland is truly as valuable as the court below found, there should be no financial impediment to the re-establishment of flat areas on the sites of some old mining operations, once those areas have been restored and stabilized in the manner required by the Act.
39
The District Court's conclusion that the steep-slope variance procedure in § 515(e) does not offer a meaningful opportunity for administrative relief was premature. Appellees did not identify any instance in which the statutory obligation to cover the highwall had prevented a mine operator from taking advantage of the variance procedure.
40
Although we conclude that "mere enactment" of the Act did not effect a taking of private property, this holding does not preclude appellees or other coal mine operators from attempting to show that as applied to particular parcels of land, the Act and the Secretary's regulations effect a taking. Even then, such an alleged taking is not unconstitutional unless just compensation is unavailable. See Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 94, n. 39, 98 S.Ct. 2620, 2641, n. 39, 57 L.Ed.2d 595 (1978); Regional Rail Reorganization Act Cases, 419 U.S. 102, 125-136 (1974); Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 697, n. 18, 69 S.Ct. 1457, 1465, n. 18, 93 L.Ed. 1628 (1949).
41
Where the Secretary determines that a violation of the Act or of a permit condition does not entail such a serious threat, he must issue a notice of violation fixing a reasonable time for abatement. § 521(a)(3), 30 U.S.C. § 1271(a)(3) (1976 ed., Supp. III). If the violation is not abated within the prescribed period, the Secretary must immediately order total or partial cessation of the offending mining operation.
42
Under § 521(a)(5), 30 U.S.C. § 1271(a)(5) (1976 ed., Supp. III), cessation orders automatically expire after 30 days, "unless a public hearing is held at the site or within such reasonable proximity to the site that any viewings of the site can be conducted during the course of the public hearing."
43
The District Court's January 21, 1980, supplemental order and opinion, see n. 13, supra, explained that its injunction did not apply to immediate cessation orders issued pursuant to § 521(a)(3) against mine operators who had failed to abate violations within the time period specified in the notice of violation. J.S.App. 2a-3a.
44
The legislative history of § 521(a)(2) indicates that Congress viewed the Secretary's power to issue immediate cessation orders as critical, and that the measure was primarily intended to avert the possible occurrence of such disasters as the Buffalo Creek flood. See H.R.Rep.No.95-218, pp. 129-130 (1977); S.Rep.No.95-128, pp. 90-91 (1977). The Buffalo Creek flood was caused by the sudden collapse of a coal mine waste impoundment dam in 1972 near Buffalo Creek, W. Va. The flood left 124 persons dead and rendered 4,000 persons homeless. See H.R.Rep.No.94-1445, p. 19 (1976).
45
The Secretary's regulations define "a significant, imminent environmental harm" in the following terms:
"(a) An environmental harm is any adverse impact on land, air, or water resources, which resources include, but are not limited to, plant and animal life.
"(b) An environmental harm is imminent, if a condition, practice, or violation exists which—(1) Is causing such harm, or, (2) May reasonably be expected to cause such harm at any time before the end of the reasonable abatement time that would be set under Section 521(a)(3) of the Act.
"(c) An environmental harm is significant if that harm is appreciable and not immediately reparable." 30 CFR §§ 700.5 and 701.5 (1980).
46
A different case might be presented if a pattern of abuse and arbitrary action were discernible from review of an agency's administration of a summary procedure. Although the District Court sought to characterize the OSM's record in issuing cessation orders in these terms, a showing that three cessation orders were overturned on administrative appeal is far from sufficient to establish a pattern of abuse and arbitrary action.
47
However, no penalties are finally imposed until the alleged offender has been provided an opportunity for a public hearing. Section 518(b) provides: "A civil penalty shall be assessed by the Secretary only after the person charged with a violation . . . has been given an opportunity for a public hearing." 30 U.S.C. § 1268(b) (1976 ed., Supp. III).
1
We assume, of course, that Congress weighed this probable cost against the desirable environmental goals of the Act.
2
The "taking" question considered by Justice BRENNAN and the three Justices who joined him was not reached by a majority of the Court.
3
In Agins, 447 U.S., at 260, 100 S.Ct., at 2141, we observed that the "determination that government action constitutes a taking is, in essence, a determination that the public at large, rather than a single owner, must bear the burden of an exercise of state power in the public interest."
4
The District Court found that the mining of coal is a $2 billion per year industry in the Commonwealth.
5
It is said, perhaps frivolously now, that bootlegging was the second most remunerative activity in that part of the State.
*
Of course, once the power of Congress to regulate is established the Court will rarely question the manner in which that power is exercised. E. g., U.S. Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 101 S.Ct. 453, 66 L.Ed.2d 368 (1980). Within its sphere of authority, the power of Congress is broad and should only rarely be subject to judicial invalidation. The question here in contrast, is whether Congress even has the authority to act.
| 78
|
452 U.S. 378
101 S.Ct. 2415
69 L.Ed.2d 89
NATIONAL GERIMEDICAL HOSPITAL AND GERONTOLOGY CENTER, Petitioner,v.BLUE CROSS OF KANSAS CITY and Blue Cross Association.
No. 80-802.
Argued April 29, 1981.
Decided June 15, 1981.
Syllabus
Prior to the completion of its construction, petitioner, a private, acute-care community hospital in the Kansas City, Mo., metropolitan area, sought to enter into a participating hospital agreement with respondent Blue Cross of Kansas City (Blue Cross), a nonprofit provider of individual and group health-care reimbursement plans in the area. Blue Cross refused on the basis of its policy barring participation by any new hospital that could not show that it was meeting a clearly evident need for health-care services in its service area. Blue Cross relied on petitioner's failure to obtain approval for construction from the Mid-America Health Systems Agency (MAHSA), a private, nonprofit, federally funded corporation which was the local "health system agency" (HSA) designated for the area under the National Health Planning and Resources Development Act of 1974 (NHPRDA). MAHSA's major function is health planning for the Kansas City metropolitan area. Petitioner had not sought approval of its construction from MAHSA because of the latter's announced policy that it would not approve any addition of acute-care beds in view of its determination that there was a surplus of hospital beds in the area. Alleging a wrongful refusal to deal and a conspiracy between Blue Cross and MAHSA, which resulted in a competitive disadvantage to it, petitioner filed suit against respondents Blue Cross and the National Blue Cross Association for violation of the Sherman Act. Respondents contended that the NHPRDA had impliedly repealed the antitrust laws as applied to the conduct in question. The District Court granted judgment for respondents, finding a clear repugnancy between the NHPRDA and the antitrust laws, and congressional intent to repeal the antitrust laws in this context. The Court of Appeals affirmed.
Held : Although respondents may have acted with only the highest motives in seeking to implement the plans of the local HSA, they cannot defeat petitioner's antitrust claim by the assertion of immunity from the requirements of the Sherman Act. Pp. 388-393. (a) Implied antitrust immunity can be justified only by a convincing showing of clear repugnancy between the antitrust laws and the regulatory system. Even when an industry is regulated substantially, this does not necessarily evidence an intent to repeal the antitrust laws with respect to every action taken within the industry. And intent to repeal the antitrust laws is much clearer when a regulatory agency has been empowered to regulate the type of conduct under antitrust challenge. Pp. 388-389.
(b) The action challenged here was neither compelled nor approved by any governmental regulatory body. Instead, it was a spontaneous response to the finding of only an advisory planning body, the local HSA which, under the NHPRDA, has no regulatory authority over health-care providers. And, the application of the antitrust laws to the Blue Cross' conduct would not frustrate a particular provision of the NHPRDA or create a conflict with the orders of any regulatory body. Nor does the NHPRDA require Blue Cross to take an action that, in essence, sought to enforce the advisory decision of MAHSA. There is no reason to believe that Congress specifically contemplated "enforcement" of advisory decisions of an HSA by private insurance providers, let alone relied on such actions to put "teeth" into the noncompulsory local planning process. Pp. 389-391.
(c) And NHPRDA is not so incompatible with antitrust concerns as to create a "pervasive" repeal of the antitrust laws as applied to every action taken in response to the health-care planning process. Respondents have failed to make the showing necessary for an exemption of all such actions. Pp. 391-393.
8th Cir., 628 F.2d 1050, reversed and remanded.
Erwin N. Griswold, Washington, D. C., for petitioner.
Sol. Gen. Wade H. McCree, Jr., Washington, D. C., for the United States as amicus curiae by special leave of Court.
Joshua F. Greenberg, New York City, for respondents.
Carl Weissburg and J. Mark Waxman, Los Angeles, Cal., for the Federation of American Hospitals as amicus curiae.
Justice POWELL delivered the opinion of the Court.
1
The petitioner in this case, National Gerimedical Hospital and Gerontology Center (National Gerimedical) filed an antitrust suit against respondents, Blue Cross of Kansas City (Blue Cross) and the national Blue Cross Association, challenging the refusal of Blue Cross to accept petitioner as a participating member provider under its health insurance plan. The issue presented here is whether this refusal by Blue Cross is immunized from antitrust scrutiny because it was intended to aid implementation of the plans of the "health systems agency" designated for the Kansas City area under the National Health Planning and Resources Development Act of 1974.
2
* Petitioner National Gerimedical is a private, acute-care community hospital opened in 1978 in the Kansas City, Mo., metropolitan area.1 Prior to the completion of construction, petitioner sought to enter into a participating hospital agreement with Blue Cross, a nonprofit provider of individual and group health-care reimbursement plans in Missouri and Kansas. Under such an agreement, participating hospitals receive direct reimbursement of the full costs of covered services rendered to individual Blue Cross subscribers.2 When subscribers receive care in hospitals that are not participating members, Blue Cross pays only 80% of the cost, and these payments are made to the subscriber, rather than directly to the hospital.
3
Blue Cross refused to enter into a participating hospital agreement with petitioner on the basis of its official policy barring participation by any new hospital that could not show that it was meeting "a clearly evident need for health care services in its defined service area."3 In determining that petitioner had not satisfied this requirement, Blue Cross relied on petitioner's failure to obtain approval for construction from the local "health systems agency" or "HSA"—the Mid-America Health Systems Agency (MAHSA).4 This agency is a private nonprofit corporation, federally funded under the National Health Planning and Resources Development Act of 1974 (NHPRDA), 88 Stat. 2229, as amended, 42 U.S.C. § 300l (1976 ed. and Supp.IV). Its major function is health planning for the Kansas City metropolitan area.
4
In conducting its planning functions, MAHSA had determined that there was a surplus of hospital beds in the area and had announced that it would not approve any addition of acute-care beds in area hospitals. As a result of this announced policy, petitioner did not seek MAHSA approval of its construction, leading to the refusal of participating hospital status by Blue Cross.
5
Claiming that this refusal by Blue Cross put it at a competitive disadvantage, petitioner filed suit in the United States District Court for the Western District of Missouri against Blue Cross and the national Blue Cross Association. It claimed violations of §§ 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1, 2, alleging a wrongful refusal to deal and a conspiracy between Blue Cross and MAHSA.5 As relief petitioner sought treble damages and an injunction to prevent future violations.
6
Respondents moved to dismiss the complaint on the ground that the NHPRDA had impliedly repealed the anti-trust laws as applied to the conduct in question.6 The District Court treated this motion as one for summary judgment, and granted judgment for respondents. 479 F.Supp. 1012 (1979). It reasoned that if private parties seeking to effectuate the planning objectives of an HSA could be subjected to antitrust liability, accomplishment of the goals of the NHPRDA would be frustrated. Id., at 1021. Having found a "clear repugnancy,"id., at 1024, between this Act and the antitrust laws, the court relied largely on legislative history for the view that "Congress intended that action taken pursuant to the Act and clearly within the scope of the Act would be exempt from application of the antitrust laws," ibid. The United States Court of Appeals for the Eighth Circuit affirmed, essentially adopting the reasoning of the District Court. 628 F.2d 1050 (1980). The Court of Appeals agreed with the District Court's "finding of clear repugnancy between the Act and the antitrust laws as the Act and regulatory scheme clearly call for the action which has now become the basis of an antitrust claim." Id., at 1055-1056. It then quoted in full the District Court's argument for the view that Congress intended repeal of the antitrust laws in this context.
7
We granted a writ of certiorari to review this important question. 449 U.S. 1123, 101 S.Ct. 938, 67 L.Ed.2d 108 (1981).
II
8
Our decision in this case requires careful attention to the structure and goals of the NHPRDA as well as a review of this Court's decisions in the area of implied repeals of the antitrust laws. We begin with a description of the complex scheme of regulatory and planning agencies established by the NHPRDA in order to assess the legal significance of that Act with respect to the antitrust claim brought here.
9
MAHSA, the health systems agency whose refusal to approve new hospital construction in the Kansas City area prompted Blue Cross not to accept petitioner as a participating hospital, is but one part of a larger statutory scheme. The NHPRDA, 42 U.S.C. § 300k et seq., created federal, state, and local bodies that coordinate their activities in the area of health planning and policy. Building on existing planning and development statutes,7 Congress sought in 1974 to create a statutory scheme that would assist in preventing overinvestment in and maldistribution of health facilities. See 1974 Senate Report, at 39; U.S.Code Cong. & Admin.News 1974, p. 7842.
10
HSA's such as MAHSA are concerned with health planning in a particular metropolitan area. See generally H.R.Rep.No.93-1382, pp. 40-41 (1974). Each is a nonprofit private corporation, public regional planning body, or single unit of local government, serving a particular "health service area." 42 U.S.C. § 300l -1(b)(1). The statute requires that a majority of HSA board members be consumers of health care and that at least 40% be health-care "providers." § 300l -1(b)(3)(C). The "primary responsibility" of each HSA is "effective health planning for its health service area and the promotion of the development within the area of health services, manpower, and facilities which meet identified needs, reduce documented inefficiencies, and implement the health plans of the agency." § 300l -2(a). As originally enacted, the Act established four general goals: "improving the health of residents," "increasing the accessibility . . ., acceptability, continuity, and quality of . . . health services," "restraining increases in the cost of . . . health services," and "preventing unnecessary duplication of health resources." § 300l -2(a).8 To accomplish these goals, the Act requires each HSA to formulate a "detailed statement of goals" called a "health systems plan," §300l -2(b)(2), an "annual implementation plan" describing the objectives that will achieve the goals of the general plan, § 300l -2(b)(3), and "specific plans and projects for achieving the objectives established in the" annual implementation plan, § 300l -2(b)(4). Each HSA is instructed to "seek, to the extent practicable, to implement [its plans] with the assistance of individuals and public and private entities in its health service area." §300l -2(c)(1). In addition, it may provide "technical assistance" to individuals and public and private entities for the development of necessary projects and programs, § 300l -2(c)(2), and should use grants and contracts to encourage these projects and programs, § 300l -2(c)(3). The agencies do not possess regulatory authority over health-care providers.
11
At the state level, the Act created two separate bodies. The first, a State Health Planning and Development Agency, is a state agency created by agreement between a Governor and the Federal Government. See § 300m. It is intended to perform certain crucial functions that cannot be undertaken by local HSA's:
12
"Specifically, the integration and synthesis of areawide health plans into a Statewide health plan, the establishment of priorities within the State, and the performance of regulatory functions are most appropriately carried out at the State level. The latter function can appropriately be carried out only by an agency of State government." 1974 Senate Report, at 52.
13
Each state agency must be governed by a "State Program," which the Secretary of Health and Human Services may approve only if it meets guidelines set out in 42 U.S.C. §§ 300m-1, 300m-2. Included in these guidelines is the requirement that each State establish a "certificate of need" program under which all new institutional health facilities must seek state approval prior to construction. § 300m-2(a)(4)(A).9 This procedure is "the basic component in an overall effort to control the unnecessary capital expenditures which contribute so greatly to the total national health bill." S.Rep.No.96-96, p. 5 (1979), U.S.Code Cong. & Admin.News 1979, pp. 1306, 1310 (hereinafter 1979 Senate Report).
14
The State Health Planning and Development Agency is advised by a Statewide Health Coordinating Council, composed in part of representatives of local HSA's. This council is empowered to review the plans of HSA's, review and revise state plans, and make recommendations with respect to applications for federal funds from HSA's and States. 42 U.S.C. § 300m-3(c).
15
In addition to various review functions, the Federal Government plays a separate role in this statutory scheme. The NHPRDA requires the Secretary of Health and Human Services to issue guidelines concerning the appropriate supply, distribution, and organization of health resources. § 300k-1; see 42 CFR § 121.1 et seq. (1980). Finally, the Act created a National Council on Health Planning and Development to advise the Secretary on these guidelines and on the general administration of the Act. 42 U.S.C. § 300k-3.
16
This elaborate planning structure was intended by Congress to remedy perceived deficiencies in the performance of the health-care industry as it existed prior to 1974. The problems addressed fall into two categories. First, there was concern that marketplace forces in this industry failed to produce efficient investment in facilities and to minimize the costs of health care.10 In addition, Congress sought to reduce the maldistribution of health-care facilities.11
17
In 1979, Congress amended the NHPRDA substantially in the Health Planning and Resources Development Amendments of 1979, Pub.L. 96-79, 93 Stat. 592. A purpose of these Amendments was to "[d]irect that special consideration be given throughout the planning process to the importance of maintaining and improving competition in the health industry." 1979 Senate Report, at 3, U.S.Code Cong. & Admin.News 1979, p. 1308.12 Toward this end, Congress added a number of provisions requiring promotion of competition at the local, state, and federal levels. 42 U.S.C. §§ 300k-2(b), 300l-2(a)(5) (1976 ed., Supp.IV); 42 U.S.C. §§ 300n-1(c)(11), (12) (1976 ed., Supp.IV). See generally H.R.Conf.Rep.No.96-420, p. 58 (1979). In so doing, however, Congress recognized a distinction between areas where competition could serve a useful purpose and those where some other allocation of resources remained necessary.13
III
18
National Gerimedical contends that the denial by Blue Cross of participating hospital status violated the antitrust laws. Blue Cross defends on the ground that it acted pursuant to the local HSA plan and only intended to further the purposes of the NHPRDA. It argues that, despite the absence of any reference to the antitrust laws in the NHPRDA, the creation of the planning structure summarized above implied a repeal of those laws, as applied to this conduct.
19
On a number of occasions, this Court has faced similar claims of antitrust immunity in the context of various regulated industries. The general principles applicable to such claims are well established. The antitrust laws represent a "fundamental national economic policy." Carnation Co. v. Pacific Westbound Conference, 383 U.S. 213, 218, 86 S.Ct. 781, 784, 15 L.Ed.2d 709 (1966); see Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 398-399, 98 S.Ct. 1123, 1129, 55 L.Ed.2d 364 (1978). "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." United States v. National Association of Securities Dealers, 422 U.S. 694, 719-720, 95 S.Ct. 2427, 2442-2443, 45 L.Ed.2d 486 (1975); see Gordon v. New York Stock Exchange, 422 U.S. 659, 682, 95 S.Ct. 2598, 2611, 45 L.Ed.2d 463 (1975); United States v. Philadelphia National Bank, 374 U.S. 321, 350-351, 83 S.Ct. 1715, 1734, 10 L.Ed.2d 915 (1963). "Repeal is to be regarded as implied only if necessary to make the [subsequent law] work, and even then only to the minimum extent necessary. This is the guiding principle to reconciliation of the two statutory schemes." Silver v. New York Stock Exchange, 373 U.S. 341, 357, 83 S.Ct. 1246, 1257, 10 L.Ed.2d 389 (1963).
20
To be sure, where Congress did intend to repeal the antitrust laws, that intent governs, United States v. National Association of Securities Dealers, supra; Gordon v. New York Stock Exchange, supra, but this intent must be clear. Even when an industry is regulated substantially, this does not necessarily evidence an intent to repeal the antitrust laws with respect to every action taken within the industry. E. g., Otter Tail Power Co. v. United States, 410 U.S. 366, 372-375, 93 S.Ct. 1022, 1027-1028, 35 L.Ed.2d 359 (1973); United States v. Radio Corp. of America, 358 U.S. 334, 346, 79 S.Ct. 457, 464, 3 L.Ed.2d 354 (1959). Intent to repeal the antitrust laws is much clearer when a regulatory agency has been empowered to authorize or require the type of conduct under antitrust challenge. E. g., United States v. National Association of Securities Dealers, supra, at 730-734, 95 S.Ct., at 2448-2450; Gordon v. New York Stock Exchange, supra, 422 U.S., at 689-690, 95 S.Ct., at 2614-2615.
21
In the present case, we must apply these precedents to an industry with a regulatory structure quite different from those considered previously. The action challenged here was neither compelled nor approved by any governmental regulatory body. Instead, it was a spontaneous response to the finding of an advisory planning body, the local HSA, that there was a surplus of acute-care hospital beds in the Kansas City area.14 Indeed, when respondents refused to enter into the agreement with petitioner, the regulatory aspects of the NHPRDA—controlled by the state health planning agencies—were not in place in Missouri. There simply was no regulation of this hospital construction, as Missouri had not established any state regulatory agency with authority to review hospital construction.15
22
As a result, the claim of implied antitrust immunity in this case is weaker than in previous cases. It cannot be argued that application of the antitrust laws to the conduct of Blue Cross would frustrate a particular provision of the NHPRDA or create a conflict with the orders of any regulatory body. The record discloses no formal request from MAHSA to Blue Cross to refrain from accepting petitioner as a new participating hospital. Even if such a request had been made, it could not have been more than the advice of a private planning body—albeit a planning body created and funded by the Federal Government. This fact is crucial, because antitrust repeals are especially disfavored where the antitrust implications of a business decision have not been considered by a governmental entity. United States v. Radio Corp. of America, supra, 358 U.S., at 339, 346, 79 S.Ct., at 461, 464; cf. Otter Tail, supra, 410 U.S., at 374, 93 S.Ct., at 1028 ("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").
23
Respondents rely on the fact that a major function of an HSA is planning in order to eliminate unnecessary duplication of hospital services, 42 U.S.C. § 300l -2(a)(4) (1976 ed., Supp.IV), and point to statutory language requiring each HSA to "seek, to the extent practicable, to implement its [health plans] with the assistance of individuals and public and private entities in its health service area," § 300l -2(c)(1). Here, respondents argue, the HSA found that petitioner was duplicating hospital facilities unnecessarily, and Blue Cross merely sought to aid in the "implementation" of that finding.
24
We are unpersuaded, however, that the provisions cited by respondents are sufficient to create a "clear repugnancy" between the NHPRDA and the antitrust laws, at least on the facts of this case. See n. 18, infra. Nothing in the NHPRDA requires Blue Cross to take an action that, in essence, sought to enforce the advisory decision of MAHSA. HSA's themselves are required to seek private cooperation only "to the extent practicable." 42 U.S.C. § 300l -2(c)(1). And there is no reason to believe that Congress specifically contemplated such "enforcement" by private insurance providers, let alone relied on such actions to put "teeth" into the noncompulsory local planning process. Congress expected HSA planning to be implemented mainly through persuasion and cooperation. If an HSA recommendation could be used to justify antitrust immunity for such an act of private enforcement, this effectively would give that recommendation greater force than Congress intended.16
25
As there is no direct conflict between the requirements of the NHPRDA and the Sherman Act with respect to the conduct at issue here, respondents' only remaining argument must be that the NHPRDA immunizes all private conduct undertaken in response to the health planning process. Arguably, the fundamental assumption of Congress, particularly in 1974 when it passed the original Act,17 was that competition was not a relevant consideration in the health-care industry. If so, although that industry is not regulated in any comprehensive fashion, it might be concluded that Congress intended "pervasive" cooperation and planning without the interference of antitrust suits.
26
This argument has some force, in light of the prominence Congress gave to the view that "the health care industry does not respond to classic marketplace forces." 1974 Senate Report, at 39. Perhaps it makes little sense in such a context to entertain antitrust suits intended to promote or protect free competition. It is clear, however, that respondents have failed to make the showing necessary for an exemption of all actions of health-care providers taken in response to planning recommendations. In other industrial contexts, we have refused such a blanket exemption, despite a clear congressional finding that some substitution of regulation for competition was necessary. Carnation Co. v. Pacific Westbound Conference, 383 U.S., at 217-219, 86 S.Ct., at 784-785 (maritime industry); Otter Tail, 410 U.S., at 373-374, 93 S.Ct., at 1027-1028 (electric power industry). These holdings are based on the guiding principle that, where possible, "the proper approach . . . is an analysis which reconciles the operation of both statutory schemes with one another, rather than holding one completely ousted." Silver, 373 U.S., at 357, 83 S.Ct., at 1257. There is no indication that Congress intended a different result with respect to the health-care industry. One manifestation of this is the fact that in the 1979 Amendments Congress did not alter the basic planning structure, even as it made plain its intent that "competition and consumer choice" are to be favored wherever they "can constructively serve . . . to advance the purposes of quality assurance, cost effectiveness, and access." 42 U.S.C. § 300k-2(a)(17) (1976 ed., Supp.IV).18
27
We hold, therefore, that the NHPRDA is not so incompatible with antitrust concerns as to create a "pervasive" repeal of the antitrust laws as applied to every action taken in response to the health-care planning process. Moreover, as discussed above, there was no specific conflict between the Act and the antitrust laws in this case. Although respondents may well have acted here with only the highest of motives in seeking to implement the plans of the local HSA, they cannot defeat petitioner's antitrust claim by the assertion of immunity from the requirements of the Sherman Act.19 As a result, the judgment below must be reversed and the case remanded.
28
It is so ordered.
1
As a Missouri hospital, petitioner has been licensed by the Missouri Division of Health since September 1977. It also has been certified as a Medicare provider by the Department of Health and Human Services.
2
All other acute-care hospitals in the Blue Cross service area are participating members.
3
On January 1, l976, Blue Cross issued a summary of "Prerequisites" by which it would be guided in deciding whether to accept new participating hospitals. App. 141a. These included the following:
"The hospital must meet a clearly evident need for health care services in its defined service area. Health care institutions and institutional services shall be approved, and/or if required by law, certified as necessary, by the designated planning agency or areawide health planning agency respectively; or, when effective, by the designated State Agency as provided for in Public Law 93-641, the 'National Health Planning and Resources Development Act of 1974.' " Id., at 146a.
Blue Cross added that it retained the final discretion in deciding whether to accept a new hospital, and then included a warning to those contemplating new construction:
"Because lack of knowledge by any applicant of this requirement shall not be considered sufficient reason for waiving it, community groups contemplating construction of new hospitals are urged to consult with Blue Cross, if they expect to apply for participation in the hospital service plan, at some time well in advance of actual construction." Ibid.
4
See n. 3, supra. In a newsletter issued on July 21, 1976, Blue Cross announced that "[a]ll projects not reviewed and approved by these Health Systems Agencies will not be reimbursable by Blue Cross of Kansas City." App. 147a.
5
MAHSA was not named as a defendant. Petitioner also included claims under Missouri's antitrust laws.
6
Respondents also argued, unsuccessfully, that their conduct was immune from antitrust attack under the McCarran-Ferguson Act, 15 U.S.C. § 1011 et seq., that their prepaid medical plans are not part of "trade or commerce" within the meaning of the Sherman Act, and that the allegations of conspiracy were insufficient. These claims are not before this Court.
7
See generally S.Rep.No.93-1285, pp. 4-39 (1974) (hereinafter 1974 Senate Report). In 1972, for example, Congress passed § 1122 of the Social Security Act, 42 U.S.C. § 1320a-1, which authorizes the Secretary of Health and Human Services to enter into agreements with willing States, under which a state agency would be designated as the appropriate body for approving capital expenditures in the health-care area. Under § 1122, federal reimbursements under programs including Medicare and Medicaid do not include the capital expenses of hospitals that have not received agency approval.
In 1976, Missouri chose not to renew its agreement with the Federal Government under § 1122, thus eliminating the previous state program for approval of hospital construction. Brief for Respondents 6, n. 6.
8
The Health Planning and Resources Development Amendments of 1979 (1979 Amendments), Pub.L. 96-79, § 103(c), 93 Stat. 595, added another goal, "preserving and improving . . . competition in the health service area." 42 U.S.C. § 300l -2(a)(5) (1976 ed., Supp.IV).
9
The Act provides for reductions in various federal grants to States that do not participate in the planning process. 42 U.S.C. § 300m(d).
10
As the 1974 Senate Report put it:
"The need for strengthened and coordinated planning for personal health services is growing more apparent each day. In the view of the Committee the health care industry does not respond to classic marketplace forces. The highly technical nature of medical services together with the growth of third party reimbursement mechanisms act to attenuate the usual forces influencing the behavior of consumers with respect to personal health services. . . .
"Investment in costly health care resources, such as hospital beds, coronary care units or radio-isotope treatment centers is frequently made without regard to the existence of similar facilities or equipment already operating in an area. Investment in costly facilities and equipment not only results in capital accumulation, but establishes an ongoing demand for payment to support those services. . . .
"A recently published study indicates that by 1975, over 67,000 unneeded hospital beds will be in operation throughout the United States.
"Hospital beds, though unused, contribute substantial additional costs to the health care industry." 1974 Senate Report, at 39.
11
The 1974 Senate Report stated:
"Widespread access and distribution problems exist with respect to medical facilities and services. In many urban areas, hospitals, clinics and other medical care institutions and services are crowded into relatively tiny sectors, while large areas go poorly served or completely unserved. Many rural communities are completely without a physician or any other type of health care service, while adjacent urban areas are oversupplied." Ibid.
12
The Committee also sought to reduce the threat of domination of HSA decisionmaking by providers with a personal stake in the existing health-care system. 1979 Senate Report, at 57-59. See also Rosenblatt, Health Care Reform and Administrative Law: A Structural Approach, 88 Yale L.J. 243, 304-330 (1978) (describing problems of establishing consumer representation in HSA's).
13
In a new subsection, 42 U.S.C. § 300k-2(b)(1) (1976 ed., Supp.IV), Congress made the finding that "the effect of competition on decisions of providers respecting the supply of health services and facilities is diminished," causing "duplication and excess supply of certain health services and facilities." It added that where "competition appropriately allocates supply consistent with health systems plans and State health plans," planning agencies should "give priority . . . to actions which would strengthen the effect of competition on the supply of such services." § 300k-2(b)(3). But, for "health services, such as inpatient health services and other institutional health services, for which competition does not or will not appropriately allocate supply," agencies should "take actions . . . to allocate the supply of such services." § 300k-3(b)(2).
14
Significantly, the MAHSA health systems plan only called on insurers to create incentives to hold down the costs of care in existing institutions, and made no mention of a role for insurers in restraining unneeded hospital construction. The plan calls on the "reimbursement system [to] promote appropriate utilization of hospital services, provide positive incentives for efficient institutions, actively encourage utilization of less costly but equal quality alternatives to inpatient care, and develop uniform reimbursement programs." App. 67a. But it then asserts that "[c]apital investment in institutions [shall] be controlled by an appropriate review agency." Ibid.
15
See n. 7, supra. If it had done so, this case probably would not have arisen. The state agency would have conditioned all hospital construction on issuance of a "certificate of need." See supra, at 385-386. Parties pursuing hospital construction without a certificate of need would now be subject to legal penalties. 42 U.S.C. § 300m-2(a)(4)(A) (1976 ed., Supp.IV).
Missouri subsequently has established a state agency and enacted "certificate of need" legislation. Mo.Rev.Stat. § 197.300 et seq. (Supp.1980).
16
Congress knew how to give an HSA policy greater legal effect. Under 42 U.S.C. § 300l -2(e) (1976 ed., Supp.IV), HSA approval—subject to review by the Secretary—is required for expenditures of funds under certain federal programs.
17
As noted supra, at 387-388, in 1979 competition was given a more prominent place in the thinking of Congress.
18
Nevertheless, because Congress has remained convinced that competition does not operate effectively in some parts of the health-care industry, e. g., 42 U.S.C. § 300k-2(b) (1976 ed., Supp.IV), we emphasize that our holding does not foreclose future claims of antitrust immunity in other factual contexts. Although favoring a reversal in this case, the United States as amicus curiae asserts that "there are some activities that must, by implication, be immune from antitrust attack if HSAs and State Agencies are to exercise their authorized powers." Brief for United States as Amicus Curiae 16, n. 11. Where, for example, an HSA has expressly advocated a form of cost-saving cooperation among providers it may be that antitrust immunity is "necessary to make the [NHPRDA] work." Silver v. New York Stock Exchange, 373 U.S. 341, 357, 83 S.Ct. 1246, 1257, 10 L.Ed.2d 389 (1963). See 124 Cong.Rec. 34932 (1978) (Rep. Rogers) ("The intent of Congress was that HSA's and providers who voluntarily work with them in carrying out the HSA's statutory mandate should not be subject to the antitrust laws. If they were, Public Law 93-641 simply could not be implemented.") Such a case would differ substantially from the present one, where the conduct at issue is not cooperation among providers, but an insurer's refusal to deal with a provider that failed to heed the advice of an HSA.
19
This holding does not, of course, suggest anything about the merits of the antitrust claim in this case. These matters remain to be litigated on remand, where the court should give attention to the particular economic context in which the alleged conspiracy and "refusal to deal" took place.
| 78
|
452 U.S. 412
101 S.Ct. 2434
69 L.Ed.2d 118
Elie JONES, Warden, Stone Mountain Correctional Institution, Appellant,v.Bobby H. HELMS.
No. 80-850.
Argued April 28, 1981.
Decided June 15, 1981.
Syllabus
Under a Georgia statute, a parent who willfully and voluntarily abandons his or her dependent child is guilty of a misdemeanor, and those parents who commit that offense within Georgia and thereafter leave the State are guilty of a felony. Appellee pleaded guilty in a Georgia state court to the felony of abandoning his child and leaving the State, thereby formally admitting that he had willfully and voluntarily abandoned his child, leaving her in a dependent condition, before he left the State. Appellee received a prison sentence and, after exhausting state remedies, filed a petition for habeas corpus in Federal District Court. He claimed that the Georgia statute, by providing for enhanced punishment for parents who left Georgia after abandoning their children, violated the Equal Protection Clause of the Fourteenth Amendment and the Privileges and Immunities Clause of Art. IV, § 2, of the Constitution. The District Court denied relief, but the Court of Appeals reversed.
Held:
1. The Georgia statute does not impermissibly infringe upon the constitutionally protected right to travel. Appellee's guilty plea was an acknowledgment that he had committed a misdemeanor before he initially left Georgia, and his criminal conduct within Georgia necessarily qualified his right thereafter freely to travel interstate. Although a simple penalty for leaving a State is impermissible, if departure aggravates the consequences of conduct that is otherwise punishable, the State may treat the entire sequence of events, from the initial offense to departure from the State, as more serious than its separate components. Appellee has provided no basis for questioning the validity of the legislative judgment that the legitimate purpose of causing parents to support their children is served by making abandonment within the State followed by departure a more serious offense than mere abandonment within the State. Pp. 417-423.
2. Nor does the Georgia statute violate the Equal Protection Clause. The portion of the statute at issue applies equally to all parents residing in Georgia, and appellee has not shown that it has been arbitrarily or discriminatorily applied. It is not necessary to consider whether the State has available less restrictive means to serve the legitimate purposes furthered by the felony provision of the statute. The statute does not infringe upon appellee's fundamental rights, and in this context the State need not employ the least restrictive, or even the most effective or wisest, means to achieve its legitimate ends. Similarly, it need not be determined whether the statute is unnecessarily broad on the ground that it does not require that the act of leaving the State—as well as the act of abandonment—be motivated by a wrongful intent. This is a matter relating to the wisdom of the legislation, and it raises no question with respect to the uniform and impartial character of the State's law. Pp. 2442-2443.
5 Cir., 621 F.2d 211, reversed.
Carol Atha Cosgrove, Atlanta, Ga., for appellant.
James C. Bonner, Jr., Decatur, Ga., for appellee.
Justice STEVENS delivered the opinion of the Court.
1
In Georgia, a parent who willfully and voluntarily abandons his or her dependent child is guilty of a misdemeanor. Those parents who commit that offense within Georgia and thereafter leave the State are guilty of a felony. The question presented by this appeal is whether this statutory classification violates the Equal Protection Clause of the Fourteenth Amendment.1
2
As the case comes to us, the critical facts are not in dispute. In 1976, appellee pleaded guilty in Georgia to the felony of abandoning his child and leaving the State.2 By that plea, appellee formally admitted that he had willfully and voluntarily abandoned his daughter, leaving her in a dependent condition, before he left the State of Georgia.3 He received a 3-year prison sentence which he began to serve in 1978.4
3
After exhausting his state remedies,5 appellee filed a petition for a writ of habeas corpus in the United States District Court for the Middle District of Georgia. He claimed that § 74-9902, by providing for enhanced punishment of those parents who left Georgia after abandoning their children, violated the Equal Protection Clause and the Privileges and Immunities Clause of Art. IV, § 2. See App. 22-23. The District Court denied relief, see id., at 28-29, but the United States Court of Appeals for the Fifth Circuit reversed. See 621 F.2d 211 (1980).6
4
The Court of Appeals held that the statute should be subjected to strict scrutiny because it infringed the fundamental right to travel.7 Applying strict-scrutiny analysis, the court concluded that the state interests served by the statute, although legitimate, could be adequately protected by less drastic means; the statute therefore was invalid.8 In the judgment of the Court of Appeals, the State's interest in extraditing offending parents, as well as its interest in requiring parents to support their children, was adequately served by the remedies provided in the Uniform Reciprocal Enforcement of Support Act (URESA), a version of which had been enacted in Georgia. See Ga.Code § 99-901a et seq. (1978 anl Supp.1980).9 Moreover, because the Court of Appeals understood the statute not to require any proof of criminal intent, it considered this feature a further indication of the statute's unconstitutional overbreadth.10
5
The Warden appealed, and we noted probable jurisdiction. 449 U.S. 1122, 101 S.Ct. 937, 67 L.Ed.2d 108. In an opinion issued several months prior to the Court of Appeals' decision, the Georgia Supreme Court had upheld the felony provision of § 74-9902 against an almost identical constitutional challenge. See Garren v. State, 245 Ga. 323, 264 S.E.2d 876 (1980). We now resolve this conflict between the Georgia Supreme Court and the Court of Appeals by reversing the judgment of the Court of Appeals.
6
* The Court of Appeals' conclusion that § 74-9902 is constitutionally invalid rests entirely on the premise that the statute impairs the fundamental right of every Georgia resident to travel from Georgia to another State.11 It is, of course, well settled that the right of a United States citizen to travel from one State to another and to take up residence in the State of his choice is protected by the Federal Constitution. Although the textual source of this right has been the subject of debate, its fundamental nature has consistently been recognized by this Court. See Shapiro v. Thompson, 394 U.S. 618, 629-631, 89 S.Ct. 1322, 1328-1330, 22 L.Ed.2d 600; United States v. Guest, 383 U.S. 745, 757-759, 86 S.Ct. 1170, 1177-1179, 16 L.Ed.2d 239. The right to travel has been described as a privilege of national citizenship,12 and as an aspect of liberty that is protected by the Due Process Clauses of the Fifth and Fourteenth Amendments.13 Whatever its source, a State may neither tax nor penalize a citizen for exercising his right to leave one State and enter another.
7
Despite the fundamental nature of this right, there nonetheless are situations in which a State may prevent a citizen from leaving. Most obvious is the case in which a person has been convicted of a crime within a State. He may be detained within that State, and returned to it if he is found in another State. Indeed, even before trial or conviction, probable cause may justify an arrest and subsequent temporary detention. Similarly, a person who commits a crime in a State and leaves the State before arrest or conviction may be extradited following "a summary and mandatory executive proceeding."14 Manifestly, a person who has committed an offense against the laws of Georgia may be stopped at its borders and temporarily deprived of his freedom to travel elsewhere within or without the State.15
8
In this case, appellee's guilty plea plea was an acknowledgment that he had committed a misdemeanor before he initially left Georgia for Alabama. Upon conviction of that misdemeanor, he was subject to imprisonment for a period of up to one year.16 Therefore, although he was not convicted of abandonment until after his first trip to Alabama, appellee's own misconduct had qualified his right to travel interstate before he sought to exercise that right. We are aware of nothing in our prior cases or in the language of the Federal Constitution that suggests that a person who has committed an offense punishable by imprisonment has an unqualified federal right to leave the jurisdiction prior to arrest or conviction.
9
This case differs in a significant respect from prior cases involving the validity of state enactments that were said to penalize the exercise of the constitutional right to travel. In the first decision squarely to recognize the right to travel, Crandall v. Nevada, 6 Wall. 35, 18 L.Ed. 744, the Court held that a State may not impose a tax on residents who desire to leave the State, nor on nonresidents merely passing through. In Edwards v. California, 314 U.S. 160, 62 S.Ct. 164, 86 L.Ed. 119, the Court held that a State may not make it a crime to bring a nonresident indigent person into the State. In more recent decisions, the Court has examined state statutes imposing durational residence requirements that deprived new residents of rights or benefits available to old residents, to determine whether such requirements penalized citizens for exercising their constitutional right to travel.17 In all of those cases, the statute at issue imposed a burden on the exercise of the right to travel by citizens whose right to travel had not been qualified in any way. In contrast, in this case, appellee's criminal conduct within the State of Georgia necessarily qualified his right thereafter freely to travel interstate. Appellee's claim is therefore on a different footing from the claims at issue in Crandall, Edwards, and the durational residence requirement cases.18
10
These precedents are inapposite for another reason as well. The question presented by this case is not whether Georgia can justify disparate treatment of residents and nonresidents,19 or of new and old residents.20 Rather, the question is whether the State may enhance the misdemeanor of child abandonment to a felony if a resident offender leaves the State after committing the offense. Presumably the commission of the misdemeanor of child abandonment would not justify a permanent restriction on the offender's freedom to leave the jurisdiction. But a restriction that is rationally related to the offense itself—either to the procedure for ascertaining guilt or innocence, or to the imposition of a proper punishment or remedy—must be within the State's power. Thus, although a simple penalty for leaving a State is plainly impermissible,21 if departure aggravates the consequences of conduct that is otherwise punishable, the State may treat the entire sequence of events, from the initial offense to departure from the State, as more serious than its separate components.
11
The Georgia Supreme Court has held that § 74-9902's enhancement provision serves the "legislative purpose of causing parents to support their children since the General Assembly could have concluded that the parental support obligation is more difficult to enforce if the parent charged with child abandonment leaves the state." Garren v. State, 245 Ga., at 325, 264 S.E.2d, at 878. There can be no question about the legitimacy of the purpose to cause parents to support their children.22 And appellee has not provided us with any basis for questioning the validity of the legislative judgment that this purpose is served by making abandonment within the State followed by departure a more serious offense than mere abandonment within the State. We therefore are unwilling to accept the suggestion that this enhancement is an impermissible infringement of appellee's constitutional right to travel. Accordingly, we reject the premise on which the Court of Appeals' holding rests.
II
12
Having rejected the claim that the Georgia statute impermissibly infringes on the constitutionally protected right to travel, we find no support for the conclusion that the statute violates the Equal Protection Clause. That Clause "announces a fundamental principle: the State must govern impartially. General rules that apply evenhandedly to all persons within the jurisdiction unquestionably comply with this principle." New York City Transit Authority v. Beazer, 440 U.S. 568, 587, 99 S.Ct. 1355, 1366, 59 L.Ed.2d 587.
13
The Equal Protection Clause provides a basis for challenging legislative classifications that treat one group of persons as inferior or superior to others,23 and for contending that general rules are being applied in an arbitrary or discriminatory way.24 The portion of the Georgia statute at issue in this case applies equally to all parents residing in Georgia; nothing in appellee's argument or in the record suggests that the statute has been enforced against appellee any differently than it would be enforced against anyone else who engaged in the same conduct. By its terms, it does not subject "one caste of persons to a code not applicable to another," see n. 23,supra, nor has appellee shown that it has been arbitrarily or discriminatorily applied. Thus, neither on the face of § 74-9902, nor in its application to appellee, can we detect any violation of the constitutional requirement that the State's administration of its laws must be impartial and evenhanded. New York City Transit Authority, supra.
14
The characterization by the Court of Appeals and appellee of the Georgia statute as "overbroad" does not affect our conclusion. Appellee contends, and the Court of Appeals found, that Georgia has available less restrictive means to serve the legitimate purposes furthered by the felony provision of § 74-9902. In particular, our attention is directed to the URESA, which is said to protect the State's interests in fiscal integrity, support of minor children, and extradition of abandoning parents.25 The appellant argues at length that the URESA does not provide an adequate means of enforcing the support obligations of parents who abandon their children and leave the jurisdiction. Although the appellant's argument is persuasive,26 for purposes of deciding this case we need neither accept nor reject it. The Court of Appeals deemed the remedies available under the URESA significant because a legislative program that infringes upon fundamental rights in order to serve legitimate state ends must be the least restrictive means for achieving those ends.27 However, because we have concluded that § 74-9902 does not infringe upon appellee's fundamental rights, this reasoning is inapplicable. In the context of this case, the State need not employ the least restrictive, or even the most effective or wisest, means to achieve its legitimate ends.
15
Similarly, we need neither agree nor disagree with appellee's argument that the statute is unnecessarily severe because it does not require that the act of leaving the State—as well as the act of abandonment—be motivated by a wrongful intent.28 Because of this feature, the statute may well be unnecessarily broad. This is a matter, however, that relates to the wisdom of the legislation. It raises no question with respect to the uniform and impartial character of the State's law. It therefore does not implicate the fundamental principle embodied in the Equal Protection Clause of the Fourteenth Amendment.
16
Because we conclude that § 74-9902 did not penalize the exercise of the constitutional right to travel and did not deny appellee the equal protection of the laws, the judgment of the Court of Appeals is reversed.
17
So ordered.
18
Justice WHITE, concurring.
19
In Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), the Court held that restricting welfare benefits to those who had resided in a State for at least one year penalized the exercise of the constitutional right to travel from State to State and that because it did so, the discrimination against newly arrived residents had to be justified by a compelling state interest to avoid violating the Equal Protection Clause. Such an interest was not found. It seemed to me at the time, and it seems to me now, that the same result would have obtained in that case without implicating the Equal Protection Clause at all, given the Court's view of the relationship between the restriction on travel and the State's justifying interests. As Justice STEWART said in concurrence, any purpose "offered in support of a law that so clearly impinges upon the constitutional right of interstate travel must be shown to reflect a compelling governmental interest." Id., at 643-644, 89 S.Ct., at 1336-1337. In reaching its conclusion, the Court could as well have said that the proffered state interests did not justify the deterrent effect on the right to travel. Had it found those interests sufficient to warrant the residency requirement, however, the equal protection argument would also have been without force because the reason for insisting upon more than a rational basis for the requirement would have disappeared.
20
As I understand it, this is essentially the approach followed by the Court today: it first finds that whatever restriction on interstate travel is imposed by the challenged Georgia provision, the State's interest in enforcing its child support laws is sufficient to justify the restriction. The opinion then finds that the equal protection claim is without substance because there is at least a rational basis for the State's classification.
21
I join the Court's opinion and judgment.
22
Justice BLACKMUN, concurring in the judgment.
23
No one disputes that the State of Georgia can designate the crime of willful child abandonment a felony. It instead has chosen to make the crime a misdemeanor if confined within state boundaries, but a felony once abandonment is accompanied by departure from the State. Thus, in effect, the State requires an abandoning and nonsupporting parent to remain in Georgia if he or she wishes to avoid more serious criminal penalties. This burden on interstate travel applies even if the parent has no criminal intent when crossing the state line.
24
Given the Georgia statutory scheme, § 74-9902(a) clearly penalizes appellee's exercise of his constitutional right to travel. In my view, however, that penalty is justified by the State's special interest in law enforcement in this context. The challenged criminal statute is concerned primarily with restitution rather than punishment, and the core criminal conduct, willful abandonment and continuing nonsupport, is markedly more difficult to redress once the offending parent leaves the jurisdiction. A restriction that reasonably discourages departure may therefore be justified as tailored to further the precise remedial objective of the criminal law. Significantly, however, the objective advanced here is not identical to the more general goal of improving the administration of criminal justice. The Court perhaps has this distinction in mind when it concludes, ante, at 422, that where departure "aggravates the consequences of conduct that is otherwise punishable," it may merit enhanced punishment. I doubt that a State constitutionally may impose greater penalties for all crimes simply because the accused leaves the jurisdiction. To hold otherwise ignores the availability of summary interstate transfer procedures under the Extradition Clause, and chills unacceptably the travel rights of the presumptively innocent citizen.
25
For me, it also is noteworthy that appellee pleaded guilty to the crime of willful abandonment and subsequent departure from the State. The record gives no indication that appellee was anything but aware that his crime would become more serious once he left Georgia. Thus, the Court today need not decide the constitutionality of this statute as applied to a person of ordinary intelligence who had no knowledge, or reason to know, that the protected act of interstate travel would convert him from a misdemeanant into a felon. Cf. Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957).
26
I concur in the judgment.
1
The Fourteenth Amendment provides, in part:
"No State shall . . . deny to any person within its jurisdiction the equal protection of the laws."
2
Appellee pleaded guilt to a charge that he had violated Ga.Code § 74-9902 (Supp.1980), the statute at issue in this case. Section 74-9902(a) provides, in part:
"If any father or mother shall wilfully and voluntarily abandon his or her child, either legitimate or illegitimate, leaving it in a dependent condition, he or she, as the case may be, shall be guilty of a misdemeanor: Provided, however, if any father or mother shall wilfully and voluntarily abandon his or her child, either legitimate or illegitimate, leaving it in a dependent condition, and shall leave this State, or if any father or mother shall wilfully and voluntarily abandon his or her child, either legitimate or illegitimate, leaving it in a dependent condition, after leaving this State, he or she, as the case may be, shall be guilty of a felony. . . ."
3
Appellee previously had separated from his wife and had been ordered to pay to her $150 a month for the support of their minor daughter. It was stipulated that without making any such payments, appellee, "who by then had lost his property in Georgia, left the State and moved back to his native State, Alabama." App. 16. Appellee went to Alabama to pursue certain vocational training opportunities not available to him in Georgia. He did not make child support payments while in Alabama. Appellee remained in Alabama until February 1976 when, while visiting his daughter in Georgia, he was arrested for his continuous failure to pay child support. Id., at 16-17. Shortly thereafter, appellee was formally charged by a Georgia grand jury with a felony violation of § 74-9902. Joint App. 3-4.
4
Initially, appellee received a 3-year suspended sentence conditioned upon his paying $200 per month as support for his child during her minority. Id., at 8. He again left the State without making any such payments, first residing in Alabama and thereafter in Florida. In 1977, his estranged wife was murdered, and appellee gained custody of his daughter in Florida for a brief period of time. Ultimately, appellee moved back to Georgia, and was rearrested for his failure to pay child support. Id., at 17-19. After a hearing, an order was entered enforcing his suspended sentence of imprisonment for a period of three years. Id., at 10.
5
Appellee took no direct appeal from his initial felony conviction. However, in November 1978, after his suspended sentence had been revoked, he sought a writ of habeas corpus in the De Kalb Superior Court. Appellee claimed that the statute under which he had been convicted and sentenced violated both the Equal Protection Clause of the Fourteenth Amendment and the Privileges and Immunities Clause of Art. IV, § 2, of the United States Constitution because it authorized enhanced punishment based solely upon the exercise of the constitutional right to travel interstate and to reside outside the State of Georgia. After an evidentiary hearing, the state habeas court denied relief and ordered appellee remanded to custody. App. 11-15. The Supreme Court of Georgia denied appellee's application for a certificate of probable cause to appeal. Id., at 20.
6
During the pendency of his appeal from the District Court's order, appellee was released from custody. As the Court of Appeals noted, 621 F.2d, at 212, n. 2, appellee's release did not moot his claim. See Carafas v. LaVallee, 391 U.S. 234, 237-240, 88 S.Ct. 1556, 1559-1561, 20 L.Ed.2d 554.
7
The Court of Appeals analyzed the statutory classification, as follows: "The statute thus creates two classes of crimes, the first a misdemeanor for child abandonment within the State, the second a felony for leaving the State after abandonment or abandonment after leaving the State. Those outside Georgia, merely by their presence outside the State, are exposed to risk of a felony conviction while Georgia residents are exposed only to risk of a misdemeanor conviction for the same actions. We find the fundamental right to travel is infringed by this classification system." 621 F.2d, at 212 (footnote omitted).
8
The Court of Appeals concluded that the statutory discrimination was not justified by a compelling state interest:
"We therefore find no sufficiently compelling state interest here which permits distinguishing between nonsupporting parents within or without the State of Georgia. There is no question that the statute violates equal protection. Further, even where a governmental purpose is legitimate, as here, the 'purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.' " Id., at 213 (footnote omitted).
9
According to the Court of Appeals, the URESA adequately served the state interests § 74-9902 was designed to further:
"Georgia argues that the compelling state interests here are (1) the greater ease in extraditing persons accused of felonies than those accused of misdemeanors and (2) the protection of the State's fiscal integrity by the resulting enforcement of required parental child support. These arguments are unpersuasive since Georgia has in place, through its adoption of the Uniform Reciprocal Enforcement of Support Act (URESA), Ga.Code Ann. § 99-9A, et seq., an alternative means of enforcing child support obligations. Fiscal integrity of the State, support of minor children, and extradition of the nonpaying parent are all protected by this Act." 621 F.2d, at 212-213 (footnotes omitted).
10
As the Court of Appeals read § 74-9902, a felony conviction could be secured without any showing by the State that the abandoning parent had acted with criminal intent:
"The failure of the statute to require criminal intent as an element necessary for conviction is further indication of its overbreadth. Under the provision a person leaving the State fully intending to support his or her children, but unable to do so, commits a felony. A series of noncriminal acts can thus become a crime under the statute, subjecting the nonresident to extradition and felony conviction." 621 F.2d, at 213 (footnote omitted).
Although the Court of Appeals' understanding of the statute was correct insofar as its comments concerned the mental state of the parent at the time of his or her departure from the State, the court appears to have overlooked the statutory requirement that the offending parent have "wilfully and voluntarily" abandoned his or her child. See n. 2, supra. As appellant points out, under Georgia law both desertion—i. e., the willful forsaking and desertion of the duties of parenthood—and dependency—i. e., leaving the child without necessaries—are elements of the offense of child abandonment under § 74-9902. See Waites v. State, 138 Ga.App. 513, 514, 226 S.E.2d 621, 622 (1976). Because the State must establish that the desertion was willful, the Court of Appeals erred in suggesting that "[a] series of noncriminal acts can thus become a crime under the statute."
11
It should be noted that this case involves only an abandonment by a resident parent within the State of Georgia, followed by the abandoning parent's departure from the State. Section 74-9902 also purports to define as a felony an abandonment by a parent who is not a resident of Georgia. See n. 2, supra. Although the Court of Appeals appears to have considered this aspect of the statute of some significance, see 621 F.2d, at 212, and appellee emphasizes it in his argument here, we express no opinion on the validity of such an application of § 74-9902. See In re King, 3 Cal.3d 226, 90 Cal.Rptr. 15, 474 P.2d 983 (1970).
12
In Edwards v. California, 314 U.S. 160, 62 S.Ct. 164, 86 L.Ed. 119, the Court held that the Commerce Clause required the invalidation of state statutes designed to restrict interstate migration. Justice Douglas, joined by Justice Black and Justice Murphy, agreed with the Court's judgment, but preferred to rely upon the Privileges and Immunities Clause of the Fourteenth Amendment as the source of the right to travel:
"The right to move freely from State to State is an incident of national citizenship protected by the privileges and immunities clause of the Fourteenth Amendment against state interference. Mr. Justice Moody in Twining v. New Jersey, 211 U.S. 78, 97 [29 S.Ct. 14, 18, 53 L.Ed. 97], stated, 'Privileges and immunities of citizens of the United States . . . are only such as arise out of the nature and essential character of the National Government, or are specifically granted or secured to all citizens or persons by the Constitution of the United States.' And he went on to state that one of those rights of national citizenship was 'the right to pass freely from State to State.' Id., at 97 [29 S.Ct., at 19]." Id., at 178, 62 S.Ct., at 169 (Douglas, J., concurring) (emphasis and ellipsis in original).
Justice Jackson was of essentially the same view. See id., at 182-184, 62 S.Ct., at 171-172 (concurring opinion).
It also should be noted that earlier decisions, beginning with Corfield v. Coryell, 6 F.Cas. No. 3,230, p. 546 (No. 3,230) (CCED Pa. 1825) (Washington, J., Circuit Justice), suggested that the right to travel was a privilege and immunity of national citizenship protected by the Privileges and Immunities Clause of Art. IV. See United States v. Guest, 383 U.S. 745, 764-767, 86 S.Ct. 1170, 1181-1183, 16 L.Ed.2d 239 (opinion of Harlan, J.). In fact, appellee relied upon Art. IV in both his state and federal habeas corpus petitions. See n. 5, supra, at 2438.
13
At the beginning of this century, Chief Justice Fuller, in dictum, identified the Fourteenth Amendment as a source of the right to travel:
"Undoubtedly the right of locomotion, the right to remove from one place to another according to inclination, is an attribute of personal liberty, and the right, ordinarily, of free transit from or through the territory of any State is a right secured by the Fourteenth Amendment and by other provisions of the Constitution." Williams v. Fears, 179 U.S. 270, 274, 21 S.Ct. 128, 129, 45 L.Ed. 186.
In his dissenting opinion in Shapiro v. Thompson, 394 U.S. 618, 671, 89 S.Ct. 1322, 1351, 22 L.Ed.2d 600, Justice Harlan concluded that "the right to travel interstate is a 'fundamental' right which, for present purposes, should be regarded as having its source in the Due Process Clause of the Fifth Amendment." See also United States v. Guest, 383 U.S., at 757-759, 86 S.Ct., at 1177-1179; id., at 769-770, 86 S.Ct., at 1184-1185 (opinion of Harlan, J.).
14
Michigan v. Doran, 439 U.S. 282, 288, 99 S.Ct. 530, 535, 58 L.Ed.2d 521.
15
In his concurring opinion in Edwards v. California, supra, Justice Jackson explained this limitation on the right to travel:
"The right of the citizen to migrate from state to state which, I agree with Mr. Justice Douglas, is shown by our precedents to be one of national citizenship, is not, however, an unlimited one. In addition to being subject to all constitutional limitations imposed by the federal government, such citizen is subject to some control by state governments. He may not, if a fugitive from justice, claim freedom to migrate unmolested, nor may he endanger others by carrying contagion about. These causes, and perhaps others that do not occur to me now, warrant any public authority in stopping a man where it finds him and arresting his progress across a state line quite as much as from place to place within the state." 314 U.S., at 184, 62 S.Ct., at 172.
16
See Ga.Code § 27-2506 (1978).
17
In Dunn v. Blumstein, 405 U.S. 330, 334, 92 S.Ct. 995, 999, 31 L.Ed.2d 274, we explained the problem presented by durational residence requirements:
"Durational residence laws penalize those persons who have traveled from one place to another to establish a new residence during the qualifying period. Such laws divide residents into two classes, old residents and new residents, and discriminate against the latter. . . ."
We have invalidated durational residence requirements that operated to deprive new residents of the right to vote, Dunn, supra, and of welfare and medical care benefits. See Shapiro v. Thompson, supra; Memorial Hospital v. Maricopa County, 415 U.S. 250, 94 S.Ct. 1076, 39 L.Ed.2d 306. However, even though durational residence requirements necessarily impinge to some extent on the right to travel, they are not automatically invalid. Memorial Hospital, supra, at 256, 94 S.Ct., at 1081. See, e. g., Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532; cf. Vlandis v. Kline, 412 U.S. 441, 452-453, 93 S.Ct. 2230, 2236-2237, 37 L.Ed.2d 63.
18
In its decision sustaining the validity of § 74-9902, the Georgia Supreme Court recognized this distinction:
"There is an entirely obvious difference, on the one hand, between an attempt by a 'receiving state' to preclude or discourage inward migration from 'sending states' of persons deemed by the 'receiving state' to be 'undesirables,' 'non-contributors' or 'economically burdensome persons,' and efforts, as in the present case, by a 'sending state' to bring persons accused of crimes back from 'receiving states' to face criminal trial and punishment in the 'sending state.' Persons, including indigents and other migrants, have a right to free travel. . . . On the other hand, persons charged with the commission of crimes shall be delivered up to the state having jurisdiction of the crime . . . . A person charged in Georgia with commission of a crime who has left Georgia and entered another state cannot be said to have a constitutionally protected right of free travel in interstate commerce that can be asserted to bar prosecution for the Georgia offense." Garren v. State, 245 Ga. 323, 324-325, 264 S.E.2d 876, 877-878 (1980) (citations omitted).
The California Supreme Court recognized the same distinction in an opinion upholding a statute that tolled the statute of limitations for criminal offenses during the time the defendant was outside the State: "[T]here is clearly a distinction between one who, like defendant, leaves the state after committing a crime, resulting in the tolling of the statute of limitations during his absence, and one who has committed no crime but is deprived of a government benefit merely because he exercises his right to travel to another state. In the former circumstance, the state has an interest in assuring that the defendant is available locally not only to enhance the possibility of detection but also to avoid the burdens of extradition proceedings, should he be charged, his whereabouts become known, and he refuses to return voluntarily." Scherling v. Superior Court of Santa Clara County, 22 Cal.3d 493, 501, 149 Cal.Rptr. 597, 585 P.2d 219, 223-224 (1978).
19
See n. 11, supra.
20
The latter variety of disparate treatment was primarily at issue in cases such as Shapiro v. Thompson, Dunn v. Blumstein, and Memorial Hospital v. Maricopa County, supra.
21
Cf. Crandall v. Nevada, 6 Wall. 35, 18 L.Ed 744; Edwards v. California, 314 U.S. 160, 62 S.Ct. 164, 86 L.Ed. 119.
22
Indeed, the Court of Appeals and appellee both acknowledged the legitimacy of the statute's purposes. See 621 F.2d, at 213; Brief for Appellee 13-15.
23
An effective expression of this point was made in the Senate debate preceding the adoption of the Fourteenth Amendment. Senator Howard stated:
"This abolishes all class legislation in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another.
* * * * *
It establishes equality before the law, and it gives to the humblest, the poorest, the most despised of the race the same rights and the same protection before the law as it gives to the most powerful, the most wealthy, or the most haughty. That, sir is republican government, as I understand it, and the only one which can claim the praise of a just Government." Cong.Globe, 39th Cong., 1st Sess., 2766 (1866).
Most frequently, claims of denial of equal protection of the laws are asserted by the members of a class of persons easily defined by a characteristic such as race, sex, alienage, illegitimacy, or religion.
24
See, e. g., Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220.
25
See n. 9, supra. Appellee also suggests that making all child abandonments felonies would serve Georgia's legitimate interests in a "less restrictive" fashion than § 74-9902. It is true that such a change would preclude appellee's claim that the statute is discriminatory, but it is not clear that such a statute would be less restrictive.
26
A number of commentators have identified the same weaknesses in the enforcement mechanism established in the URESA as the appellant cites in his argument in this case. See, e. g., Note, Interstate Enforcement of Support Obligations Through Long Arm Statutes and URESA, 18 J.Fam.Law 537, 541 (1980); Comment, Enforcement of Support Obligations: A Solution and Continuing Problems, 61 Ky.L.J. 322, 328-329 (1972). Cf. Chambers, Men Who Know They Are Watched: Some Benefits and Costs of Jailing for Nonpayment of Support, 75 Mich.L.Rev. 900 (1977).
27
The Court of Appeals relied upon Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231, for this proposition:
"[E]ven though the government 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." Id., at 488, 81 S.Ct., at 252 (footnotes omitted).
28
The Court of Appeals considered the statute's failure to require that the act of leaving the State be accompanied by criminal intent a significant defect. See supra, at 416, and n. 10.
| 12
|
452 U.S. 337
101 S.Ct. 2392
69 L.Ed.2d 59
James A. RHODES et al., Petitioners,v.Kelly CHAPMAN et al.
No. 80-332.
Argued March 2, 1981.
Decided June 15, 1981.
Syllabus
Respondents, who were housed in the same cell in an Ohio maximum-security prison, brought a class action in Federal District Court under 42 U.S.C. § 1983 against petitioner state officials, alleging that "double celling" violated the Constitution and seeking injunctive relief. Despite its generally favorable findings of fact, the District Court concluded that the double celling was cruel and unusual punishment in violation of the Eighth Amendment, as made applicable to the States through the Fourteenth Amendment. This conclusion was based on five considerations: (1) inmates at the prison were serving long terms of imprisonment; (2) the prison housed 38% more inmates than its "design capacity"; (3) the recommendation of several studies that each inmate have at least 50-55 square feet of living quarters as opposed to the 63 square feet shared by the double-celled inmates; (4) the suggestion that double-celled inmates spend most of their time in their cells with their cellmates; and (5) the fact that double celling at the prison was not a temporary condition. The Court of Appeals affirmed.
Held : The double celling in question is not cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments. Pp. 344-352.
(a) Conditions of confinement, as constituting the punishment at issue, must not involve the wanton and unnecessary infliction of pain, nor may they be grossly disproportionate to the severity of the crime warranting imprisonment. But conditions that cannot be said to be cruel and unusual under contemporary standards are not unconstitutional. To the extent such conditions are restrictive and even harsh, they are part of the penalty that criminals pay for their offenses against society. Pp. 345-347.
(b) In view of the District Court's findings of fact, virtually every one of which tends to refute respondents' claim, its conclusion that double celling at the prison constituted cruel and unusual punishment is insupportable. P.p. 347-348.
(c) The five considerations on which the District Court relied are insufficient to support its constitutional conclusion. Such considerations properly are weighed by the legislature and prison administration rather than by a court. They fall far short in themselves of proving cruel and unusual punishment, absent evidence that double celling under the circumstances either inflicts unnecessary or wanton pain or is grossly disproportionate to the severity of the crime warranting imprisonment. Pp. 348-350.
(d) In discharging their oversight responsibility to determine whether prison conditions amount to cruel and unusual punishment, courts cannot assume that state legislatures and prison officials are insensitive to the requirements of the Constitution or to the sociological problems of how best to achieve the goals of the penal function in the criminal justice system. Pp. 351-352.
6th Cir., 624 F.2d 1099, reversed.
Allen P. Adler, Columbus, Ohio, for petitioners.
Jean P. Kamp, Columbus, Ohio, for respondents.
Justice POWELL delivered the opinion of the Court.
1
The question presented is whether the housing of two inmates in a single cell at the Southern Ohio Correctional Facility is cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments.
2
* Respondents Kelly Chapman and Richard Jaworski are inmates at the Southern Ohio Correctional Facility (SOCF), a maximum-security state prison in Lucasville, Ohio. They were housed in the same cell when they brought this action in the District Court for the Southern District of Ohio on behalf of themselves and all inmates similarly situated at SOCF. Asserting a cause of action under 42 U.S.C. § 1983, they contended that "double celling" at SOCF violated the Constitution. The gravamen of their complaint was that double celling confined cellmates too closely. It also was blamed for overcrowding at SOCF, said to have overwhelmed the prison's facilities and staff.1 As relief, respondents sought an injunction barring petitioners, who are Ohio officials responsible for the administration of SOCF, from housing more than one inmate in a cell, except as a temporary measure.
3
The District Court made extensive findings of fact about SOCF on the basis of evidence presented at trial and the court's own observations during an inspection that it conducted without advance notice. 434 F.Supp. 1007 (1977). These findings describe the physical plant, inmate population, and effects of double celling. Neither party contends that these findings are erroneous.
4
SOCF was built in the early 1970's. In addition to 1,620 cells, it has gymnasiums, workshops, school rooms, "dayrooms," two chapels, a hospital ward, commissary, barbershop, and library.2 Outdoors, SOCF has a recreation field, visitation area, and garden. The District Court described this physical plant as "unquestionably a top-flight, first-class facility." Id., at 1009.
5
Each cell at SOCF measures approximately 63 square feet. Each contains a bed measuring 36 by 80 inches, a cabinet-type night stand, a wall-mounted sink with hot and cold running water, and a toilet that the inmate can flush from inside the cell. Cells housing two inmates have a two-tiered bunk bed. Every cell has a heating and air circulation vent near the ceiling, and 960 of the cells have a window that inmates can open and close. All of the cells have a cabinet, shelf, and radio built into one of the walls, and in all of the cells one wall consists of bars through which the inmates can be seen.
6
The "dayrooms" are located adjacent to the cellblocks and are open to inmates between 6:30 a. m. and 9:30 p. m. According to the District Court, "[t]he day rooms are in a sense part of the cells and they are designed to furnish that type of recreation or occupation which an ordinary citizen would seek in his living room or den." Id., at 1012. Each dayroom contains a wall-mounted television, card tables, and chairs. Inmates can pass between their cells and the dayrooms during a 10-minute period per hour, on the hour, when the doors to the dayrooms and cells are opened.
7
As to the inmate population, the District Court found that SOCF began receiving inmates in late 1972 and double celling them in 1975 because of an increase in Ohio's statewide prison population. At the time of trial, SOCF housed 2,300 inmates, 67% of whom were serving life or other long-term sentences for first-degree felonies. Approximately 1,400 inmates were double celled. Of these, about 75% had the choice of spending much of their waking hours outside their cells, in the dayrooms, school, workshops, library, visits, meals, or showers. The other double-celled inmates spent more time locked in their cells because of a restrictive classification.3
8
The remaining findings by the District Court addressed respondents' allegation that overcrowding created by double celling overwhelmed SOCF's facilities and staff. The food was "adequate in every resrect," and respondents adduced no evidence "whatsoever that prisoners have been underfed or that the food facilities have been taxed by the prison population." Id., at 1014. The air ventilation system was adequate, the cells were substantially free of offensive odor, the temperature in the cellblocks was well controlled, and the noise in the cellblocks was not excessive. Double celling had not reduced significantly the availability of space in the dayrooms or visitation facilities,4 nor had it rendered inadequate the resources of the library or schoolrooms.5 Although there were isolated incidents of failure to provide medical or dental care, there was no evidence of indifference by the SOCF staff to inmates' medical or dental needs.6 As to violence, the court found that the number of acts of violence at SOCF had increased with the prison population, but only in proportion to the increase in population. Respondents failed to produce evidence establishing that double celling itself caused greater violence, and the ratio of guards to inmates at SOCF satisfied the standard of acceptability offered by respondents' expert witness. Finally, the court did find that the SOCF administration, faced with more inmates than jobs, had "water[ed] down" jobs by assigning more inmates to each job than necessary and by reducing the number of hours that each inmate worked, id., at 1015; it also found that SOCF had not increased its staff of psychiatrists and social workers since double celling had begun.
9
Despite these generally favorable findings, the District Court concluded that double celling at SOCF was cruel and unusual punishment. The court rested its conclusion on five considerations. One, inmates at SOCF are serving long terms of imprisonment. In the court's view, that fact "can only accent[uate] the problems of close confinement and overcrowding." Id., at 1020. Two, SOCF housed 38% more inmates at the time of trial than its "design capacity." In reference to this the court asserted: "Overcrowding necessarily involves excess limitation of general movement as well as physical and mental injury from long exposure." Ibid. Three, the court accepted as contemporary standards of decency several studies recommending that each prison in an institution have at least 50-55 square feet of living quarters.7 In contrast, double-celled inmates at SOCF share 63 square feet. Four, the court asserted that "[a]t the best a prisoner who is double celled will spend most of his time in the cell with his cellmate."8 Id., at 1021. Five, SOCF has made double celling a practice; it is not a temporary condition.9
10
On appeal to the Court of Appeals for the Sixth Circuit, petitioners argued that the District Court's conclusion must be read, in light of its findings, as holding that double celling is per se unconstitutional. The Court of Appeals disagreed; it viewed the District Court's opinion as holding only that double celling is cruel and unusual punishment under the circumstances at SOCF. It affirmed, without further opinion, on the ground that the District Court's findings were not clearly erroneous, its conclusions of law were "permissible from the findings," and its remedy was a reasonable response to the violations found.10
11
We granted the petition for certiorari because of the importance of the question to prison administration. 449 U.S. 951, 101 S.Ct. 353, 66 L.Ed.2d 214 (1980). We now reverse.
II
12
We consider here for the first time the limitation that the Eighth Amendment, which is applicable to the States through the Fourteenth Amendment, Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), imposes upon the conditions in which a State may confine those convicted of crimes. It is unquestioned that "[c]onfinement in a prison . . . is a form of punishment subject to scrutiny under the Eighth Amendment standards." Hutto v. Finney, 437 U.S. 678, 685, 98 S.Ct. 2565, 2570, 57 L.Ed.2d 522 (1978); see Ingraham v. Wright, 430 U.S. 651, 669, 97 S.Ct. 1401, 1411, 51 L.Ed.2d 711 (1977); cf. Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). But until this case, we have not considered a disputed contention that the conditions of confinement at a particular prison constituted cruel and unusual punishment.11 Nor have we had an occasion to consider specifically the principles relevant to assessing claims that conditions of confinement violate the Eighth Amendment. We look, first, to the Eighth Amendment precedents for the general principles that are relevant to a State's authority to impose punishment for criminal conduct.
13
The Eighth Amendment, in only three words, imposes the constitutional limitation upon punishments: they cannot be "cruel and unusual." The Court has interpreted these words "in a flexible and dynamic manner," Gregg v. Georgia, 428 U.S. 153, 171, 96 S.Ct. 2909, 2924, 49 L.Ed.2d 859 (1976) (joint opinion), and has extended the Amendment's reach beyond the barbarous physical punishments at issue in the Court's earliest cases. See Wilkerson- v. Utah, 99 U.S. 130, 25 L.Ed. 345 (1879); In re Kemmler, 136 U.S. 436, 10 S.Ct. 930, 34 L.Ed. 519 (1890). Today the Eighth Amendment prohibits punishments which, although not physically barbarous, "involve the unnecessary and wanton infliction of pain," Gregg v. Georgia, supra, at 173, 96 S.Ct., at 2925, or are grossly disproportionate to the severity of the crime, Coker v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 2866, 53 L.Ed.2d 982 (1977) (plurality opinion); Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910).12 Among "unnecessary and wanton" inflictions of pain are those that are "totally without penological justification." Gregg v. Georgia, supra, 428 U.S., at 183, 96 S.Ct., at 2929; Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 290, 50 L.Ed.2d 251 (1976).
14
No static "test" can exist by which courts determine whether conditions of confinement are cruel and unusual, for the Eighth Amendment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 596 (1958) (plurality opinion). The Court has held, however, that "Eighth Amendment judgments should neither be nor appear to be merely the subjective views" of judges. Rummel v. Estelle, 445 U.S. 263, 275, 100 S.Ct. 1133, 1139, 63 L.Ed.2d 382 (1980). To be sure, "the Constitution contemplates that in the end [a court's] own judgment will be brought to bear on the question of the acceptability" of a given punishment. Coker v. Georgia, supra, 433 U.S., at 597, 97 S.Ct., at 2868 (plurality opinion); Gregg v. Georgia, supra, 428 U.S., at 182, 96 S.Ct., at 2929 (joint opinion). But such " 'judgment[s] should be informed by objective factors to the maximum possible extent.' " Rummel v. Estelle, supra, 445 U.S., at 274-275, 100 S.Ct., at 1139, quoting Coker v. Georgia, supra, at 592, 97 S.Ct., at 2866 (plurality opinion). For example, when the question was whether capital punishment for certain crimes violated contemporary values, the Court looked for "objective indicia" derived from history, the action of state legislatures, and the sentencing by juries. Gregg v. Georgia, supra, 428 U.S., at 176-187, 96 S.Ct., at 2926-2931; Coker v. Georgia, supra, 433 U.S., at 593-596, 97 S.Ct., at 2868. Our conclusion in Estelle v. Gamble, supra, that deliberate indifference to an inmate's medical needs is cruel and unusual punishment rested on the fact, recognized by the common law and state legislatures, that "[a]n inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met." 429 U.S., at 103, 97 S.Ct., at 290.
15
These principles apply when the conditions of confinement compose the punishment at issue. Conditions must not involve the wanton and unnecessary infliction of pain, nor may they be grossly disproportionate to the severity of the crime warranting imprisonment. In Estelle v. Gamble, supra, we held that the denial of medical care is cruel and unusual because, in the worst case, it can result in physical torture, and, even in less serious cases, it can result in pain without any penological purpose. 429 U.S., at 103, 97 S.Ct., at 290. In Hutto v. Finney, supra, the conditions of confinement in two Arkansas prisons constituted cruel and unusual punishment because they resulted in unquestioned and serious deprivation of basic human needs. Conditions other than those in Gamble and Hutto, alone or in combination, may deprive inmates of the minimal civilized measure of life's necessities. Such conditions could be cruel and unusual under the contemporary standard of decency that we recognized in Gamble, supra, at 103-104, 97 S.Ct., at 290-291. But conditions that cannot be said to be cruel and unusual under contemporary standards are not unconstitutional. To the extent that such conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society.
B
16
In view of the District Court's findings of fact, its conclusion that double celling at SOCF constitutes cruel and unusual punishment is insupportable. Virtually every one of the court's findings tends to refute respondents' claim. The double celling made necessary by the unanticipated increase in prison population did not lead to deprivations of essential food, medical care, or sanitation. Nor did it increase violence among inmates or create other conditions intolerable for prison confinement. 434 F.Supp., at 1018. Although job and educational opportunities diminished marginally as a result of double celling, limited work hours and delay before receiving education do not inflict pain, much less unnecessary and wanton pain; deprivations of this kind simply are not punishments. We would have to wrench the Eighth Amendment from its language and history to hold that delay of these desirable aids to rehabilitation violates the Constitution.
17
The five considerations on which the District Court relied also are insufficient to support its constitutional conclusion. The court relied on the long terms of imprisonment served by inmates at SOCF; the fact that SOCF housed 38% more inmates than its "design capacity"; the recommendation of several studies that each inmate have at least 50-55 square feet of living quarters; the suggestion that double-celled inmates spend most of their time in their cells with their cellmates; and the fact that double celling at SOCF was not a temporary condition. Supra, at 343-344. These general considerations fall far short in themselves or proving cruel and unusual punishment, for there is no evidence that double celling under these circumstances either inflicts unnecessary or wanton pain or is grossly disproportionate to the severity of crimes warranting imprisonment.13 At most, these considerations amount to a theory that double celling inflicts pain.14 Perhaps they reflect an aspiration toward an ideal environment for long-term confinement. But the Constitution does not mandate comfortable prisons, and prisons of SOCF's type, which house persons convicted of serious crimes, cannot be free of discomfort. Thus, these considerations properly are weighed by the legislature and prison administration rather than a court. There being no constitutional violation,15 the District Court had no authority to consider whether double celling in light of these considerations was the best response to the increase in Ohio's statewide prison population.
III
18
This Court must proceed cautiously in making an Eighth Amendment judgment because, unless we reverse it, "[a] decision that a given punishment is impermissible under the Eighth Amendment cannot be reversed short of a constitutional amendment," and thus "[r]evisions cannot be made in the light of further experience." Gregg v. Georgia, 428 U.S., at 176, 96 S.Ct., at 2926. In assessing claims that conditions of confinement are cruel and unusual, courts must bear in mind that their inquiries "spring from constitutional requirements and that judicial answers to them must reflect that fact rather than a court's idea of how best to operate a detention facility." Bell v. Wolfish, 441 U.S., at 539, 99 S.Ct., at 1874.16
19
Courts certainly have a responsibility to scrutinize claims of cruel and unusual confinement, and conditions in a number of prisons, especially older ones, have justly been described as "deplorable" and "sordid." Bell v. Wolfish, supra, at 562, 99 S.Ct., at 1886.17 When conditions of confinement amount to cruel and unusual punishment, "federal courts will discharge their duty to protect constitutional rights." Procunier v. Martinez, 416 U.S. 396, 405-406, 94 S.Ct. 1800, 1807-1808, 40 L.Ed.2d 224 (1974); see Cruz v. Beto, 405 U.S. 319, 321, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972) (per curiam ). In discharging this oversight responsibility, however, courts cannot assume that state legislatures and prison officials are insensitive to the requirements of the Constitution or to the perplexing sociological problems of how best to achieve the goals of the penal function in the criminal justice system: to punish justly, to deter future crime, and to return imprisoned persons to society with an improved change of being useful, law-abiding citizens.
20
In this case, the question before us is whether the conditions of confinement at SOCF are cruel and unusual. As we find that they are not, the judgment of the Court of Appeals is reversed.
21
It is so ordered.
22
Justice BRENNAN, with whom Justice BLACKMUN and Justice STEVENS join, concurring in the judgment.
23
Today's decision reaffirms that "[c]ourts certainly have a responsibility to scrutinize claims of cruel and unusual confinement." Ante, this page. With that I agree. I also agree that the District Court's findings in this case do not support a judgment that the practice of double celling in the Southern Ohio Correctional Facility is in violation of the Eighth Amendment. I write separately, however, to emphasize that today's decision should in no way be construed as a retreat from careful judicial scrutiny of prison conditions, and to discuss the factors courts should consider in undertaking such scrutiny.
24
* Although this Court has never before considered what prison conditions constitute "cruel and unusual punishment" within the meaning of the Eighth Amendment, see ante, at 344-345, such questions have been addressed repeatedly by the lower courts. In fact, individual prisons or entire prison systems in at least 24 States have been declared unconstitutional under the Eighth and Fourteenth Amendments,1 with litigation underway in many others.2 Thus, the lower courts have learned from repeated investigation and bitter experience that judicial intervention is indispensable if constitutional dictates—not to mention considerations of basic humanity—are to be observed in the prisons.
25
No one familiar with litigation in this area could suggest that the courts have been overeager to usurp the task of running prisons, which, as the Court today properly notes, is entrusted in the first instance to the "legislature and prison administration rather than a court." Ante, at 349. And certainly, no one could suppose that the courts have ordered creation of "comfortable prisons," ibid., on the model of country clubs. To the contrary, "the soul-chilling inhumanity of conditions in American prisons has been thrust upon the judicial conscience." Inmates of Suffolk County Jail v. Eisenstadt, 360 F.Supp. 676, 684 (Mass.1973).
26
Judicial opinions in this area do not make pleasant reading.3 For example, in Pugh v. Locke, 406 F.Supp. 318 (MD Ala.1976), aff'd as modified, 559 F.2d 283 (CA5 1977), rev'd in part on other grounds, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978) (per curiam), Chief Judge Frank Johnson described in gruesome detail the conditions then prevailing in the Alabama penal system. The institutions were "horrendously overcrowded,' 406 F.Supp., at 322, to the point where some inmates were forced to sleep on mattresses spread on floors in hallways and next to urinals. Id., at 323. The physical facilities were "dilapidat[ed]" and "filthy," the cells infested with roaches, flies, mosquitoes, and other vermin. Ibid. Sanitation facilities were limited and in ill repair, emitting an overpowering odor"; in one instance over 200 men were forced to share one toilet. Ibid. Inmates were not provided with toothpaste, toothbrush, shampoo, shaving cream, razors, combs, or other such necessities. Ibid. Food was "unappetizing and unwholesome," poorly prepared and often infested with insects, and served without reasonable utensils. Ibid. There were no meaningful vocational, educational, recreational, or work programs. Id., at 326. A United States health officer described the prisons as "wholly unfit for human habitation according to virtually every criterion used for evaluation by public health inspectors." Id., at 323-324. Perhaps the worst of all was the "rampant violence" within the prison. Id., at 325. Weaker inmates were "repeatedly victimized" by the stronger; robbery, rape, extortion, theft, and assault were "everyday occurrences among the general inmate population." Id., at 324. Faced with this record, the court—not surprisingly—found that the conditions of confinement constituted cruel and unusual punishment, and issued a comprehensive remedial order affecting virtually every aspect of prison administration.4
27
Unfortunately, the Alabama example is neither abberational nor anachronistic. Last year, in Ramos v. Lamm, 639 F.2d 559 (1980), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981), for example, the Tenth Circuit declared conditions in the maximum-security unit of the Colorado State Penitentiary at Canon City unconstitutional. The living areas of the prison were "unfit for human habitation," id., at 567; the food unsanitary and "grossly inadequate," id., at 570; the institution "fraught with tension and violence," often leading to injury and death, id., at 572; the health care "blatant[ly] inadequat[e]" and "appalling," id., at 574; and there were various restrictions of prisoners' rights to visitation, mail, and access to courts in violation of basic constitutional rights, id., at 578-585. Similar tales of horror are recounted in dozens of other cases. See, e. g., cases cited in n. 1, supra.
28
Overcrowding and cramped living conditions are particularly pressing problems in many prisons. Out of 82 court orders in effect concerning conditions of confinement in federal and state correctional facilities as of March 31, 1978, 26 involved the issue of overcrowding. 3 American Prisons and Jails 32. Two-thirds of all inmates in federal, state, and local correctional facilities were confined in cells or dormitories providing less than 60 square feet per person—the minimal standard deemed acceptable by the American Public Health Association, the Justice Department, and other authorities.5
29
The problems of administering prisons within constitutional standards are indeed " 'complex and intractable,' "ante, at 351, n. 16, quoting Procunier v. Martinez, 416 U.S. 396, 404, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1974), but at their core is a lack of resources allocated to prisons. Confinement of prisoners is unquestionably an expensive proposition: the average direct current expenditure at adult institutions in 1977 was $5,461 per inmate, 3 American Prisons and Jails 115; the average cost of constructing space for an additional prisoner is estimated at $25,000 to $50,000. Id., at 119. Oftentimes, funding for prisons has been dramatically below that required to comply with basic constitutional standards. For example, to bring the Louisiana prison system into compliance required a supplemental appropriation of $18,431,622 for a single year's operating expenditures, and of $105,605,000 for capital outlays. Williams v. Edwards, 547 F.2d 1206, 1219-1221 (CA5 1977) (Exhibit A).
30
Over the last decade, correctional resources, never ample, have lagged behind burgeoning prison populations. In Ruiz v. Estelle, 503 F.Supp. 1265 (SD Tex.1980), for example, the court stated that an "unprecedented surge" in the number of inmates has "undercut any realistic expectation" of eliminating double and triple celling, despite construction of a new $43 million unit. Id., at 1280-1281. The number of inmates in federal and state correctional facilities has risen 42% since 1975, and last year grew at its fastest rate in three years. Krajick, The Boom Resumes, 7 Corrections Magazine 16-17 (Apr.1981) (report of annual survey of prison populations).6 A major infusion of money would be required merely to keep pace with prison populations.
31
Public apathy and the political powerlessness of inmates have contributed to the pervasive neglect of the prisons. Chief Judge Henley observed that the people of Arkansas "knew little or nothing about their penal system" prior to the Holt litigation, despite "sporadic and sensational" exposes. Holt v. Sarver, 309 F.Supp. 362, 367 (ED Ark.1970). Prison inmates are "voteless, politically unpopular, and socially threatening." Morris, The Snail's Pace of Prison Reform, in Proceedings of the 100th Annual Congress of Correction of the American Correctional Assn. 36, 42 (1970). Thus, the suffering of prisoners, even if known, generally "moves the community in only the most severe and exceptional cases." Ibid. As a result even conscientious prison officials are "[c]aught in the middle," as state legislatures refuse "to spend sufficient tax dollars to bring conditions in outdated prisons up to minimally acceptable standards." Johnson v. Levine, 450 F.Supp. 648, 654 (Md.), aff'd in part, 588 F.2d 1378 (CA4 1978).7 After extensive exposure to this process, Chief Judge Pettine came to view the "barbaric physical conditions" of Rhode Island's prison system as "the ugly and shocking outward manifestations of a deeper dysfunction, an attitude of cynicism, hopelessness, predatory selfishness, and callous indifference that appears to infect, to one degree or another, almost everyone who comes in contact with the [prison]." Palmigiano v. Garrahy, 443 F.Supp. 956, 984 (RI 1977), remanded, 599 F.2d 17 (CA1 1979).
32
Under these circumstances the courts have emerged as a critical force behind efforts to ameliorate inhumane conditions. Insulated as they are from political pressures, and charged with the duty of enforcing the Constitution, courts are in the strongest position to insist that unconstitutional conditions be remedied, even at significant financial cost. Justice BLACKMUN, then serving on the Court of Appeals, set the tone in Jackson v. Bishop, 404 F.2d 571, 580 (CA8 1968): "Humane considerations and constitutional requirements are not, in this day, to be measured or limited by dollar considerations . . . ."
33
Progress toward constitutional conditions of confinement in the Nation's prisons has been slow and uneven, despite judicial pressure. Nevertheless, it is clear that judicial intervention has been responsible, not only for remedying some of the worst abuses by direct order, but also for "forcing the legislative branch of government to reevaluate correction policies and to appropriate funds for upgrading penal systems." 3 American Prisons and Jails 163. A detailed study of four prison conditions cases by the American Bar Association concluded:
34
"The judicial intervention in each of the correctional law cases studied had impact that was broad and substantial. . . . For the most part, the impact of the judicial intervention was clearly beneficial to the institutions, the correctional systems, and the broader community. Dire consequences predicted by some correctional personnel did not accompany the judicial intervention in the cases studied. Inmates were granted greater rights and protections, but the litigation did not undermine staff authority and control. Institutional conditions improved, but facilities were not turned into 'country clubs.' The courts intervened in correctional affairs, but the judges did not take over administration of the facilities." M. Harris & D. Spiller, After Decision: Implementation of Judicial Decrees in Correctional Settings 21 (National Institute of Law Enforcement and Criminal Justice, 1977).
35
Even prison officials have acknowledged that judicial intervention has helped them to obtain support for needed reform. GAO, Comptroller General, Report to Congress: The Department of Justice Can Do More to Help Improve Conditions at State and Local Correctional Facilities 12-13 (GGD-80-77, 1980). The Commissioner of Corrections of New York City, a defendant in many lawsuits challenging jail and prison conditions, has stated: "Federal courts may be the last resort for us. . . . If there's going to be change, I think the federal courts are going to have to force cities and states to spend more money on their prisons. . . . I look on the courts as a friend." Gettinger, "Cruel and Unusual" Prisons, 3 Corrections Magazine 3, 5 (Dec.1977). In a similar vein, the Commissioner of the Minnesota Department of Corrections testified before a congressional Committee that lawsuits brought on behalf of prison inmates
36
"have upgraded correctional institutions and the development of procedural safeguards regarding basic constitutional rights. There is no question in my mind that had such court intervention not taken place, these fundamental improvements would not have occurred.
37
* * * * *
38
"While I do not intend to imply here that I sit expectantly at my desk each week awaiting news of another impending suit, I do recognize that unless my agency consistently deals fairly with those incarcerated in our institutions we will be held judicially accountable." Civil Rights of Institutionalized Persons, Hearings on S. 1393 before the Subcommittee on the Constitution of the Senate Committee on the Judiciary, 95th Cong., 1st Sess., 409-410 (1977) (testimony of Kenneth F. Schoen).8
II
39
The task of the courts in cases challenging prison conditions is to "determine whether a challenged punishment comports with human dignity." Furman v. Georgia, 408 U.S. 238, 282, 92 S.Ct. 2726, 2748, 33 L.Ed.2d 346 (1972) (BRENNAN, J., concurring). Such determinations are necessarily imprecise and indefinite, Trop v. Dulles, 356 U.S. 86, 100-101, 78 S.Ct. 590, 597-598, 2 L.Ed.2d 596 (1958); Wilkerson v. Utah, 99 U.S. 130, 135-136, 25 L.Ed. 345 (1879); they require careful scrutiny of challenged conditions, and application of realistic yet humane standards.
40
In performing this responsibility, this Court and the lower courts have been especially deferential to prison authorities "in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security." Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861, 1878, 60 L.Ed.2d 447 (1979); see also ante, at 351, n. 16; Jones v. North Carolina Prisoners' Labor Union, 433 U.S. 119, 128, 97 S.Ct. 2532, 2539, 53 L.Ed.2d 629 (1977); Cruz v. Beto, 405 U.S. 319, 321, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972). Many conditions of confinement, however, including overcrowding, poor sanitation, and inadequate safety precautions, arise from neglect rather than policy. See supra, at 358-359. There is no reason of comity, judicial restraint, or recognition of expertise for courts to defer to negligent omissions of officials who lack the resources or motivation to operate prisons within limits of decency. Courts must and do recognize the primacy of the legislative and executive authorities in the administration of prisons; however, if the prison authorities do not conform to constitutional minima, the courts are under an obligation to take steps to remedy the violations. Procunier v. Martinez, 416 U.S., at 405, 94 S.Ct., at 1807.9
41
The first aspect of judicial decisionmaking in this area is scrutiny of the actual conditions under challenge. It is important to recognize that various deficiencies in prison conditions "must be considered together." Holt v. Sarver, 309 F.Supp., at 373. The individual conditions "exist in combination; each affects the other; and taken together they [may] have a cumulative impact on the inmates." Ibid. Thus, a court considering an Eighth Amendment challenge to conditions of confinement must examine the totality of the circumstances.10 Even if no single condition of confinement would be unconstitutional in itself, "exposure to the cumulative effect of prison conditions may subject inmates to cruel and unusual punishment." Laaman v. Helgemoe, 437 F.Supp. 269, 322-323 (NH 1977).
42
Moreover, in seeking relevant information about conditions in a prison, the court must be open to evidence and assistance from many sources, including expert testimony and studies on the effect of particular conditions on prisoners. For this purpose, public health, medical, psychiatric, psychological, penological, architectural, structural, and other experts have proved useful to the lower courts in observing and interpreting prison conditions. See, e. g., Palmigiano v. Garrahy, 443 F.Supp., at 960 (commenting that the court's "task was made easier by the extensive assistance of experts").11
43
More elusive, perhaps, is the second aspect of the judicial inquiry: application of realistic yet humane standards to the conditions as observed. Courts have expressed these standards in various ways, see, e. g., M. C. I. Concord Advisory Bd. v. Hall, 447 F.Supp. 398, 404 (Mass.1978) ("contemporary standards of decency"); Palmigiano v. Garrahy, supra, at 979 (conditions so bad as to "shock the conscience of any reasonable citizen"); Estelle v. Gamble, 429 U.S. 97, 102, 97 S.Ct. 285, 290, 50 L.Ed.2d 251 (1976) " 'broad and idealistic concepts of dignity, civilized standards, humanity, and decency,' " quoting Jackson v. Bishop, 404 F. 2d, at 579). Each of these descriptions has its merit, but in the end, the court attempting to apply them is left to rely upon its own experience and on its knowledge of contemporary standards.12 Coker v. Georgia, 433 U.S. 584, 597, 97 S.Ct. 2861, 2868, 53 L.Ed.2d 982 (1977) (plurality opinion).
44
In determining when prison conditions pass beyond legitimate punishment and become cruel and unusual, the "touchstone is the effect upon the imprisoned." Laaman v. Helgemoe, 437 F.Supp., at 323. The court must examine the effect upon inmates of the condition of the physical plant (lighting, heat, plumbing, ventilation, living space, noise levels, recreation space); sanitation (control of vermin and insects, food preparation, medical facilities, lavatories and showers, clean places for eating, sleeping, and working); safety (protection from violent, deranged, or diseased inmates, fire protection, emergency evacuation); inmate needs and services (clothing, nutrition, bedding, medical, dental, and mental health care, visitation time, exercise and recreation, educational and rehabilitative programming); and staffing (trained and adequate guards and other staff, avoidance of placing inmates in positions of authority over other inmates). See ibid.; Ramos v. Lamm, 639 F.2d, at 567-581. When "the cumulative impact of the conditions of incarceration threatens the physical, mental, and emotional health and well-being of the inmates and/or creates a probability of recidivism and future incarceration," the court must conclude that the conditions violate the Constitution. Laaman v. Helgemoe, supra, at 323.
III
45
A reviewing court is generally limited in its perception of a case to the findings of the trial court. I have not seen the Southern Ohio Correctional Facility at Lucasville, nor have I directly heard evidence concerning conditions there. From the District Court opinion, I know that the prison is a modern, "top-flight, first-class facility," built in the early 1970's at a cost of some $32 million, 434 F.Supp. 1007, 1009 (SD Ohio 1977). Chief Judge Hogan, who toured the facility, described it as "not lacking in color," and, "generally speaking, . . . quite light and . . . airy, etc." Id., at 1011. The cells are reasonably well furnished, with one cabinet-type night stand, one wall cabinet, one wall shelf, one wall-mounted lavatory with hot and cold running water and steel mirror, one china commode flushed from inside the cell, one wall-mounted radio, one heating and air circulation vent, one lighting fixture, and one bed or bunkbed. Id., at 1011-1012. Prisoners in each cellblock have frequent access to a dayroom, which is "in a sense part of the cells," and is "designed to furnish that type of recreation or occupation which an ordinary citizen would seek in his living room or den." Id., at 1012. Food is "adequate in every respect," and the kitchens and dining rooms are clean. Id., at 1014. Prisoners are all permitted contact visitation. Ibid. The ratio of inmates to guards is 'well within the acceptable ratio," and incidents of violence, while not uncommon, have not increased out of proportion to inmate population. Id., at 1014-1015, 1016-1018. Plumbing and lighting are adequate. Id., at 1015. The prison has a modern, well-stocked library, with an adequate law library. Id., at 1010, and n. 2. It has eight schoolrooms, two chapels, a commissary, a barbershop, dining rooms, kitchens, and workshops. Ibid. Virtually the only serious complaint of the inmates at the Southern Ohio Correctional Facility is that 1,280 of the 1,620 cells are used to house two inmates.
46
I have not the slightest doubt that 63 square feet of cell space is not enough for two men. I understand that every major study of living space in prisons has so concluded. See id., at 1021; see also n. 5, supra; post, at 371-372, and n. 4 (MARSHALL, J., dissenting). That prisoners are housed under such conditions is an unmistakable signal to the legislators and officials of Ohio: either more prison facilities should be built or expanded, or fewer persons should be incarcerated in prisons. Even so, the findings of the District Court do not support a conclusion that the conditions at the Southern Ohio Correctional Facility—cramped though they are—constitute cruel and unusual punishment. See Hite v. Leeke, 564 F.2d 670, 673-674 (CA4 1977); M. C. I. Concord Advisory Bd. v. Hall, 447 F.Supp., at 404-405.13
47
The "touchstone" of the Eighth Amendment inquiry is " 'the effect upon the imprisoned.' " Supra, at 364, quoting Laaman v. Helgemoe, 437 F.Supp., at 323. The findings of the District Court leave no doubt that the prisoners are adequately sheltered, fed, and protected, and that opportunities for education, work, and rehabilitative assistance are available.14 One need only compare the District Court's description of conditions at the Southern Ohio Correctional Facility with descriptions of other major state and federal facilities, see supra, at 354-356, to realize that this prison, crowded though it is, is one of the better, more humane large prisons in the Nation.15
48
The consequence of the District Court's order might well be to make life worse for many Ohio inmates, at least in the short run. As a result of the order, some prisoners have been transferred to the Columbus Correctional Facility, a deteriorating prison nearly 150 years old, itself the subject of litigation over conditions of confinement and under a preliminary order enjoining racially segregative and punitive practices. See Stewart v. Rhodes, 473 F.Supp. 1185 (SD Ohio 1979).
49
The District Court may well be correct in the abstract that prison overcrowding and double celling such as existed at the Southern Ohio Correctional Facility generally results in serious harm to the inmates. But cases are not decided in the abstract. A court is under the obligation to examine the actual effect of challenged conditions upon the well-being of the prisoners.16 The District Court in this case was unable to identify any actual signs that the double celling at the Southern Ohio Correctional Facility has seriously harmed the inmates there;17 indeed, the court's findings of fact suggest that crowding at the prison has not reached the point of causing serious injury. Since I cannot conclude that the totality of conditions at the facility offends constitutional norms, and am of the view that double celling in itself is not per se impermissible, I concur in the judgment of the Court.
50
Justice BLACKMUN, concurring in the judgment.
51
Despite the perhaps technically correct observation, ante, at 344-345, that the Court is "consider[ing] here for the first time the limitation that the Eighth Amendment . . . imposes upon the conditions in which a State may confine those convicted of crimes," it obviously is not writing upon a clean slate. See Hutto v. Finney, 437 U.S. 678, 685-688, 98 S.Ct. 2565, 2570-2572, 57 L.Ed.2d 522 (1978); cf. Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). Already, concerns about prison conditions and their constitutional significance have been expressed by the Court.
52
Jackson v. Bishop, 404 F.2d 571 (CA8 1968), cited by both Justice BRENNAN, and by Justice MARSHALL in dissent here, was, I believe, one of the first cases in which a federal court examined state penitentiary practices and held them to be violative of the Eighth Amendment's proscription of "cruel and unusual punishments." I sat on that appeal, and I was privileged to write the opinion for a unanimous panel of the court. My voting in at least one prison case since then further discloses my concern about the conditions that sometimes are imposed upon confined human beings. See, e. g., United States v. Bailey, 444 U.S. 394, 419, 424, 100 S.Ct. 624, 639, 641, 62 L.Ed.2d 575 (1980) (dissenting opinion).
53
I perceive, as Justice BRENNAN obviously does in view of his separate writing, a possibility that the Court's opinion in this case today might be regarded, because of some of its language, as a signal to prison administrators that the federal courts now are to adopt a policy of general deference to such administrators and to state legislatures, deference not only for the purpose of determining contemporary standards of decency, ante, at 346, but for the purpose of determining whether conditions at a particular prison are cruel and unusual within the meaning of the Eighth Amendment, ante, at 349-352. That perhaps was the old attitude prevalent several decades ago. I join Justice BRENNAN's opinion because I, too, feel that the federal courts must continue to be available to those state inmates who sincerely claim that the conditions to which they are subjected are violative of the Amendment. The Court properly points out in its opinion, ante, at 347, that incarceration necessarily, and constitutionally, entails restrictions, discomforts, and a loss of privileges that complete freedom affords. But incarceration is not an open door for unconstitutional cruelty or neglect. Against that kind of penal condition, the Constitution and the federal courts, it is to be hoped, together remain as an available bastion.
54
Justice MARSHALL, dissenting.
55
From reading the Court's opinion in this case, one would surely conclude that the Southern Ohio Correctional Facility (SOCF) is a safe, spacious prison that happens to include many two-inmate cells because the State has determined that that is the best way to run the prison. But the facility described by the majority is not the one involved in this case. SOCF is overcrowded, unhealthful, and dangerous. None of those conditions results from a considered policy judgment on the part of the State. Until the Court's opinion today, absolutely no one certainly not the "state legislatures" or "prison officials" to whom the majority suggests, see ante, at 352, that we defer in analyzing constitutional questions—had suggested that forcing long-term inmates to share tiny cells designed to hold only one individual might be a good thing. On the contrary, as the District Court noted, "everybody" is in agreement that double celling is undesirable.1 No one argued at trial and no one has contended here that double celling was a legislative policy judgment. No one has asserted that prison officials imposed it as a disciplinary or a security matter. And no one has claimed that the practice has anything whatsoever to do with "punish[ing] justly," "deter[ring] future crime," or "return[ing] imprisoned persons to society with an improved chance of being useful law-abiding citizens." See ante, at 352. The evidence and the District Court's findings clearly demonstrate that the only reason double celling was imposed on inmates at SOCF was that more individuals were sent there than the prison was ever designed to hold.2
56
I do not dispute that the state legislature indeed made policy judgments when it built SOCF. It decided that Ohio needed a maximum-security prison that would house some 1,600 inmates. In keeping with prevailing expert opinion, the legislature made the further judgments that each inmate would have his own cell and that each cell would have approximately 63 square feet of floor space. But because of prison overcrowding, hundreds of the cells are shared, or "doubled," which is hardly what the legislature intended.
57
In a doubled cell, each inmate has only some 30-35 square feet of floor space.3 Most of the windows in the Supreme Court building are larger than that. The conclusion of every expert who testified at trial and of every serious study of which I am aware is that a long-term inmate must have to himself, at the very least, 50 square feet of floor space—an area smaller than that occupied by a good-sized automobile—in order to avoid serious mental, emotional, and physical deterioration.4 The District Court found that as a fact. 434 F.Supp. 1007, 1020-1021 (SD Ohio 1977). Even petitioners, in their brief in this Court, concede that double celling as practiced at SOCF is "less than desirable." Brief for Petitioners 17.
58
The Eighth Amendment "embodies 'broad and idealistic concepts of dignity, civilized standards, humanity and decency,' " against which conditions of confinement must be judged. Estelle v. Gamble, 429 U.S. 97, 102, 97 S.Ct. 285, 290, 50 L.Ed.2d 251 (1976), quoting Jackson v. Bishop, 404 F.2d 571, 579 (CA8 1968). Thus the State cannot impose punishment that violates "the evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 596 (1958) (plurality opinion). For me, the legislative judgment and the consistent conclusions by those who have studied the problem provide considerable evidence that those standards condemn imprisonment in conditions so crowded that serious harm will result. The record amply demonstrates that those conditions are present here. It is surely not disputed that SOCF is severely overcrowded. The prison is operating at 38% above its design capacity.5 It is also significant that some two-thirds of the inmates at SOCF are serving lengthy or life sentences, for, as we have said elsewhere, "the length of confinement cannot be ignored in deciding whether the confinement meets constitutional standards." Hutto v. Finney, 437 U.S. 678, 686, 98 S.Ct. 2565, 2571, 57 L.Ed.2d 522 (1978). Nor is double-celling a short-term response to a temporary problem. The trial court found, and it is not contested, that double-celling, if not enjoined, will continue for the foreseeable future. The trial court also found that most of the double-celled inmates spend most of their time in their cells.6
59
It is simply not true, as the majority asserts, that "there is no evidence that double-celling under these circumstances either inflicts unnecessary or wanton pain or is grossly disproportionate to the severity of crimes warranting imprisonment." Ante, at 348. The District Court concluded from the record before it that long exposure to these conditions will "necessarily " involve "excess limitation of general movement as well as physical and mental injury . . . ." 434 F.Supp., at 1020 (emphasis added).7 And of course, of all the judges who have been involved in this case, the trial judge is the only one who has actually visited the prison. That is simply an additional reason to give in this case the deference we have always accorded to the careful conclusions of the finder of fact. There is not a shred of evidence to suggest that anyone who has given the matter serious thought has ever approved, as the majority does today, conditions of confinement such as those present at SOCF. I see no reason to set aside the concurrent conclusions of two courts that the overcrowding and double celling here in issue are sufficiently severe that they will, if left unchecked, cause deterioration in respondents' mental and physical health. These conditions in my view go well beyond contemporary standards of decency and therefore violate the Eighth and Fourteenth Amendments. I would affirm the judgment of the Court of Appeals.
60
If the majority did no more than state its disagreement with the courts below over the proper reading of the record, I would end my opinion here. But the Court goes further, adding some unfortunate dicta that may be read as a warning to federal courts against interference with a State's operation of its prisons. If taken too literally, the majority's admonitions might eviscerate the federal courts' traditional role of preventing a State from imposing cruel and unusual punishment through its conditions of confinement.
61
The majority concedes that federal courts "certainly have a responsibility to scrutinize claims of cruel and unusual confinement," ante, at 352, but adds an apparent caveat:
62
"In discharging this oversight responsibility, however, courts cannot assume that state legislatures and prison officials are insensitive to the requirements of the Constitution or to the perplexing sociological problems of how best to achieve the goals of the penal function in the criminal justice system: to punish justly, to deter future crime, and to return imprisoned persons to society with an improved chance of being useful, law-abiding citizens." Ibid.
63
As I suggested at the outset, none of this has anything to do with this case, because no one contends that the State had those goals in mind when it permitted SOCF to become overcrowded. This dictum, moreover, takes far too limited a view of the proper role of a federal court in an Eighth Amendment proceeding and, I add with some regret, far too sanguine a view of the motivations of state legislators and prison officials. Too often, state governments truly are "insensitive to the requirements of the Eighth Amendment," as is evidenced by the repeated need for federal intervention to protect the rights of inmates. See, e. g., Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978) (lengthy periods of punitive isolation); Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (failure to treat inmate's medical needs); Battle v. Anderson, 564 F.2d 388 (CA10 1977) (severe overcrowding); Gates v. Collier, 501 F.2d 1291 (CA5 1974) (overcrowding and poor housing conditions); Holt v. Sarver, 442 F.2d 304 (CA8 1971) (unsafe conditions and inmate abuse); Pugh v. Locke, 406 F.Supp. 318 (MD Ala.1976) (constant fear of violence and physical harm), aff'd, 559 F.2d 283 (CA5 1977), rev'd in part on other grounds, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978) (per curiam ). See also ante, at 353-361 (BRENNAN, J., concurring in judgment).8
64
A society must punish those who transgress its rules. When the offense is severe, the punishment should be of proportionate severity. But the punishment must always be administered within the limitations set down by the Constitution. With the rising crime rates of recent years, there has been an alarming tendency toward a simplistic penological philosophy that if we lock the prison doors and throw away the keys, our streets will somehow be safe. In the current climate, it is unrealistic to expect legislators to care whether the prisons are overcrowded or harmful to inmate health. It is at that point—when conditions are deplorable and the political process offers no redress—that the federal courts are required by the Constitution to play a role. I believe that this vital duty was properly discharged by the District Court and the Court of Appeals in this case. The majority today takes a step toward abandoning that role altogether. I dissent.
1
As a result of the judgment in respondents' favor, double celling has been substantially eliminated at SOCF. But the increases in Ohio's state-wide prison population, which prompted double celling at SOCF, have continued. Furthermore, because SOCF is Ohio's only maximum-security prison, the transfer of some of SOCF's inmates into lesser security prisons has created special problems for the recipient prisons. Tr. of Oral Arg. 5-6. Thus, petitioners have an interest in resuming double celling at SOCF. See Bell v. Wolfish, 441 U.S. 520, 542-543, n. 25, 99 S.Ct. 1861, 1876, n. 25, 60 L.Ed.2d 447 (1979).
2
SOCF's library contains 25,000 volumes, including lawbooks, and was described by the District Court as "modern, well-lit," and "superior in quality and quantity." 434 F.Supp., at 1010. The court described SOCF's classrooms as "light, airy, and well equipped." Id., at 1015. The court did not describe SOCF's workshops except to identify them as a laundry, machine shop, shoe factory, sheet metal shop, printshop, sign shop, and engine-repair shop. See id., at 1010.
3
Inmates who requested protective custody but could not substantiate their fears were classified as "limited activity" and were locked in their cells all but six hours a week. Inmates classified as "voluntarily idle" and newly arrived inmates awaiting classification had only four hours a week outside their cells. Inmates housed in administrative isolation for disciplinary reasons were allowed out of their cells for two hours a week to attend religious services, a movie, or the commissary.
4
The court noted that SOCF is one of the few maximum-security prisons in the country to permit contact visitation for all inmates. Id., at 1014.
5
The court found that adequate lawbooks were available, even to inmates in protective or disciplinary confinement, to allow effective access to court. As to school, no inmate who was "ready, able, and willing to receive schooling has been denied the opportunity," although there was some delay before an inmate received the opportunity to attend. Id., at 1015.
6
Turnover in the dental staff had caused a temporary but substantial backlog of inmates needing routine dental care, but the dental staff treated emergencies. Id., at 1016.
7
The District Court cited, e. g., American Correctional Assn., Manual of Standards for Adult Correctional Institutions, Standard No. 4142, p. 27 (1977) (60-80 square feet); National Sheriffs' Assn., A Handbook on Jail Architecture 63 (1975) (70-80 square feet); National Council on Crime and Delinquency, Model Act for the Protection of Rights of Prisoners, § 1, 18 Crime & Delinquency 4, 10 (1972) (50 square feet).
8
The basis of the District Court's assertion to the amount of time that inmates spend in their cells does not appear in the court's opinion. Elsewhere in its opinion, the court found that 75% of the double-celled inmates at SOCF are free to be out of their cells from 6:30 a. m. to 9 p. m. 434 F.Supp., at 1012, 1013. The court stated that it made this finding on the basis of prison regulations on inmate classification, which petitioners submitted as exhibits. Id., at 1012.
9
Rather than order that petitioners either move respondents into single cells or release them, as respondents urged, the District Court initially ordered petitioners to "proceed with reasonable dispatch to formulate, propose, and carry out some plan which will terminate double celling at SOCF." Id., at 1022. Petitioners submitted five plans, each of which the court rejected. It then ordered petitioners to reduce the inmate population at SOCF by 25 men per month until the population fell to the prison's approximate design capacity of 1,700. App. to Pet. for Cert. A-39.
10
The Court of Appeals stated its conclusion in a two-paragraph order of affirmance that it filed but did not publish. See 624 F.2d 1099 (1980).
11
In Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978), the state prison administrators did not dispute the District Court's conclusion that the conditions in two Arkansas prisons constituted cruel and unusual punishment. Id., at 685, 98 S.Ct., at 1420. In Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977), the question was whether corporal punishment in a public school constituted cruel and unusual punishment. We held that the Eighth and Fourteenth Amendments do not apply to public school disciplinary practices. In considering the differences between a prisoner and a schoolchild, we stated: "Prison brutality . . . is 'part of the total punishment to which the individual is being subjected for his crime and, as such, is a proper subject for Eighth Amendment scrutiny.' " Id., at 669, 97 S.Ct., at 1411, quoting Ingraham v. Wright, 525 F.2d 909, 915 (CA5 1976).
12
The Eighth Amendment also imposes a substantive limit on what can be made criminal and punished as such. Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). This aspect of the Eighth Amendment is not involved in this case.
13
Respondents and the District Court erred in assuming that opinions of experts as to desirable prison conditions suffice to establish contemporary standards of decency. As we noted in Bell v. Wolfish, 441 U.S., at 543-544, n. 27, 99 S.Ct. 1861, 1876, n. 27, 60 L.Ed.2d 447, such opinions may be helpful and relevant with respect to some questions, but "they simply do not establish the constitutional minima; rather, they establish goals recommended by the organization in question." See U.S. Dept. of Justice, Federal Standards for Prisons and Jails 1 (1980). Indeed, generalized opinions of experts cannot weigh as heavily in determining contemporary standards of decency as "the public attitude toward a given sanction." Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976) (joint opinion). We could agree that double celling is not desirable, especially in view of the size of these cells. But there is no evidence in this case that double celling is viewed generally as violating decency. Moreover, though small, the cells in SOCF are exceptionally modern and functional; they are heated and ventilated and have hot and cold running water and a sanitary toilet. Each cell also has a radio. 434 F.Supp., at 1011.
14
Respondents contend that the close confinement of double celling for long periods creates a dangerous potential for frustration, tension, and violence. In respondents' view, it would be an infliction of unnecessary and wanton pain if double celling led to rioting. The danger of prison riots is a serious concern, shared by the public as well as by prison authorities and inmates. But respondents' contention does not lead to the conclusion that double celling at SOCF is cruel and unusual, whatever may be the situation in a different case. The District Court's findings of fact lend no support to respondents' claim in this case. Moreover, a prison's internal security is peculiarly a matter normally left to the discretion of prison administrators. See Bell v. Wolfish, supra, at 551, and n. 32, 99 S.Ct., at 1880, and n. 32; Jones v. North Carolina Prisoners' Labor Union, 433 U.S. 119, 132-133, 97 S.Ct. 2532, 2541, 53 L.Ed.2d 629 (1977); Pell v. Procunier, 417 U.S. 817, 827, 94 S.Ct. 2800, 2806, 41 L.Ed.2d 495 (1974).
15
The dissenting opinion states that "the facility described by [the Court] is not the one involved in this case." Post, at 369-370. The incorrectness of this statement is apparent from an examination of the facts set forth at length above, see supra, at 340-343, and nn. 2-6, and the District Court's detailed findings of fact. See 434 F.Supp., at 1009-1018.
In several instances, the dissent selectively relies on testimony without acknowledging that the District Court gave it little or no weight. For example, the dissent emphasizes the testimony of experts as to psychological problems that "may be expected" from double celling; it also
relies on similar testimony as to an increase in tension and aggression. Id., at 1017. The dissent fails to mention, however, that the District Court also referred to testimony by the prison superintendent and physician that "there has been no increase [in violence] other than what one would expect from increased numbers [of inmates]." Id., at 1018. More telling is the fact—ignored by the dissent—that the District Court resolved this conflict in the testimony by holding "that there had been no increase in violence or criminal activity increase due to double celling; there has been [an increase] due to increased population." Ibid. This holding was based on uncontroverted prison records, required to be maintained by the Ohio Department of Corrections and described by the District Court as being "detail[ed] and bespeak[ing] credibility." Ibid.
There is some ambiguity in the opinion of the District Court concerning the amount of time that double-celled inmates were required to remain in their cells. The dissent, post, at 373, n. 6, relies only on selective findings that most inmates are out of their cells only 10 hours each day, and that others are out only 4-6 hours a week. 434 F.Supp., at 1013. The dissent fails to note that the first of these findings if flatly inconsistent with a prior, twice-repeated, finding by the court that inmates "have to be locked in the cell with their cellmate only from around 9:00 p. m. to 6:30 a. m.," id., at 1013, 1012, leaving them free to move about for some 14 hours. Moreover, it is unquestioned—and also not mentioned by the dissent—that the inmates who spend most of their time locked in their cells are those who have a "restrictive classification." These include inmates found guilty of "rule infractions [after] a plenary hearing" and inmates who "are there by 'choice' (at least to some degree)." Ibid. It must be remembered that SOCF is a maximum-security prison, housing only persons guilty of violent and other serious crimes. It is essential to maintain a regime of close supervision and discipline.
The dissent also makes much of the fact that SOCF was housing 38% more inmates at the time of trial than its "rated capacity." According to the United States Bureau of Prisons, at least three factors influence prison population: the number of arrests, prosecution policies, and sentencing and parole decisions. Because these factors can change rapidly, while prisons require years to plan and build, it is extremely difficult to calibrate a prison's "rated" or "design capacity" with predictions of prison population. Memorandum of United States as Amicus Curiae 3, 6. The question before us is not whether the designer of SOCF guessed incorrectly about future prison population, but whether the actual conditions of confinement at SOCF are cruel and unusual.
16
We have sketched before the magnitude of the problems of prison administration. Procunier v. Martinez, 416 U.S. 396, 404-405, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1974). See generally National Institute of Justice, American Prisons and Jails (1980) (5 vols.). It suffices here to repeat:
"[T]he problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree. Most require expertise, comprehensive planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. For all of those reasons, courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform. Judicial recognition of that fact reflects no more than a healthy sense of realism." Procunier v. Martinez, supra, at 404-405, 94 S.Ct., at 1807 (footnote omitted).
See also Wolff v. McDonnell, 418 U.S. 539, 561-562, 568, 94 S.Ct. 2963, 2977, 2980, 41 L.Ed.2d 935 (1974); Jones v. North Carolina Prisoners' Labor Union, supra, at 125, 97 S.Ct., at 2537.
Since our decision in Martinez, the problems of prison population and administration have been exacerbated by the increase of serious crime and the effect of inflation on the resources of States and communities. This case is illustrative. Ohio designed and built SOCF in the early 1970's, and even at the time of trial it was found to be a modern "top-flight, first-class facility." Supra, at 341. Yet, an unanticipated increase in the State's prison population compelled the double celling that is at issue.
17
Examples of recent federal-court decisions holding prison conditions to be violative of the Eighth and Fourteenth Amendments include Ramos v. Lamm, 639 F.2d 559 (CA10 1980), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981); Williams v. Edwards, 547 F.2d 1206 (CA5 1977); Gates v. Collier, 501 F.2d 1291 (CA5 1974); Pugh v. Locke, 406 F.Supp. 318 (MD Ala.1976), aff'd as modified, 559 F.2d 283 (CA5 1977), rev'd in part on other grounds, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978) (per curiam ).
1
Among the States in which prisons or prison systems have been placed under court order because of conditions of confinement challenged under the Eighth and Fourteenth Amendments are: Alabama, see Pugh v. Locke, 406 F.Supp. 318 (MD Ala.1976), aff'd as modified, 559 F.2d 283 (CA 5 1977), rev'd in part on other grounds, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978) (per curiam); Arizona, see Harris v. Cardwell, No. CIV-75-185-PHX-CAM (DC Ariz., Oct. 14, 1980) (consent decree); Arkansas, see Finney v. Mabry, 458 F.Supp. 720 (ED Ark. 1978) (consent decree); Colorado, see Ramos v. Lamm, 639 F.2d 559 (CA10 1980), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981); Delaware, see Anderson v. Redman, 429 F.Supp. 1105 (Del.1977); Florida, see Costello v. Wainwright, 397 F.Supp. 20 (MD Fla.1975), aff'd, 525 F.2d 1239 (CA5), vacated on rehearing on other grounds, 539 F.2d 547 (CA5 1976) (en banc), rev'd, 430 U.S. 325, 97 S.Ct. 1191, 51 L.Ed.2d 372, aff'd on remand, 553 F.2d 506 (CA5 1977) (en banc) (per curiam); Georgia, see Guthrie v. Caldwell, No. 3068 (SD Ga., Dec. 1, 1978) (consent decree); Illinois, see Lightfoot v. Walker, 486 F.Supp. 504 (SD Ill.1980); Iowa, see Watson v. Ray, 90 F.R.D. 143 (SD Iowa 1981); Kentucky, see Kendrick v. Bland, No. 76-0079-P (WD Ky., Oct. 24, 1980) (consent decree); Louisiana, see Williams v. Edwards, 547 F.2d 1206 (CA5 1977); Maryland, see Johnson v. Levine, 450 F.Supp. 648 (1978), aff'd in part, 588 F.2d 1378 (CA4 1978), and Nelson v. Collins, 455 F.Supp. 727 (Md.), aff'd in part, 588 F.2d 1378 (CA4 1978); Mississippi, see Gates v. Collier, 501 F.2d 1291 (CA5 1974); Missouri, see Burks v. Teasdale, 603 F.2d 59 (CA8 1979); New Hampshire, see Laaman v. Helgemoe, 437 F.Supp. 269 (NH 1977); New Mexico, see Duran v. Apodaca, No. Civil 77-721-C (DC NM, July 17, 1980) (consent decree); New York, see Todaro v. Ward, 565 F.2d 48 (CA2 1977); Ohio, see (in addition to this case) Stewart v. Rhodes, 473 F.Supp. 1185 (ED Ohio 1979); Oklahoma, see Battle v. Anderson, 564 F.2d 388 (CA10 1977); Oregon, see Capps v. Atiyeh, 495 F.Supp. 802 (Ore.1980); Pennsylvania, see Hendrick v. Jackson, 10 Pa.Cmwlth. 392, 309 A.2d 187 (1973); Rhode Island, see Palmigiano v. Garrahy, 443 F.Supp. 956 (RI 1977), remanded, 599 F.2d 17 (CA1 1979); Tennessee, see Trigg v. Blanton, No. A-6047 (Ch. Ct., Davidson Cty., Aug. 23, 1978), vacated (Tenn.App., May 1, 1980) (for consideration of changes in conditions), appeal pending (Tenn.Sup.Ct.); Texas, see Ruiz v. Estelle, 503 F.Supp. 1265 (SD Tex.1980). See also Feliciano v. Barcelo, 497 F.Supp. 14 (PR 1979); Barnes v. Government of Virgin Islands, 415 F.Supp. 1218 (V.I. 1976).
2
There are over 8,000 pending cases filed by inmates challenging prison conditions. 3 National Institute of Justice, American Prisons and Jails 34 (1980) (hereafter American Prisons and Jails).
3
It behooves us to remember that
"it is impossible for a written opinion to convey the pernicious conditions and the pain and degradation which ordinary inmates suffer within [unconstitutionally operated prisons]—the gruesome experiences of youthful first offenders forcibly raped; the cruel and justifiable fears of inmates, wondering when they will be called upon to defend the next violent assault; the sheer misery, the discomfort, the wholesale loss of privacy for prisoners housed with one, two, or three others in a forty-five foot cell or suffocatingly packed together in a crowded dormitory; the physical suffering and wretched psychological stress which must be endured by those sick or injured who cannot obtain medical care . . . .
"For those who are incarcerated within [such prisons], these conditions and experiences form the content and essence of daily existence." Ruiz v. Estelle, supra, at 1391.
4
This Court has upheld the exercise of wide discretion by trial courts to correct conditions of confinement found to be unconstitutional. Hutto v. Finney, 437 U.S. 678, 687-688, 98 S.Ct. 2565, 2571-2572, 57 L.Ed.2d 522 (1978).
5
See American Public Health Assn., Standards for Health Services in Correctional Institutions 62 (1976); U.S. Dept. of Justice, Federal Standards for Prisons and Jails, Standard No. 2.04, p. 17 (1980); see generally 3 American Prisons and Jails 39-50, 85, n. 6.
6
Among the causes of the rising number of prison inmates are increasing population, increasing crime rates, stiffer sentencing provisions, and more restrictive parole practices. See Krajick, The Boom Resumes, 7 Corrections Magazine 16-17 (Apr.1981); 3 National Institute of Law Enforcement and Criminal Justice, The National Manpower Survey of the Criminal Justice System, Vol. III, at 13-14 (1978).
7
Moreover, part of the problem in some instances is the attitude of politicians and officials. Of course, the courts should not "assume that state legislatures and prison officials are insensitive to the requirements of the Constitution," ante, at 352 (emphasis added), but sad experience has shown that sometimes they can in fact be insensitive to such requirements. See Civil Rights of the Institutionalized, Hearings on S. 10 before the Subcommittee on the Constitution of the Senate Committee on the Judiciary, 96th Cong., 1st Sess., 28 (1979) (testimony of Assistant Attorney General Drew Days); Palmigiano v. Garrahy, 448 F.Supp. 659, 671 (RI 1978) (prison officials failed to implement court order for reasons unrelated to ability to comply). William G. Nagel, a New Jersey corrections official for 11 years and now a frequent expert witness in prison litigation, testified in 1977 that, in every one of the 17 lawsuits in which he had participated, the government officials worked in a "systematic way" to "impede the fulfillment of constitutionality within our institutions." Civil Rights of Institutionalized Persons, Hearing on S. 1393 before the Subcommittee on the Constitution of the Senate Committee on the Judiciary, 95th Cong., 1st Sess., 772 (1977). He stated that he had "learned through experience that most States resist correcting their unconstitutional conditions or operations until pressed to do so by threat of a suit or by directive from the judiciary." Id., at 779. Indeed, this Court recognized the problem of obstructionist official behavior when it affirmed an award of attorney's fees against Arkansas prison officials who had failed to comply with a court order, on the ground that the litigation had been conducted in bad faith. Hutto v. Finney, 437 U.S., at 689-693, 98 S.Ct., at 2572-2574.
8
After extensive hearings concerning the effect of court litigation on the correction of unconstitutional conditions in state-operated institutions, Congress emphatically endorsed the role of the courts in the area, by passing the Civil Rights of Institutionalized Persons Act, Pub.L. 96-247, 94 Stat. 349, 42 U.S.C. § 1997 et seq. (1976 ed., Supp.IV), which authorized the Attorney General to bring suits in federal court on behalf of persons institutionalized by the United States under unconstitutional conditions. The Conference Committee noted that, as a result of litigation in which the Justice Department had participated, "conditions have improved significantly in dozens of institutions across the Nation: . . . barbaric treatment of adult and juvenile prisoners has been curbed; . . . and States facing the prospect of suit by the Attorney General have voluntarily upgraded conditions in their institutions . . . to comply with previously announced constitutional standards." H.R.Conf.Rep. No. 96-897, p. 9 (1980), U.S.Code Cong. & Admin.News 1980, pp. 787, 833.
9
See also Cruz v. Beto, 405 U.S. 319, 321, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972):
"Federal courts sit not to supervise prisons but to enforce the constitutional rights of all 'persons,' including prisoners. We are not unmindful that prison officials must be accorded latitude in the administration of prison affairs, and that prisoners necessarily are subject to appropriate rules and regulations. But persons in prison, like other individuals, have the right to petition the Government for redress of grievances which, of course, includes 'access of prisoners to the courts for the purpose of presenting their complaints.' "
10
The Court today adopts the totality-of-the-circumstances test. See ante, at 347 (Prison conditions "alone or in combination, may deprive inmates of the minimal civilized measure of life's necessities") (emphasis added). See also Hutto v. Finney, 437 U.S., at 687, 98 S.Ct., at 2571 ("We find no error in the court's conclusion that, taken as a whole, conditions in the isolation cells continued to violate the prohibition against cruel and unusual punishment") (emphasis added).
11
I do not understand the Court's opinion to disparage use of experts to assist the courts in these functions. Indeed, the Court acknowledges that expert opinion may be "helpful and relevant" in some circumstances. Ante, at 348, n. 13.
12
Again, the assistance of experts can be of great value to courts when evaluating standards for confinement. Although expert testimony alone does not "suffice to establish contemporary standards of decency," ibid., such testimony can help the courts to understand the prevailing norms against which conditions in a particular prison may be evaluated. In this connection, the work of standard-setting organizations such as the Department of Justice, the American Public Health Association, the Commission on Accreditation for Corrections, and the National Sheriffs' Association is particularly valuable.
13
The District Court rested its judgment on five considerations: (1) the long-term confinement of the prisoners, (2) the rated capacity of the prison, (3) expert opinion concerning living-space requirements, (4) time spent in the cells, and (5) the permanent character of the double celling. 434 F.Supp. 1007, 1020-1021 (SD Ohio 1977). This led the Court of Appeals to conclude that the District Court had not ruled the practice of double celling "unconstitutional under all circumstances." App. to Pet. for Cert. A-2. The five considerations cited by the District Court, in my view, are not separate aspects of conditions at the prison; rather, they merely embroider upon the theme that double celling is unconstitutional in itself.
14
The overcrowding in the cells is mitigated considerably by the freedom of most prisoners to spend time away from their cells, especially in the dayrooms. The inhabitants of 960 of the double-occupant cells were out of the cells some 10 hours a day at school, work, or other activities. 434 F.Supp., at 1013. Of the remainder, all of whom spent six or fewer hours a week out of the cells, some were on short-term "receiving" status, some on semiprotected status by choice, and some on 'idle" status by choice. Ibid. The remainder were in administrative isolation because of infractions of the rules, determined after a plenary hearing. Ibid.
During trial in this case, and before final judgment by the District Court, the prison implemented a plan limiting double celling to those inmates free to move about the facility 15 hours per day. Brief for Petitioners 27.
15
If it were true that any prison providing less than 63 square feet of cell space per inmate were a per se violation of the Eighth Amendment, then approximately two-thirds of all federal, state, and local inmates today would be unconstitutionally confined. See supra, at 356.
16
This is not to say that injury to the inmates from challenged prison conditions must be "demonstrate[d] with a high degree of specificity and certainty." Ruiz v. Estelle, 503 F.Supp., at 1286. Courts may, as usual, employ common sense, observation, expert testimony, and other practical modes of proof. See id., at 1286-1287.
17
Cf. Capps v. Atiyeh, 495 F.Supp., at 810-814 (evidence "replete with examples of the deleterious effects of overcrowding on prisoners' mental and physical health," including increased health risks, diminished access to essential services, fewer opportunities to engage in rehabilitative programs, levels of privacy and quiet insufficient for psychological well-being, and exacerbated levels of tension, anxiety, and fear); Anderson v. Redman, 429 F.Supp., at 1112-1118 (court found that overcrowding had caused severe physical and psychological damage to inmates, increased the incidence of self-mutilation, suicide, attempted suicide, theft, assault, and homosexual rape, destroyed all privacy, overtaxed the sanitary facilities, exacerbated the problems of filth, noise, and vermin, caused serious deterioration in medical care, fostered increased idleness, broke down the classification and incentive systems, and demoralized the staff).
1
"The experts were all in agreement—as is everybody—that single celling is desirable." 434 F.Supp. 1007, 1016 (SD Ohio 1977).
2
See id., at 1010-1011.
3
The bed alone, which is bunk-style in the doubled cells, takes up approximately 20 square feet. Thus the actual amount of floor space per inmate, without making allowance for any other furniture in the room, is some 20-24 square feet, an area about the size of a typical door.
4
See, e. g., American Public Health Assn., Standards for Health Services in Correctional Institutions 62 (1976) ("a minimum of 60 sq. ft."); Commission on Accreditation for Corrections, Manual of Standards for Adult Correctional Institutions 27 (1977) ("a floor area of at least 60 square feet"; "[i]n no case should the present use of the facility exceed designed use standards"); 3 National Institute of Justice, American Prisons and Jails 85, n. 6 (1980) ("80 square feet of floor space in long-term institutions"); National Sheriffs' Assn., A Handbook on Jail Architecture 63 (1975) ("[s]ingle occupancy detention rooms should average 70 to 80 square feet in area"); U.S. Dept. of Justice, Federal Standards for Prisons and Jails 17 (1980) ("at least 60 square feet of floor space"); National Council on Crime and Delinquency, Model Act for the Protection of Rights of Prisoners, 18 Crime & Delinquency 4, 10 (1972) ("not less than fifty square feet of floor space in any confined sleeping area"). Most of these studies recommend even more space for inmates who must spend more than 10 hours per day in their cells. One expert witness, a former warden of Rikers Island, testified from his experience that the double celling, if continued over "an awful long stretch of time," could be expected to lead to "assault behavior" and "homosexual occurrences." Tr. 48. He added that "skid row bums" in Bowery flophouses tend to live in healthier surroundings than do double-celled inmates. Id., at 55. As will become apparent, the majority and I disagree over the weight to be given these studies and the expert testimony. But I emphasize that the majority has not pointed to a single witness or study refuting or even contradicting the conclusion of panel after panel of experts that an inmate needs as an absolute minimum 50 square feet of floor space to himself to avoid deterioration of his health.
5
In my dissenting opinion in Bell v. Wolfish, 441 U.S. 520, 572, n. 12, 99 S.Ct. 1861, 1891, n. 12, 60 L.Ed.2d 447 (1979), I pointed out that the majority ignored "the rated capacity of the institution" in determining whether the challenged overcrowding was unconstitutional. In its opinion today, the Court at least mentions that SOCF is operating at 38% above its rated capacity, but it dismisses that rating as "[p]erhaps" reflecting "an aspiration toward an ideal environment for long-term confinement." Ante, at 349. "The question before us," the majority adds, "is not whether the designer of SOCF guessed incorrectly about future prison population, but whether the actual conditions of confinement at SOCF are cruel and unusual." Ante, at 350-351, n. 15. Rated capacity, the majority argues, is irrelevant because of the numerous factors that influence prison population. Actually, it is the factors that influence prison population that are irrelevant. By definition, rated capacity represents "the number of inmates that a confinement unit, facility, or entire correctional agency can hold." 3 National Institute of Justice, American Prisons and Jails 41-42 (1980). If prison population, for whatever reason, exceeds rated capacity, then the prison must accommodate more people than it is designed to hold—in short, it is overcrowded. And the greater the proportion by which prison population exceeds rated capacity, the more severe the overcrowding. I certainly do not suggest that rated capacity is the only factor to be considered in determining whether a prison is unconstitutionally overcrowded, but I fail to understand why the majority feels free to dismiss it entirely.
6
Although the majority suggests, ante, at 344, n. 8, that this finding lacks a clear basis, the trial court also found as a fact that most inmates are out of their cells only 10 hours each day. 434 F.Supp., at 1013. This leaves 14 hours per day inside the cell. The trial court also found that a "substantial number" of inmates are out of their cells for no more than four to six hours per week. Id., at 1021.
The majority assumes, ante, at 350, n. 15, that the trial court's finding that most inmates are out of their cells only 10 hours each day is "flatly inconsistent" with its finding that regulations permit most inmates to be out of their cells up to 14 hours each day. The majority goes on to reject the first finding in favor of the second. A more reasonable course would be to read these two findings in such a way as to give meaning to both. Thus I read the District Court's opinion as finding that although most inmates are permitted to be out of their cells up to 14 hours each day, conditions in the prison are such that many choose not to do so.
The majority also attaches importance to the fact that the inmates who are locked in their cells for all but four to six hours a week are in a "restrictive classification." Ibid. It is not clear to me why this matters. The inmates who are out of their cells only four to six hours each week are in three categories: "receiving," a category in which new inmates are placed for "a couple of weeks"; "voluntarily idle," which presumably means what it says; and "limited activity," for those inmates who have requested, but have not received protective custody. It is not immediately apparent why classification in any of these categories justifies imposition of otherwise cruel and unusual punishment. In particular, the State surely lacks authority to force an individual to choose between possibility of rape or other physical harm (the presumed reason for the request for protective custody) and unconstitutionally cramped quarters. The majority asserts, incorrectly, that some of these inmates have committed rule infractions. Ibid. In fact, inmates who commit infractions are out of their cells only two hours each week. 434 F.Supp., at 1013. Although this dissent has not addressed their particular plight, it is beyond question that if punishment is cruel and unusual, then the mere fact that an individual prisoner has committed a rule infraction does not warrant its imposition. See Hutto v. Finney, 437 U.S. 678, 685-688, 98 S.Ct. 2565, 2570-2572, 57 L.Ed.2d 522 (1978).
7
In its findings, the District Court credited expert testimony that "close quarters" would likely increase the incidence of schizophrenia and other mental disorders and that the double celling imposed in this case had led to increases in tension and in "aggressive and anti-social characteristics." 434 F.Supp., at 1017. There is no dispute that the prison was violent even before it became overcrowded, and that it has become more so. Contrary to the contention by the majority, ante, at 349-350, n. 15, I do not assert that violence has increased due to double celling. I accept the finding of the District Court that violence has increased due to overcrowding. See 434 F.Supp., at 1018. Plainly, this case involves much more than just the constitutionality of double celling per se. Other federal courts faced with overcrowded conditions have reached similar conclusions. See, e. g., Campbell v. McGruder, 188 U.S.App.D.C. 258, 273, 580 F.2d 521, 536 (1978); Battle v. Anderson, 564 F.2d 388, 399-401 (CA10 1977); Detainees of Brooklyn House of Detention v. Malcolm, 520 F.2d 392, 396, 399 (CA2 1975).
8
The majority's treatment of the expert evidence in this case also calls for some comment. The Court asserts that expert opinions as to what is desirable in a prison "may be helpful and relevant with respect to some questions" but " 'simply do not establish the constitutional minima; rather, they establish goals recommended by the organization in question.' " Ante, at 348, n. 13, quoting Bell v. Wolfish, 441 U.S., at 543-544, n. 27, 99 S.Ct., at 1876, n. 27. That is more or less a truism, but it plainly does not advance analysis. No one would suggest that a study, no matter how competent, could ever establish a constitutional rule. But once the rule is established, it is surely the case that expert evidence can shed light on whether the rule is violated. Cf. Brown v. Board of Education, 347 U.S. 483, 494, n. 11, 74 S.Ct. 686, 691, n. 11, 98 L.Ed. 873 (1954) (using psychological studies to show harm from segregation). Thus even if it is true, as the majority asserts, that the Eighth Amendment forbids only a punishment that "either inflicts unnecessary or wanton pain or is grossly disproportionate to the severity of crimes warranting imprisonment," ante, at 348, surely a court faced with a claim of unconstitutionality would want to know whether anyone had in fact studied the effect of the punishment in issue. Deciding whether that effect was of unconstitutional proportions, and, indeed, whether the study was competently done, would naturally remain the court's function. Here, the trial court deemed the expert opinion presented to it worthy of considerable weight in its assessment of the conditions at SOCF. The majority, however, casts it aside without even a token evaluation of the methodology, content, or results of any of the studies on which the District Court relied. If expert opinion is of as little value as the majority implies, then even plaintiffs with meritorious claims that their conditions of confinement violate the Eighth Amendment will have tremendous difficulty in proving their cases.
| 01
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452 U.S. 314
101 S.Ct. 2376
69 L.Ed.2d 40
Donald Paul HODEL, Acting Secretary of the Interior, et al., Appellants,v.State of INDIANA et al.
No. 80-231.
Argued Feb. 23, 1981.
Decided June 15, 1981.
Syllabus
This appeal involves a constitutional challenge to the so-called "prime farmland" provisions and certain general provisions of the Surface Mining Control and Reclamation Act of 1977 (Act). The prime farmland provisions establish special requirements for surface coal mining operations conducted on land that both qualifies as prime farmland and has historically been used as cropland. These provisions include § 510(d)(1), which requires an applicant for a permit for mining on prime farmland to show that he has the capacity to restore the land, within a reasonable time after the completion of mining, to the productivity level of prime farmland in the surrounding area; § 519(c)(2), which conditions release of a mine operator's bond on the completion of such restoration; and § 508(a)(2), which directs mine operators to include information about the premining productivity of the land in the reclamation plans filed as part of permit applications. The general provisions in question include § 515(b)(3), which requires restoration of mined land to its approximate original contour; § 515(b)(5), which requires surface mine operators to remove topsoil separately and preserve it for use during reclamation; § 508, which requires applicants for surface mining permits to submit reclamation plans; §§ 522(a), (c), and (d), which require States wishing to regulate surface mining to establish an administrative procedure for determining whether particular lands are unsuitable for surface mining; § 522(e), which proscribes mining within a specified distance of roads, cemeteries, public buildings, schools, churches, public parks, or dwellings; and the Act's procedures for collecting civil penalties from violators of the Act, including a requirement that a contested penalty be paid into an escrow account pending review. Appellees (the State of Indiana and several of its officials, the Indiana Coal Association, several coal mine operators, and others) filed suits in Federal District Court, alleging that the provisions in question contravene the Commerce Clause, the equal protection and due process guarantees of the Due Process Clause of the Fifth Amendment, the Tenth Amendment, and the Just Compensation Clause of the Fifth Amendment. The District Court sustained each of the constitutionalchallenges and permanently enjoined enforcement of the challenged provisions.
Held : The Act is not vulnerable to appellees' pre-enforcement constitutional challenge. Pp. 321-336.
(a) The provisions in question do not violate the Commerce Clause. The Act was adopted to ensure that production of coal for interstate commerce would not be at the expense of agriculture, the environment, or public health and safety, and to protect mine operators in States adhering to high performance and reclamation standards from disadvantageous competition with operators in States with less rigorous regulatory programs. The challenged provisions advance these legitimate goals, and Congress acted reasonably in adopting the regulatory scheme contained in the Act. Pp. 321-329.
(b) Nor do the challenged provisions contravene the Tenth Amendment. Such provisions regulate only the activities of surface mine operators who are private individuals and businesses, and do not directly regulate the States as States. Pp. 330.
(c) The prime farmland and approximate-original-contour provisions do not violate the equal protection and due process guarantees of the Fifth Amendment. Congress acted rationally in making no allowances for variances from the prime farmland requirements and in allowing variances from the approximate original contour only for steep-slope and mountaintop operations. The fact that a particular State has more mining operations under prime farmland and fewer steep-slope or mountaintop operations than another State does not establish impermissible discrimination under the Fifth Amendment's Due Process Cause. And, by invalidating the prime farmland and approximate-original-contour provisions under the rubric of "substantive due process," the District Court essentially acted as a superlegislature and accordingly exceeded its proper role. Pp. 331-333.
(d) Sections 510(d)(1), 519(c)(2), 508(a)(2) and 522(a), (c), (d), and (e) do not take private property without just compensation in violation of the Fifth Amendment. Appellees' taking claims do not focus on any particular properties to which the challenged provisions have been applied. Similarly, the District Court's ruling did not pertain to the taking of a particular piece of property or the denial of a mining permit for specific farmland operations proposed by appellees. The "mere enactment" of the Act did not effect an unconstitutional taking of private property. The prime farmland provisions do not prohibit surface mining but merely regulate the conditions under which such mining may be conducted. Pp. 333-335.
(e) Appellees' challenge to the civil penalty provisions of the Act as depriving mine operators of their right to due process is premature, where appellees have not shown that they were ever assessed civil penalties, much less that the statutory prepayment requirement was ever applied to them or caused them any injury. P.p.335-336.[[SC2Q!]] D.C.,
501 F.Supp. 452, reversed and remanded.
Peter Buscemi, Washington, D. C., for appellants.
G. Daniel Kelley, Jr., Indianapolis, Ind., for appellees.
Justice MARSHALL delivered the opinion of the Court.
1
This appeal, like Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 101 S.Ct. 2352, 69 L.Ed.2d 1, also decided today, involves a broad constitutional challenge to numerous important provisions of the Surface Mining Control and Reclamation Act of 1977, 91 Stat. 445, 30 U.S.C. § 1201 et seq. (1976 ed., Supp. III) (Surface Mining Act or Act). Many of the specific provisions attacked in this case, however, differ from the "steep-slope" provisions that were the primary focus of the challenge in Virginia Surface Mining. The United States District Court for the Southern District of Indiana ruled that the provisions of the Act challenged here are unconstitutional and permanently enjoined their enforcement. 501 F.Supp. 452 (1980). We noted probable jurisdiction, sub nom. Andrus v. Indiana, 449 U.S. 816, 101 S.Ct. 67, 66 L.Ed.2d 19 (1980), and we now reverse.
2
* A.
3
The basic structure of the Surface Mining Act is described in Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S., at 268-272, 101 S.Ct., at 2356-2358, and it will therefore suffice here to briefly describe the specific provisions drawn into question in this case. Several of the challenged sections of the Act are known collectively as the "prime farmland" provisions. These sections establish special requirements for surface mining operations conducted on land that both qualifies as prime farmland under a definition promulgated by the Secretary of Agriculture and has historically been used as cropland within the meaning of the regulations of the Secretary of the Interior (Secretary) implementing the Surface Mining Act. § 701(20), 30 U.S.C. § 1291(20) (1976 ed., Supp. III).1 A permit for surface coal mining on such lands may be granted only if the mine operator can demonstrate its "technological capability to restore such mined area, within a reasonable time, to equivalent or higher levels of yield as nonmined prime farmland in the surrounding area under equivalent levels of management . . . ." § 510(d)(1), 30 U.S.C. § 1260(d)(1) (1976 ed., Supp. III). The operator must also show that it can "meet the soil reconstruction standards" for prime farmland set forth in § 515(b)(7), 30 U.S.C. § 1265(b)(7) (1976 ed., Supp. III). That section specifies that the distinct soil layers on prime farmland must be separately removed, segregated, stockpiled, and then properly replaced and regraded. Furthermore, § 519(c)(2), 30 U.S.C. § 1269(c)(2) (1976 ed., Supp. III), provides that upon its completion of mining activities on prime farmland, a mine operator can have its performance bond released only on a showing that soil productivity "has returned to equivalent levels of yield as nonmined land of the same soil type in the surrounding area under equivalent management practices . . . ."2
4
Also challenged here are some of the Act's more general provisions that are applicable throughout the country. These include § 515(b)(3), which requires restoration of mined land to its approximate original contour,3 and the directive in § 515(b)(5), 30 U.S.C. § 1265(b)(5) (1976 ed., Supp. III), that surface mine operators remove topsoil separately during mining activities and preserve it for use during reclamation if it is not to be replaced immediately on the backfill area of the mining cut. Section 508, 30 U.S.C. § 1258 (1976 ed., Supp. III), requires applicants for surface coal mining permits to submit proposed reclamation plans specifying the intended postmining use of the land and the method by which that use will be achieved. In addition, §§ 522(a), (c), (d), 30 U.S.C. §§ 1272(a), (c), (d) (1976 ed., Supp. III), require States wishing to assume permanent regulatory authority over surface coal mining to establish an administrative procedure for determining whether particular lands are unsuitable for some or all kinds of surface mining.4 Section 522(e), 30 U.S.C. § 1272(e) (1976 ed., Supp. III), proscribes mining activity within 100 feet of roadways and cemeteries or within 300 feet of public buildings, schools, churches, public parks, or occupied dwellings. Finally, the Act's procedures for collecting proposed civil penalties contained in § 518(c), 30 U.S.C. § 1268(c) (1976 ed., Supp. III), are also drawn into question here.
B
5
These suits were filed in August 1978, one by the State of Indiana and several of its officials, and the other by the Indiana Coal Association, several coal mine operators, and others. The complaints alleged that the Act contravenes the Commerce Clause, the equal protection and due process guarantees of the Due Process Clause of the Fifth Amendment, the Tenth Amendment, and the Just Compensation Clause of the Fifth Amendment.
6
The District Court held a 1-day hearing on plaintiffs' motion for a preliminary injunction and defendants' motion to dismiss, and the court ultimately decided the case on the merits without taking further evidence. On June 10, 1980, the District Court issued an order and opinion sustaining each of plaintiffs' constitutional challenges and permanently enjoining the Secretary from enforcing the challenged sections of the Act. 501 F.Supp. 452 (SD Ind. 1980).5
II
7
The District Court gave two rationales for its decision on the Commerce Clause issue. The court first held that the six "prime farmland" provisions6 are beyond congressional power to regulate interstate commerce because they are "directed at facets of surface coal mining which have no substantial and adverse effect on interstate commerce." Id., at 460. The court reached this conclusion by examining statistics in the Report of the Interagency Task Force on the Issue of a Moratorium or a Ban on Mining in Prime Agricultural Lands (1977) (Interagency Report).7 These statistics compared the prime farmland acreage being disturbed annually by surface mining to the total prime farmland acreage in the United States. The Interagency Report stated that approximately 21,800 acres of prime farmland were being disturbed annually and that this acreage amounted to 0.006% of the total prime farmland acreage in the Nation. 501 F.Supp., at 459. This statistic and others derived from it, together with similar comparisons for Indiana, persuaded the court that surface coal mining on prime farmland has "an infinitesimal effect or trivial impact on interstate commerce." Id., at 458.8
8
With respect to the other 15 substantive provisions which apply to surface mining generally,9 the District Court reasoned that the only possible adverse effects on interstate commerce justifying congressional action are air and water pollution and determined that these effects are adequately addressed by other provisions of the Act. The court therefore concluded that these 15 provisions as well as the 6 prime farmland provisions "are not directed at the alleviation of water or air pollution, to the extent that there are [any] such effects, and are not means reasonably and plainly adapted to [the legitimate end of] removing any substantial and adverse effect on interstate commerce." Id., at 461. We find both of the District Court's rationales untenable.
9
It is established beyond peradverture that "legislative Acts adjusting the burdens and benefits of economic life come to the Court with a presumption of constitutionality . . . ." Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15, 96 S.Ct. 2882, 2892, 49 L.Ed.2d 752 (1976). See also Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 83-84, 98 S.Ct. 2620, 2635-2636, 57 L.Ed.2d 595 (1978). A court may invalidate legislation enacted under the Commerce Clause only if it is clear that there is no rational basis for a congressional finding that the regulated activity affects interstate commerce, or that there is no reasonable connection between the regulatory means selected and the asserted ends. Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S., at 276, 101 S.Ct., at 2360; Katzenbach v. McClung, 379 U.S. 294, 303-304, 85 S.Ct. 377, 383, 13 L.Ed.2d 290 (1964); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258, 262, 85 S.Ct. 348, 360, 13 L.Ed.2d 258 (1964). We are not convinced that the District Court had reliable grounds to reach either conclusion in this case.
10
In our view, Congress was entitled to find that the protection of prime farmland is a federal interest that may be addressed through Commerce Clause legislation. The Interagency Report provides no basis for the District Court's contrary view. That report dealt only with the question whether a complete moratorium or ban on surface coal mining on prime farmland was advisable as a matter of policy. The report neither purported to examine the full impact of surface mining on interstate commerce in agricultural commodities, nor concluded that the impact is too negligible to warrant federal regulation.10 More important, the court below incorrectly assumed that the relevant inquiry under the rational-basis test is the volume of commerce actually affected by the regulated activity. This Court held in NLRB v. Fainblatt, 306 U.S. 601, 606, 59 S.Ct. 668, 671, 83 L.Ed. 1014 (1939), that "[t]he power of Congress to regulate interstate commerce is plenary and extends to all such commerce be it great or small." The pertinent inquiry therefore is not how much commerce is involved but whether Congress could rationally conclude that the regulated activity affects interstate commerce. See Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., supra, at 276-277, 101 S.Ct., at 2360; Perez v. United States, 402 U.S. 146, 154-156, 91 S.Ct. 1357, 1361-1362, 28 L.Ed.2d 686 (1971); Katzenbach v. McClung, supra, at 303-304, 85 S.Ct., at 383; Wickard v. Filburn, 317 U.S. 111, 127-129, 63 S.Ct. 82, 90-91, 87 L.Ed. 122 (1942). Cf. Polish National Alliance v. NLRB, 322 U.S. 643, 648, 64 S.Ct. 1196, 1199, 88 L.Ed. 1509 (1944); United States v. Darby, 312 U.S. 100, 123, 61 S.Ct. 451, 461, 85 L.Ed. 609 (1941).11
11
Against this background, we have little difficulty in concluding that the congressional finding in this case satisfies the rational-basis test. The Senate considered information from the Interagency Report about the prime farmland acreage that might be affected by surface coal mining. See 123 Cong.Rec. 15713 (1977) (remarks of Sen. Percy). In addition, Senator Percy called the Senate's attention to testimony presented at the Senate Committee hearings about the losses in agricultural productivity attributable to surface mining.12 Id., at 15713-15717. See also id., at 15720-15721 (remarks of Sen. Humphrey), 15721 (remarks of Sen. Stevenson). Similar evidence was presented during the contemporaneous hearings before the House Committee,13 and the Committee Report referred to this testimony in explaining the origins of the "prime farmland" provisions. The Report stated:
12
"The Committee heard testimony from citizens and local officials of Illinois and Indiana requesting that special attention be given in the bill to the protection of prime agricultural lands. Working with officials of the Soil Conservation Service, the Committee added a number of provisions to H.R. 2 designed to insure the proper reconstruction of soil strata within those areas classified as prime agricultural lands." H.R.Rep. No. 95-218, p. 184 (1977), U.S.Code Cong. & Admin.News 1977, p. 715.
13
In our judgment, the evidence summarized in the Reports mandates the conclusion that Congress had a rational basis for finding that surface coal mining on prime farmland affects interstate commerce in agricultural products. As we explained in Stafford v. Wallace, 258 U.S. 495, 521, 42 S.Ct. 397, 403, 66 L.Ed. 735 (1922):
14
"Whatever amounts to more or less constant practice, and threatens to obstruct or unduly to burden the freedom of interstate commerce is within the regulatory power of Congress under the commerce clause, and it is primarily for Congress to consider and decide the fact of danger and meet it. This court will certainly not substitute its judgment for that of Congress unless the relation of the subject to interstate commerce and its effect upon it are clearly non-existent."
15
The court below improperly substituted its judgment for the congressional determination.14
16
We also conclude that the court below erred in holding that the prime farmland and 15 other substantive provisions challenged by appellees are not reasonably related to the legitimate goal of protecting interstate commerce from adverse effects attributable to surface coal mining. The court incorrectly assumed that the Act's goals are limited to preventing air and water pollution. As we noted in Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S., at 277-280, 101 S.Ct., at 2360-2362, Congress was also concerned about preserving the productive capacity of mined lands and protecting the public from health and safety hazards that may result from surface coal mining. All the provisions invalidated by the court below are reasonably calculated to further these legitimate goals.15
17
For example, the approximate-original-contour requirement in § 515(b)(5) is designed to avoid the environmental and other harm that may result from unreclaimed or improperly restored mining cuts.16 As the Senate Committee Report explained:
18
"If surface mining and reclamation are not done carefully, significant environmental damage can result. In addition, unreclaimed or improperly reclaimed surface coal mines pose a continuing threat to the environment, and at times are a danger to public health and safety, public or private property." S.Rep. No. 95-128, p. 50 (1977). See also, id., at 83; H.R.Rep. No. 95-218, supra, at 79-80, 93.
19
The same is true of § 508's requirement that applicants for surface mining permits under the permanent program must inform the regulatory authority of the intended postmining use for the land and the manner in which such use will be achieved. This requirement was among the remedial actions specifically recommended to the House Committee by the United States Army Corps of Engineers. The Corps recommended "[a]dvanced submission of mining and reclamation plans to a responsible government agency having authority to grant or deny approval to engage in mining, based upon the information in the plans and the requirements of the regulations." House Hearings, pt. 2, at 86. These requirements obviously enable the regulatory authority to ascertain, before mining begins, whether the prospective mine operator has given adequate consideration to the postmining fate of the land, and whether the operator possesses the technological capability to restore the land in the manner proposed.
20
Similarly, the relevance of the topsoil-replacement requirement in § 515(b)(5) to the congressional goal of preserving the productive capacity of mined land should be self-evident. See H.R.Rep. No. 95-218, supra, at 106-109. Again, this measure was included among the Corps of Engineers' recommendations to the House Committee. The Corps spokesman advised the Committee to require "[s]egregation and preservation of topsoils during, or preceding, mining operations . . . [in order] to provide soil conditions conducive to rapid revegetation after mining . . . ." House Hearings, pt. 2, at 86. Section 522(e)'s prohibition against mining near churches, schools, parks, public buildings, and occupied dwellings is plainly directed toward ensuring that surface coal mining does not endanger life and property in coal mining communities.
21
Congress adopted the Surface Mining Act in order to ensure that production of coal for interstate commerce would not be at the expense of agriculture, the environment, or public health and safety, injury to any of which interests would have deleterious effects on interstate commerce. See 30 U.S.C. § 1202(f) (1976 ed., Supp. III); S.Rep. No. 95-128, supra, at 49-53; H.R.Rep. No. 95-218, supra, at 57-60. Moreover, as noted in Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S., at 281-282, 101 S.Ct., at 2363, the Act reflects the congressional goal of protecting mine operators in States adhering to high performance and reclamation standards from disadvantageous competition with operators in States with less rigorous regulatory programs. See 30 U.S.C. § 1201(g) (1976 ed., Supp. III). The statutory provisions invalidated by the District Court advance these legitimate goals, and we conclude that Congress acted reasonably in adopting the regulatory scheme contained in the Act.17
III
22
The District Court also held that the 21 substantive statutory provisions discussed above violate the Tenth Amendment because they constitute "displacement or regulation of the management structure and operation of the traditional governmental function of the States in the area of land use control and planning . . . ." 501 F.Supp., at 468. The District Court ruled that the real purpose and effect of the Act is land-use regulation, which, in the court's view, is a traditional state governmental function. The court below, like the District Court in Virginia Surface Mining, relied for its Tenth Amendment analysis on this Court's decision in National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976).
23
For the reasons stated in our opinion in Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S., at 286-293, 101 S.Ct., at 2365-2369, we hold that the District Court erred in concluding that the challenged provisions of the Act contravene the Tenth Amendment. Like the provisions challenged in Virginia Surface Mining, the sections of the Act under attack in this case regulate only the activities of surface mine operators who are private individuals and businesses, and the District Court's conclusion that the Act directly regulates the States as States is untenable. This Court's decision in National League of Cities simply is not applicable to this case.18
IV
24
The District Court next held that the prime farmland and approximate-original-contour provisions of the Act violate the equal protection and substantive due process guarantees of the Fifth Amendment. The court noted that the Act makes no allowance for variances from the prime farmland requirements, and that variances from the approximate-original-contour provisions are available only for steep-slope and mountaintop operations. The court reasoned that the absence of a variance procedure from these statutory requirements impermissibly discriminates against coal mine operators and States in the Midwest, where there are significant coal reserves located under prime farmland and few or no steep-slope or mountaintop mining operations. Relying on this Court's decision in Hampton v. Mow Sun Wong, 426 U.S. 88, 96 S.Ct. 1895, 48 L.Ed.2d 495 (1976), the court ruled that this discriminatory treatment could not withstand equal protection scrutiny because it is not justified by "an overriding national interest." 501 F.Supp., at 469. The court further held that both the prime farmland and approximate-original-contour provisions "constitute a deprivation of substantive due process" because they are "irrational, arbitrary and capricious requirements in situations where they are not reasonably necessary to achieve a particular postmining use . . . ." Ibid.
25
Although its decision was couched in terms of the arbitrariness of the challenged provisions, we fear that the court below did no more than substitute its policy judgment for that of Congress. Social and economic legislation like the Surface Mining Act that does not employ suspect classifications or impinge on fundamental rights must be upheld against equal protection attack when the legislative means are rationally related to a legitimate governmental purpose. Schweiker v. Wilson, 450 U.S. 221, 101 S.Ct. 1074, 67 L.Ed.2d 186 (1981); U. S. Railroad Retirement Board v. Fritz, 449 U.S. 166, 101 S.Ct. 453, 66 L.Ed.2d 368 (1980). Moreover, such legislation carries with it a presumption of rationality that can only be overcome by a clear showing of arbitrariness and irrationality. Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S., at 83, 98 S.Ct., at 2635; Usery v. Turner Elkhorn Mining Co., 428 U.S., at 15, 96 S.Ct., at 2892. As the Court explained in Vance v. Bradley, 440 U.S. 93, 97, 99 S.Ct. 939, 943, 59 L.Ed.2d 171 (1979), social and economic legislation is valid unless "the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that [a court] can only conclude that the legislature's actions were irrational." This is a heavy burden, and appellees have not carried it.
26
Neither the court below nor appellees have identified any instance in which the prime farmland or approximate-original-contour provisions have been applied to a mining operation so as to produce an irrational or arbitrary result. More important, even were appellees correct that the challenged provisions impose a greater burden on mine operators in the Midwest, that is no basis for finding the provisions unconstitutional. A claim of arbitrariness cannot rest solely on a statute's lack of uniform geographic impact. Secretary of Agriculture v. Central Roig Refining Co., 338 U.S. 604, 616-619, 70 S.Ct. 403, 409-410, 94 L.Ed. 381 (1950); Currin v. Wallace, 306 U.S. 1, 14, 59 S.Ct. 379, 386, 83 L.Ed. 441 (1939). As the Court explained in Central Roig Refining Co., supra, 338 U.S., at 616, 70 S.Ct., at 409:
27
"Nor does the Commerce Clause impose requirements of geographic uniformity. . . . Congress may devise . . . a national policy with due regard for the varying and fluctuating interests of different regions."
28
The characteristics of surface coal mining obviously will vary according to the different geographical conditions present in affected States. Congress has determined that the measures appropriate for steep-slope mines are not necessarily desirable in flatter terrain and prime farmland areas. In allowing variances from the approximate-original-contour requirement applicable to steep-slope mines, Congress may have been influenced by the relative shortage of level land in the steepslope areas of the country which does not exist in the flatter terrain areas of the Midwest. Similarly, Congress presumably concluded that allowing variances from the prime farmland provisions would undermine the effort to preserve the productivity of such lands. In our view, Congress acted rationally in drawing these distinctions, and the fact that a particular State has more of one kind of mining operation than another does not establish impermissible discrimination under the Fifth Amendment's Due Process Clause. Furthermore, by invalidating the challenged provisions of the Act under the rubric of "substantive due process," the District Court essentially acted as a superlegislature, passing on the wisdom of congressional policy determinations. In so doing, the court exceeded its proper role. SeeNew Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2516, 49 L.Ed.2d 511 (1976); Ferguson v. Skrupa, 372 U.S. 726, 730, 83 S.Ct. 1028, 1031, 10 L.Ed.2d 93 (1963).
V
29
As did its counterpart in Virginia Surface Mining, the District Court here ruled that some of the Act's provisions take private property without just compensation in violation of the Fifth Amendment. The court found fault with three of the prime farmland provisions. One is the provision requiring an operator seeking a permit for mining on such land to show that he has the capacity to restore the land, within a reasonable time after the completion of mining, to at least the productivity levels of "non-mined prime farmland in the surrounding area under equivalent levels of management . . . ." § 510(d)(1), 30 U.S.C. § 1260(d)(1) (1976 ed., Supp. III). The second provision conditions the release of a mine operator's performance bond on the completion of this restoration. § 519(c)(2), 30 U.S.C. § 1269(c)(2) (1976 ed., Supp. III). The third provision directs mine operators to include information about the pre-mining productivity of the land in the reclamation plans they file as part of "prime farmland" permit applications. § 508(a)(2), 30 U.S.C. § 1258(a)(2) (1976 ed., Supp. III). The District Court concluded that these three provisions effect an unconstitutional taking of private property because, in the court's view,
30
"it is technologically impossible to reclaim prime farmland in a postmining period so that equal or higher levels of yield under high levels of management practice can be achieved." 501 F.Supp., at 470.
31
The court also ruled that the requirement in § 522 of a procedure for designating areas unsuitable for mining operations, as well as § 522(e)'s proscription of mining on certain lands and near particular structures, takes private property without just compensation.
32
In this case as in Virginia Surface Mining, appellees' takings claims do not focus on any particular properties to which the challenged provisions have been applied. Similarly, the District Court's ruling did not pertain to the taking of a particular piece of property or the denial of a mining permit for specific prime farmland operations proposed by appellees.19 Thus, this case resembles Virginia Surface Mining in that the only issue properly before the District Court was whether "mere enactment" of the Surface Mining Act effected an unconstitutional taking of private property. For the reasons discussed more fully in Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S., at 294-297, 101 S.Ct., at 2369-2371, we conclude that this question must be answered in the negative.
33
Like the steep-slope provisions reviewed in Virginia Surface Mining, the prime farmland provisions do not prohibit surface mining; they merely regulate the conditions under which the activity may be conducted. The prime farmland provisions say nothing about alternative uses to which prime farmland may be put since they come into play only when an operator seeks to conduct mining operations on the land. We therefore conclude that these provisions do not, on their face, deprive a property owner of economically beneficial use of his property.20
VI
34
The court below joined the Virginia Surface Mining District Court in holding that the Act's civil penalty provisions deprive coal mine operators of their right to due process. However, like their counterparts in Virginia Surface Mining, appellees have made no showing that they were ever assessed civil penalties under the Act, much less that the statutory prepayment requirement was ever applied to them or caused them any injury. As in Virginia Surface Mining, we hold that appellees' challenge to these provisions is premature.
VII
35
Our review of the questions presented by this case leads us to the same conclusion that we reached in Virginia Surface Mining. The Surface Mining Act is not vulnerable to appellees' pre-enforcement constitutional challenge. Accordingly, we reverse the judgment of the District Court and remand the case to that court with instructions to dissolve the injunction entered against the Secretary, and for further proceedings consistent with this opinion.
36
So ordered.
1
Section 701(20), 91 Stat. 517, 30 U.S.C. § 1291(20) (1976 ed., Supp. III), provides that
"the term 'prime farmland' shall have the same meaning as that previously prescribed by the Secretary of Agriculture on the basis of such factors as moisture availability, temperature regime, chemical balance, permeability, surface layer composition, susceptibility to flooding, and erosion characteristics, and which historically have been used for intensive agricultural purposes, and as published in the Federal Register."
The Secretary of Agriculture's definition is found at 7 CFR pt. 657 (1980), and is incorporated into the Secretary of the Interior's regulations implementing the Act by 30 CFR § 701.5 (1980). The Secretary published regulations defining "prime farmland" for purposes of the Act's interim phase. The United States District Court for the District of Columbia remanded the regulations to the Secretary for reconsideration on grounds not pertinent here. See In re Surface Mining Regulation Litigation, 456 F.Supp. 1301, 1312 (1978), rev'd in part on other grounds, 201 U.S.App.D.C. 360, 627 F.2d 1346 (1980). The Secretary has published proposed new regulations defining "prime farmland" for purposes of the interim program. See 44 Fed.Reg. 33625 (1979).
2
Under § 509 of the Act, 30 U.S.C. § 1259 (1976 ed., Supp. III), no mining permits may be issued until the operator has filed a performance bond with the appropriate regulatory authority.
3
Section 515(b)(3) describes the "approximate original contour" requirement applicable generally to surface mining operations. Appellees in Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 101 S.Ct. 2352, 69 L.Ed.2d 1, challenged the approximate-original-contour provision in § 515(d) of the Act, which is applicable only to surface mining operations on steep slopes.
4
The progress of the States in submitting proposed permanent regulatory programs under § 503 of the Act and the Secretary's response to those submissions is described in Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S., at 272, n. 7, 101 S.Ct., at 2357, n. 7. The proposed program submitted by Indiana was approved in part and disapproved in part. See 45 Fed.Reg. 78482 (1980).
5
On July 2, 1980, Justice STEVENS stayed the District Court's judgment pending final disposition of this appeal.
6
The six are:
(1) § 507(b)(16), 30 U.S.C. § 1257(b)(16) (1976 ed., Supp. III), which requires a "soil survey" of suspected prime farmlands "to confirm the exact location of such prime farmlands, if any";
(2) § 508(a)(2)(C), 30 U.S.C. § 1258(a)(2)(C) (1976 ed., Supp. III), which directs a mine operator to include in its reclamation plan information about "the productivity of land prior to mining, including appropriate classification as prime farm lands, as well as the average yield of food, fiber, forage, or wood products from such lands obtained under high levels of management";
(3) § 510(d)(1), 30 U.S.C. § 1260(d)(1) (1976 ed., Supp. III), which allows permits to be issued for mining on prime farmland only when the regulatory authority is satisfied that the operator "has the technological capability to restore such mined area, within a reasonable time, to equivalent or higher levels of yield as non-mined prime farmland in the surrounding area under equivalent levels of management and can meet the soil reconstruction standards in Section 515(b)(7) . . .";
(4) § 515(b)(7), 30 U.S.C. § 1265(b)(7) (1976 ed., Supp. III), which requires the separate removal and replacement of the A, B, and C soil horizons of prime farmland;
(5) § 515(b)(20) insofar as it authorizes regulatory authorities to approve "long-term, intensive, agricultural post-mining land use"; and
(6) § 519(c)(2), 30 U.S.C. § 1269(c)(2) (1976 ed., Supp. III), which provides that performance bonds for mining on prime farmland may not be released "until soil productivity for prime farm lands has returned to equivalent levels of yield as nonmined land of the same soil type in the surrounding area under equivalent management practices . . . ."
7
The Interagency Report was submitted to the House Committee on Interior and Insular Affairs in April 1977, one month after the Committee completed hearings on the proposed surface mining legislation. See 501 F.Supp. 452, 459 (SD Ind. 1980).
8
The court noted that it would take 166 years for surface mining to disturb 1% of the total prime farmland in the country. The court also noted that in 1977 the Government's Agricultural Stabilization and Conservation Service paid farmers not to grow crops on 5,900,000 acres, which is 200 times the prime farmland acreage disturbed annually by surface mining. With respect to Indiana, the court pointed out that only 40,000 acres of prime farmland are projected to be disturbed by surface mining in Indiana in the next 20 years, and that this figure amounts to 0.003% of the total prime farmland in Indiana. Id., at 459-460. In addition, the court noted that in 1977, the Government paid Indiana farmers not to farm 369,153 acres, nearly 1,000% more land than would be affected by surface mining in Indiana in the next 20 years. Id., at 460.
9
These provisions are:
(1) § 515(b)(3), 30 U.S.C. § 1265(b)(3) (1976 ed., Supp. III), requiring restoration of surface mined land to its approximate original contour;
(2) § 515(b)(5), 30 U.S.C. § 1265(b)(5) (1976 ed., Supp. III), requiring separate removal, segregation, and ultimate replacement of topsoil on mined land;
(3) §§ 522(a), (c), (d), (e)(4), (e)(5), 30 U.S.C. §§ 1272(a), (c), (d), (e)(4), (e)(5) (1976 ed., Supp. III), requiring permanent regulatory programs to establish procedures for designating particular lands as unsuitable for surface mining, and restricting surface mining within a specified radius of certain facilities;
(4) §§ 508(a)(2), (3), (4), (8), (10), 30 U.S.C. §§ 1258(a)(2), (3), (4), (8), (10) (1976 ed., Supp. III), requiring that reclamation plans be submitted as part of permit applications under the permanent regulatory program, including descriptions of the pre-mining use of the affected land, the proposed postmining use, and the methods by which the proposed use will be achieved;
(5) §§ 510(b)(1), (2), 30 U.S.C. §§ 1260(b)(1), (2) (1976 ed., Supp. III), the general provisions governing approval or disapproval of permit applications under the permanent regulatory program (invalidated to the extent that they entail regulatory authority review of proposed postmining land uses); and
(6) §§ 515(b)(19), (20), 30 U.S.C. §§ 1265(b)(19), (20) (1976 ed., Supp. III), requiring maintenance of revegetation of mined lands for a 5- or 10-year period after completion of mining (invalidated to the extent that they may incorporate a requirement of compliance with a postmining land-use plan approved by the regulatory authority).
10
As explained in the Report of the House Committee, Congress followed the recommendation of the Interagency Report, and rejected a Carter administration proposal for a 5-year moratorium on surface mining on prime farmlands. The Committee explained that Soil Conservation Service officials testified that mined prime farmland could be restored to its original productivity levels through compliance with the prime farmland provisions now contained in the Act. H.R.Rep. No. 95-218, pp. 184-185 (1977), U.S.Code Cong. & Admin.News 1977, p. 593.
11
In any event, the District Court's "finding" that only an insignificant amount of interstate commerce is affected by surface mining on prime farmland is questionable. The court noted that the 21,800 acres of prime farmland disturbed annually by surface mining would have produced about 0.04% of the Nation's total corn production in the 1976-1977 crop year. See 501 F.Supp., at 459. Although this percentage may seem small, it is worth remembering that corn production for grain in that year was 6.4 billion bushels, worth some $12.9 billion. See United States Department of Agriculture, Agricultural Statistics, 30 (1979). Therefore, the 0.04% of corn production would have had an approximate value of $5.16 million which surely is not an insignificant amount of commerce.
12
See Surface Mining Control and Reclamation Act of 1977: Hearings on S. 7 before the Subcommittee on Public Lands and Resources of the Senate Committee on Energy and Natural Resources, 95th Cong., 1st Sess., 775-811 (1977) (Senate Hearings).
13
See Surface Mining Control and Reclamation Act of 1977: Hearings on H.R. 2 before the Subcommittee on Energy and the Environment of the House Committee on Interior and Insular Affairs, 95th Cong., 1st Sess., pt. 4, pp. 16-31, 78-92, 159-172, 235-260 (1977) (House Hearings).
14
Contrary to the District Court's conclusion, it is irrelevant that the Federal Government has in the past paid farmers to refrain from growing crops on certain lands. Such subsidies serve independent goals related to the pricing of agricultural commodities. More important, the affected lands are kept out of production only temporarily, whereas Congress found that unregulated surface mining can be expected to cause long-term or irreversible soil damage.
15
Even if the District Court was correct in assuming that the Act's sole purpose is controlling air and water pollution that may be caused by surface mining, the court's conclusion that the challenged provisions bear no relation to achievement of this goal would nonetheless be questionable. Along with other provisions of the Act addressing these problems, the provisions at issue contribute to this end. The approximate-original-contour and topsoil-replacement requirements, for example, are designed to prevent erosion and sedimentation and thus help preserve water quality. These requirements were among the remedial measures specifically recommended to the House Committee by the United States Army Corps of Engineers for the prevention of further adverse surface mining effects on the Nation's water resources. See House Hearings, pt. 2, at 86.
16
A representative of the United States Army Corps of Engineers testified at the 1977 House hearings that a National Strip Mine Study prepared by the Corps found that more than 4,400,000 acres of land in the United States have already been disturbed by surface mining and that 1,900,000 of those acres have not been reclaimed. He further testified that, according to the study, the annual rate of land disturbance by surface mining was 153,000 acres in 1964, and 207,000 acres in 1974. House Hearings, pt. 2, at 69, 83, 90-95. See also S.Rep. No. 95-128, p. 50 (1977).
17
Appellees contend that a number of the specific provisions challenged in this case cannot be shown to be related to the congressional goal of preventing adverse effects on interstate commerce. This claim, even if correct, is beside the point. A complex regulatory program such as established by the Act can survive a Commerce Clause challenge without a showing that every single facet of the program is independently and directly related to a valid congressional goal. It is enough that the challenged provisions are an integral part of the regulatory program and that the regulatory scheme when considered as a whole satisfies this test. See Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 262, 85 S.Ct. 348, 360, 13 L.Ed.2d 258 (1964); Katzenbach v. McClung, 379 U.S. 294, 303-304, 85 S.Ct. 377, 383-384, 13 L.Ed.2d 290 (1964). Cf. Perez v. United States, 402 U.S. 146, 154-156, 91 S.Ct. 1357, 1361-1362, 28 L.Ed.2d 686 (1971); Wickard v. Filburn, 317 U.S. 111, 127-128, 63 S.Ct. 82, 90, 87 L.Ed. 122 (1942); United States v. Darby, 312 U.S. 100, 123, 61 S.Ct. 451, 461, 85 L.Ed. 609 (1941).
18
We also do not share the view of the District Court that the Surface Mining Act is a land-use measure after the fashion of the zoning ordinances typically enacted by state and local governments. The prime farmland and other provisions at issue in this case are concerned with regulating the conditions and effects of surface coal mining. Any restrictions on land use that may be imposed by the Act are temporary and incidental to these primary purposes. The Act imposes no restrictions on postreclamation use of mined lands.
19
The District Court did find that one of appellee coal companies owns subsurface rights to coal on prime farmland which it "intends to mine . . . in the immediate future." 501 F.Supp., at 470. But even under the District Court's takings analysis, this particular plaintiff's claim is not ripe for judicial determination. For the court held that the Act effects a taking only where it would require a mine operator to demonstrate that it had the capability to restore mined prime farmland to "equal or higher levels of yield under high levels of management." Ibid. (emphasis added). The court specifically found that mined prime farmland can be restored to the productivity of unmined land under what it described as "basic levels of management." Ibid. (emphasis added). Since the plaintiff involved did not allege that it was required to demonstrate a capacity to restore the prime farmland to yields under "high levels of management," there could be no basis for the District Court's conclusion that the mine operator's property has been taken by the Act.
20
The District Court found that "[p]laintiffs coal companies own and/or have rights to and presently intend to mine lands subject to § 522(e)(4) and/or (5)." Id., at 460. However, in Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S., at 296, n. 37, 101 S.Ct., at 2370, n. 37, we held that the "mere enactment" of § 522(e) did not effect an unconstitutional taking of the lands to which its restrictions apply. We rely on our discussion in Virginia Surface Mining to dispose of the pertinent claims here. We also hold that here, as in Virginia Surface Mining, the District Court erred in ruling on the validity of §§ 522(a), (c), and (d). These provisions, which require procedures for designating areas unsuitable for mining, do not come into effect until the permanent phase of the program, and they have not been applied to appellees or any other landowners in Indiana. In these circumstances, there is no justiciable case or controversy concerning these sections of the Act. See Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S., at 294, n. 36, 101 S.Ct., at 2369, n. 36.
| 78
|
452 U.S. 458
101 S.Ct. 2460
69 L.Ed.2d 158
CONNECTICUT BOARD OF PARDONS et al., Petitioners,v.David DUMSCHAT et al.
No. 79-1997.
Argued Feb. 24, 1981.
Decided June 17, 1981.
Syllabus
After several applications by respondent Dumschat, a life inmate in a Connecticut state prison, for commutation of his life sentence had been rejected by the Connecticut Board of Pardons without explanation, he sued the Board in Federal District Court under 42 U.S.C. § 1983, seeking a declaratory judgment that the Board's failure to provide him with a written statement of reasons for denying commutation violated his rights under the Due Process Clause of the Fourteenth Amendment. Relying chiefly on the fact that the Board had granted approximately three-fourths of all applications for commutation of life sentences, the District Court, after allowing other inmates (also respondents) to intervene and certifying the suit as a class action, held that all prisoners serving life sentences in Connecticut state prisons have a constitutionally protected "entitlement" to a statement of reasons why commutation is not granted. The Court of Appeals affirmed, and then, after its judgment had been vacated by this Court and the case had been remanded for reconsideration in light of Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668, held that the overwhelming likelihood that Connecticut life inmates will be pardoned and released before they complete their minimum terms gave them a constitutionally protected liberty interest in pardon proceedings, and that under Greenholtz a statement of reasons for denying commutation was constitutionally necessary under the Due Process Clause.
Held: The power vested in the Connecticut Board of Pardons to commute sentences conferred no rights on respondents beyond the right to seek commutation. Pp. 463-467.
(a) Far from supporting an "entitlement," Greenholtz, which rejected the claim that a constitutional entitlement to release from a valid prison sentence exists independently of a right explicitly conferred by the State, compels the conclusion that an inmate has "no constitutional or inherent right" to commutation of his life sentence. In terms of the Due Process Clause, a Connecticut felon's expectation that a lawfully imposed sentence will be commuted or that he will be pardoned is no more substantial than an inmate's expectation, for example, that he will not be transferred to another prison; it is simply a unilateral hope. A constitutional entitlement cannot "be created as if by estoppel—merely because a wholly and expressly discretionary state privilege has been granted generally in the past." Leis v. Flynt, 439 U.S. 438, 444, n.5, 99 S.Ct. 698, 701, 702, 58 L.Ed.2d 717. No matter how frequently a particular form of clemency has been granted, the statistical probabilities generate no constitutional protections. Pp. 463-465.
(b) In contrast to the unique Nebraska parole statute which was applied in Greenholtz and which created a right to parole unless certain findings were made, the mere existence of a power to commute under the Connecticut commutation statute—which imposes no limit on what procedure is to be followed, what evidence may be considered, or what criteria are to be applied by the Board of Pardons—and the granting of commutation to many inmates, create no right or "entitlement." P.p. 466-467.
2 Cir., 618 F.2d 216, reversed.
Stephen J. O'Neill, Hartford, Conn., for petitioners.
Stephen Wizner, New Haven, Conn., for respondents.
Chief Justice BURGER delivered the opinion of the Court.
1
The question presented is whether the fact that the Connecticut Board of Pardons has granted approximately three-fourths of the applications for commutation of life sentences creates a constitutional "liberty interest" or "entitlement" in life-term inmates so as to require that Board to explain its reasons for denial of an application for commutation.
2
* In 1964, respondent Dumschat was sentenced to life imprisonment for murder. Under state law, he was not eligible for parole until December 1983.1 The Connecticut Board of Pardons is empowered to commute the sentences of life inmates by reducing the minimum prison term,2 and such a commutation accelerates eligibility for parole.3 The authority of the Board of Pardons derives from Conn.Gen.Stat. § 18-26 (1981), which provides in pertinent part:
3
"(a) Jurisdiction over the granting of, and the authority to grant, commutations of punishment or releases, conditioned or absolute, in the case of any person convicted of any offense against the state and commutations from the penalty of death shall be vested in the board of pardons.
4
"(b) Said board shall have authority to grant pardons, conditioned or absolute, for any offense against the state at any time after the imposition and before or after the service of any sentence." On several occasions prior to the filing of this suit in February 1976, Dumschat applied for a commutation of his sentence. The Board rejected each application without explanation. Dumschat then sued the Board under 42 U.S.C. § 1983, seeking a declaratory judgment that the Board's failure to provide him with a written statement of reasons for denying commutation violated his rights guaranteed by the Due Process Clause of the Fourteenth Amendment.
5
After hearing testimony from officials of the Board of Pardons and the Board of Parole, the District Court concluded (a) that Dumschat had a constitutionally protected liberty entitlement in the pardon process, and (b) that his due process rights had been violated when the Board of Pardons failed to give "a written statement of reasons and facts relied on" in denying commutation. 432 F.Supp. 1310, 1315 (1977). The court relied chiefly on a showing that "at least 75 percent of all lifers received some favorable action from the pardon board prior to completing their minimum sentences" and that virtually all of the pardoned inmates were promptly paroled.4 Id., at 1314. In response to postjudgment motions, the District Court allowed other life inmates to intervene, certified the suit as a class action, and heard additional evidence.5 The court held that all prisoners serving life sentences in Connecticut state prisons have a constitutionally protected expectancy of commutation and therefore that they have a right to a statement of reasons when commutation is not granted. The Court of Appeals affirmed. 593 F.2d 165 (CA2 1979). A petition for a writ of certiorari was filed, and we vacated and remanded for reconsideration in light of Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). 442 U.S. 926, 99 S.Ct. 2854, 61 L.Ed.2d 294 (1979).
6
On remand, the Court of Appeals reaffirmed its original decision, 618 F.2d 216 (CA2 1980), stating:
7
"In marked contrast [to the Nebraska statute considered in Greenholtz], Connecticut's pardons statute contains neither a presumption in favor of pardon nor a list of factors to be considered by the Board of Pardons. Instead, the statute grants the board unfettered discretion in the exercise of its power. The statute offers only the 'mere hope' of pardon; it does not create a legitimate expectation of freedom and therefore does not implicate due process." Id., at 219 (citation omitted).
8
The Court of Appeals also noted that the District Court's holding that the mere possibility of a pardon creates a constitutionally cognizable liberty interest or entitlement was "no longer tenable" in light of Greenholtz. 618 F.2d, at 221; see 442 U.S., at 8-11, 99 S.Ct. at 2104-2105. However, the Court of Appeals then proceeded to conclude that "[t]he overwhelming likelihood that Connecticut life inmates will be pardoned and released before they complete their minimum terms gives them a constitutionally protected liberty interest in pardon proceedings." 618 F.2d, at 220. The Court of Appeals also understood our opinion in Greenholtz to hold that under the Due Process Clause, a brief statement of reasons is "not only constitutionally sufficient but also constitutionally necessary."6 618 F.2d, at 222. On that reading of Greenholtz, the case was remanded to the District Court for a determination of "how many years life inmates must serve before the probability of pardon becomes so significant as to give rise to a protected liberty interest."7
II
A.
9
A state-created right can, in some circumstances, beget yet other rights to procedures essential to the realization of the parent right. See Meachum v. Fano, 427 U.S. 215, 226, 96 S.Ct. 2532, 2539, 49 L.Ed.2d 451 (1976); Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974). Plainly, however, the underlying right must have come into existence before it can trigger due process protection. See, e. g., Leis v. Flynt, 439 U.S. 438, 442-443, 99 S.Ct. 698, 701-702, 58 L.Ed.2d 717 (1979).
10
In Greenholtz, far from spelling out any judicially divined "entitlement," we did no more than apply the unique Nebraska statute. We rejected the claim that a constitutional entitlement to release from a valid prison sentence exists independently of a right explicitly conferred by the State. Our language in Greenholtz leaves no room for doubt:
11
"There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence. The natural desire of an individual to be released is indistinguishable from the initial resistance to being confined. But the conviction, with all its procedural safeguards, has extinguished that liberty right: '[G]iven a valid conviction, the criminal defendant has been constitutionally deprived of his liberty.' " 442 U.S., at 7, 99 S.Ct., at 2103, (emphasis supplied; citation omitted).
12
Greenholtz pointedly distinguished parole revocation and probation revocation cases,8 noting that there is a "critical" difference between denial of a prisoner's request for initial release on parole and revocation of a parolee's conditional liberty. Id., at 9-11, 99 S.Ct. at 2104-2106, quoting, inter alia, Friendly, "Some Kind of Hearing," 123 U.Pa.L.Rev. 1267, 1296 (1975). Unlike probation, pardon and commutation decisions have not traditionally been the business of courts; as such, they are rarely, if ever, appropriate subjects for judicial review.9 Cf. Meachum v. Fano, supra, at 225, 96 S.Ct., at 2538.
13
A decision whether to commute a long-term sentence generally depends not simply on objective factfinding, but also on purely subjective evaluations and on predictions of future behavior by those entrusted with the decision. A commutation decision therefore shares some of the characteristics of a decision whether to grant parole. See Greenholtz, 442 U.S., at 9-10, 99 S.Ct., at 2104-2105. Far from supporting an "entitlement," Greenholtz therefore compels the conclusion that an inmate has "no constitutional or inherent right" to commutation of his sentence.
14
Respondents nevertheless contend that the Board's consistent practice of granting commutations to most life inmates is sufficient to create a protectible liberty interest. They argue:
15
"[T]he State Board has created an unwritten common law of sentence commutation and parole acceleration for Connecticut life inmates. . . . In effect, there is an unspoken understanding between the State Board and inmates. The terms are simple: If the inmate cooperates with the State, the State will exercise its parole power on the inmate's behalf. Both the State and the inmate recognize those terms. Each expects the other to abide by them." Brief for Respondents 17-18.
16
This case does not involve parole, and respondents' argument wholly misconceives the nature of a decision by a state to commute the sentence of a convicted felon. The petition in each case is nothing more than an appeal for clemency. See Schick v. Reed, 419 U.S. 256, 260-266, 95 S.Ct. 379, 382, 385, 42 L.Ed.2d 430 (1974). In terms of the Due Process Clause, a Connecticut felon's expectation that a lawfully imposed sentence will be commuted or that he will be pardoned is no more substantial than an inmate's expectation, for example, that he will not be transferred to another prison;10 it is simply a unilateral hope. Greenholtz, supra, at 11, 99 S.Ct., at 2106, seeLeis v. Flynt, 439 U.S., at 443-444, 99 S.Ct., at 701-702. A constitutional entitlement cannot "be created—as if by estoppel—merely because a wholly andexpressly discretionary state privilege has been granted generously in the past." Id., at 444, n. 5, 99 S.Ct., at 701-702, n. 5. No matter how frequently a particular form of clemency has been granted, the statistical probabilities standing alone generate no constitutional protections; a contrary conclusion would trivialize the Constitution. The ground for a constitutional claim, if any, must be found in statutes or other rules defining the obligations of the authority charged with exercising clemency.
B
17
The Court of Appeals correctly recognized that Connecticut has conferred "unfettered discretion" on its Board of Pardons, but paradoxically—then proceeded to fetter the Board with a halter of constitutional "entitlement." The statute imposes no limit on what procedure is to be followed, what evidence may be considered, or what criteria are to be applied by the Board. Respondents challenge the Board's procedure precisely because of "the absence of any apparent standards." Brief for Respondents 28. We agree that there are no explicit standards by way of statute, regulation, or otherwise.
18
This contrasts dramatically with the Nebraska statutory procedures in Greenholtz, which expressly mandated that the Nebraska Board of Parole "shall" order the inmate's release "unless" it decided that one of four specified reasons for denial was applicable. 442 U.S., at 11, 99 S.Ct., at 2106. The Connecticut commutation statute, having no definitions, no criteria, and no mandated "shalls," creates no analogous duty or constitutional entitlement.
19
It is clear that the requirement for articulating reasons for denial of parole in Greenholtz derived from unique mandates of the Nebraska statutes. Thus, although we noted that under the terms of the Nebraska statute, the inmates' expectancy of parole release "is entitled to some measure of constitutional protection," we emphasized that
20
"this statute has unique structure and language and thus whether any other state statute provides a protectible entitlement must be decided on a case-by-case basis." Id., at 12, 99 S.Ct., at 2106.
21
Moreover, from the standpoint of a reasons requirement, there is a vast difference between a denial of parole—particularly on the facts of Greenholtz—and a state's refusal to commute a lawful sentence. When Nebraska statutes directed that inmates who are eligible for parole "shall" be released "unless" a certain finding has been made, the statutes created a right. By contrast, the mere existence of a power to commute a lawfully imposed sentence, and the granting of commutations to many petitioners, create no right or "entitlement." A state cannot be required to explain its reasons for a decision when it is not required to act on prescribed grounds.
22
We hold that the power vested in the Connecticut Board of Pardons to commute sentences conferred no rights on respondents beyond the right to seek commutation.
23
Reversed.
24
Justice BRENNAN, concurring.
25
I join the Court's opinion. Although respondents have demonstrated a statistical likelihood of obtaining the relief they request, that is not enough to create a protectible liberty interest. Rather, respondents must also show—by reference to statute, regulation, administrative practice, contractual arrangement or other mutual understanding—that particularized standards or criteria guide the State's decisionmakers. See Leis v. Flynt, 439 U.S. 438, 442, 99 S.Ct. 698, 701, 58 L.Ed.2d 717 (1979); Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972); Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). Thestructure of the State's decisionmaking process is thus as significant as the likely result of that process. Respondents have not shown that the Board is required to base its decisions on objective and defined criteria. As inMeachum v. Fano, 427 U.S. 215, 228, 96 S.Ct. 2532, 2540, 49 L.Ed.2d 451 (1976), the decisionmaker can deny the requested relief for any constitutionally permissible reason or for no reason at all. Accordingly, I agree that respondents have no protectible liberty interest in a pardon.
26
Justice WHITE, concurring.
27
I join the Court's opinion and write separately only to observe that neither Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), nor Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976), suggested that state law is the only source of a prisoner's liberty worthy of federal constitutional protection. The opinion in Wolff v. McDonnell pointed out that although a prisoner's "rights may be diminished by the needs and exigencies of the institutional environment, [he] is not wholly stripped of constitutional protections when he is imprisoned for crime. . . . [He] may not be deprived of life, liberty or property without due process of law." 418 U.S., at 555-556, 94 S.Ct., at 2974. The issue in the case was the deprivation of the right to good-time credits, a right which was not guaranteed by the Federal Constitution but was a creation of state law. Wolff held that even such a liberty interest rooted in state law was entitled to constitutional protection.
28
Meachum v. Fano also pointed out that "the convicted felon does not forfeit all constitutional protections by reason of his conviction and confinement in prison. He retains a variety of important rights that the courts must be alert to protect." 427 U.S., at 225, 96 S.Ct., at 2538. The Court went on to hold that a state prisoner has no federal constitutional right protecting him against administrative transfers to another state prison. Neither did state law purport to create a liberty interest entitled to protection under the Fourteenth Amendment. Of course, Justice STEVENS was in dissent in that case; but even there he recognized that the Court's opinion first addressed whether the right asserted was one of the liberty interests retained by convicted felons. We decided that it was not; he thought that it was. But neither Wolff nor Meachum is fairly characterized as suggesting that all liberty interests entitled to constitutional protection must be found in state law.
29
Justice STEVENS, with whom Justice MARSHALL joins, dissenting.
30
"Liberty from bodily restraint always have been recognized as the core of the liberty protected by the Due Process Clause from arbitrary governmental action." Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 18, 99 S.Ct. 2100, 2109, 60 L.Ed.2d 668 (opinion of POWELL, J.). The liberty that is worthy of constitutional protection is not merely "a statutory creation of the State," Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935. Surely the Court stumbles when it states that liberty "must be found in statutes or other rules defining the obligations of the authority charged with exercising clemency," ante, at 2464, or when it implies that liberty has "its roots in state law," Meachum v. Fano, 427 U.S. 215, 226, 96 S.Ct. 2532, 2539, 49 L.Ed.2d 451.
31
To some of us, it is "self-evident" that individual liberty has far deeper roots.1 Moreover, the deprivation of liberty that follows conviction of a criminal offense is not total; the individual possesses a residuum of constitutionally protected liberty even while he is in the legal custody of the State.2 The question this case presents is not whether these respondents are mere slaves, wholly divested of any constitutionally protected interest in liberty; rather, the question is whether the decision by the Connecticut Board of Pardons refusing to commute their life sentences constitutes a deprivation of liberty entitling respondents to the protection of the Due Process Clause.
32
The facile answer to that question is that the distinction between a refusal to grant freedom on the one hand and the imposition of a sentence or the revocation of a parole on the other forms the basis for a determination whether due process is implicated. Only the imposition of sentence or revocation of parole is obviously a deprivation of liberty. But in practice, as Justice POWELL has explained, that distinction is far less satisfactory than it first appears.3 In my judgment, it provides an insufficient answer to the question presented by this case because the distinction does not correctly evaluate the character of the deprivation of liberty that occurs when a person is convicted of a crime.
33
If the conviction were effective to terminate the defendant's liberty, he would thereafter retain no constitutional right to procedural safeguards against arbitrary action. The process of sentencing, parole release, parole revocation, and ultimate discharge could all be totally arbitrary. But no State asserts such total control over the convicted offender, and this Court has unequivocally held that the Constitution affords protection at different stages of the postconviction process.4 The basic reason the constitutional protection applies at these stages is that liberty itself survives to some extent and its deprivation is a continuous process rather than an isolated event.
34
This case involves the State of Connecticut's process for determining when a relatively small group of serious offenders will be released from custody. Routinely that process includes three determinations: the judge imposes a life sentence; the Board of Pardons in due course commutes that sentence; and finally the Board of Parole discharges the prisoner from custody. Each of these three decisions is a regular and critical component of the decisionmaking process employed by the State of Connecticut to determine the magnitude of its deprivation of the prisoner's liberty.5 In my opinion the Due Process Clause applies to each step and denies the State the power to act arbitrarily.6
35
Whether the refusal to provide the inmates with a statement of reasons is a procedural shortcoming of constitutional magnitude is, admittedly, fairly debatable. Judges often decide difficult and important cases without explaining their reasons, and I would not suggest that they thereby commit constitutional error. But the ordinary litigant has other substantial procedural safeguards against arbitrary decisionmaking in the courtroom. The prison inmate has few such protections. Indeed, as in this case, often he is not even afforded the protection of written standards to govern the exercise of the powers of the Board of Pardons. His protection is somewhat analogous to that of the litigant in the earliest days of our common-law history. The judges then were guided by few written laws, but developed a meaningful set of rules by the process of case-by-case adjudication. Their explanations of why they decided cases as they did provided guideposts for future decisions and an assurance to litigants that like cases were being decided in a similar way. Many of us believe that those statements of reasons provided a better guarantee of justice than could possibly have been described in a code written in sufficient detail to be fit for Napoleon.
36
As Justice MARSHALL has pointed out, "the obligation to justify a decision publicly would provide the assurance, critical to the appearance of fairness, that the Board's decision is not capricious," see Greenholtz, 442 U.S., at 40, 99 S.Ct., at 2121 (dissenting opinion). I therefore believe the Court of Appeals correctly concluded that in this context a brief statement of reasons is an essential element of the process that is due these respondents.
37
Accordingly, I respectfully dissent.
1
A Connecticut inmate serving a life sentence, imposed before 1971, that does not have a specified minimum term must serve a minimum of 25 years in prison, less a maximum of 5 years' good-time credits, unless the Board of Pardons commutes the sentence. See Conn.Gen.Stat. § 54-125 (1981).
Effective in 1971, the sentencing judge must specify a minimum term, which may be as low as 10 years or as high as 25 years. Conn.Gen.Stat. § 53a-35(c)(1) (1981).
2
The Board of Pardons also has the power to grant immediate release in the form of an absolute pardon, but according to the District Court, that power has not been employed in recent history. 432 F.Supp. 1310, 1313 (D.C. Conn. 1977).
The District Court noted that by virtue of this statute, Connecticut "stands outside the traditional scheme of clemency through application to the state's chief executive." The Governor of Connecticut has only the power to grant temporary reprieves. Id., at 1312.
3
Parole determinations are made by the Board of Parole, a separate body. This case does not involve parole procedure; it involves only denials of commutations.
4
Of the inmates whose minimum sentences have been commuted by the Board of Pardons, the Board of Parole has paroled approximately 90% during the first year of eligibility, and all have been paroled within a few years. App. 33, 39. The Chairman of the Board of Parole testified that "no more than 10 or 15 per cent" of Connecticut's life inmates serve their 20-year minimum terms. Id., at 31.
5
On the day that the District Court entered its declaratory judgment, the Board commuted Dumschat's sentence to time served and granted him immediate release. The Board then moved to dismiss the suit as moot. The District Court denied the Board's motion and permitted three other inmates to intervene. Those inmates were serving life terms for murder and had been denied commutation without statements of reasons. Two of them are still serving their sentences. According to respondents, there are approximately 35 persons in the certified class, which consists of all "inmates of the State of Connecticut who are currently serving sentences of life imprisonment [without court-imposed minimum terms] and who have been, or who will be, denied pardons during their current terms of incarceration" by the Board of Pardons. App. to Pet. for Cert. 21a; Brief for Petitioners ii; Tr. of Oral Arg. 36; see n. 1, supra.
6
In the cited passage of Greenholtz, we said: "The Nebraska [statutory] procedure affords an opportunity to be heard, and when parole is denied it informs the inmate in what respects he falls short of qualifying for parole; this affords the process that is due under these circumstances. The Constitution does not require more." 442 U.S., at 16, 99 S.Ct., at 2108.
7
The Court of Appeals remarked that "[o]nly after this period has elapsed are lifers entitled to due process safeguards in the pardon process." 618 F.2d, at 221. Because it believed that every life inmate who is denied a pardon is constitutionally entitled to a statement of reasons, the District Court did not make such a determination prior to the decision of the Court of Appeals that is now before us. Id., at 220-221; see App. to Pet. for Cert. 25a.
8
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).
9
Respondents have not raised any equal protection claim.
10
See Meachum v. Fano, 427 U.S. 215, 228, 96 S.Ct. 2532, 2540, 49 L.Ed.2d 451 (1976).
1
"It is self-evident that all individuals possess a liberty interest in being free from physical restraint." Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 23, 99 S.Ct. 2100, 2112, 60 L.Ed.2d 668 (MARSHALL, J., dissenting).
"If man were a creature of the State, the analysis would be correct. But neither the Bill of Rights nor the laws of sovereign States create the liberty which the Due Process Clause protects. The relevant constitutional provisions are limitations on the power of the sovereign to infringe on the liberty of the citizen. The relevant state laws either create property rights, or they curtail the freedom of the citizen who must live in an ordered society. Of course, law is essential to the exercise and enjoyment of individual liberty in a complex society. But it is not the source of liberty, and surely not the exclusive source.
"I had thought it self-evident that all men were endowed by their Creator with liberty as one of the cardinal unalienable rights. It is that basic freedom which the Due Process Clause protects, rather than the particular rights or privileges conferred by specific laws or regulations." Meachum v. Fano, 427 U.S. 215, 230, 96 S.Ct. 2532, 2541, 49 L.Ed.2d 451 (STEVENS, J., dissenting).
2
See Meachum v. Fano, supra, at 231-233, 96 S.Ct., at 2541-2542.
3
"The Court today, however, concludes that parole release and parole revocation 'are quite different,' because 'there is a . . . difference between losing what one has and not getting what one wants,' ante, at 9, 10 [99 S.Ct., at 2105]. I am unpersuaded that this difference, if indeed it exists at all, is as significant as the Court implies. Release on parole marks the first time when the severe restrictions imposed on a prisoner's liberty by the prison regimen may be lifted, and his behavior in prison often is molded by his hope and expectation of securing parole at the earliest time permitted by law. Thus, the parole-release determination may be as important to the prisoner as some later, and generally unanticipated, parole-revocation decision. Moreover, whatever difference there may be in the subjective reactions of prisoners and parolees to release and revocation determinations is not dispositive. From the day that he is sentenced in a State with a parole system, a prisoner justifiably expects release on parole when he meets the standards of eligibility applicable within that system. This is true even if denial of release will be a less severe disappointment than revocation of parole once granted." Greenholtz v. Nebraska Penal Inmates, supra, at 19-20, 99 S.Ct., at 2109-2110 (opinion of POWELL, J.).
4
Thus the Court has held that the Due Process Clause protects the prisoner at the sentencing stage. Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336, in probation revocation proceedings, Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656, and in parole revocation proceedings, Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484. Moreover, the Constitution has been applied to other issues affecting prisoners. See, e. g., Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (right to assistance in the filing of legal papers); Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (First Amendment rights); Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (right to practice religious faith); Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (right to file petition for writ of habeas corpus); Cooper v. Pate, 378 U.S. 546, 84 S.Ct., 1733, 12 L.Ed.2d 1030 (right to purchase religious materials); Ex parte Hull, 312 U.S. 546, 61 S.Ct. 640, 85 L.Ed. 1034 (right to petition federal court for writ of habeas corpus). Cf.Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (sentence may violate Eighth Amendment).
5
As the Court recognizes, ante, at 461, at least 75% of all life inmates receive some favorable action from the Board of Pardons. The Board of Parole paroles approximately 90% of these inmates during the first year after the Board of Pardons commutes their minimum sentences, and all are paroled within a few years. Ante, at 461, n.4.
6
The fact that the petitioner agency is given the title "Board of Pardons" does not, of course, make its work the equivalent of the exercise by a chief executive of the occasional totally discretionary power to grant pardons in isolated cases. As the record in this case makes clear, the petitioner commutes sentences with roughly the same frequency that parole boards make parole release determinations.
| 34
|
452 U.S. 549
101 S.Ct. 2510
69 L.Ed.2d 226
Roger D. MONROE, Petitioner,v.The STANDARD OIL COMPANY.
No. 80-298.
Argued March 4, 1981.
Decided June 17, 1981.
Syllabus
The Vietnam Era Veterans' Readjustment Assistance Act of 1974 provides in 38 U.S.C. § 2021(b)(3) that any employee of a private employer "shall not be denied retention in employment or any promotion or other incident or advantage of employment because of any obligation as a member of a reserve component of the Armed Forces." Petitioner was an employee in respondent's refinery, which operated 24 hours a day, every day of the year, and whose employees worked five 8-hour days weekly but in a different 5-day sequence each week. As a military reservist, petitioner had to attend training with his unit one weekend a month and for two weeks each summer. On a number of weekends, petitioner was required to attend training on days when he was scheduled to work at the refinery, and in most instances he was unable to exchange shifts with other employees as he was permitted to do. Respondent provided him with leaves of absence to attend training, as required by 38 U.S.C. § 2024(d), but it did not pay him for the hours he did not work nor did it take steps to permit him to make up those hours by working outside the normal schedule. Petitioner brought an action against respondent in Federal District Court, alleging, inter alia, that respondent had violated § 2021(b)(3). The District Court granted summary judgment for petitioner on the ground that respondent, by not scheduling petitioner for a full 40-hour week on those occasions when he was unable to exchange shifts, had denied him "an incident or advantage of employment" within the meaning of § 2021(b)(3), and awarded him an amount for wages lost on those "work dates when an accommodation should have been made." The Court of Appeals reversed, holding that respondent had taken no discriminatory action proscribed by § 2021(b)(3).
Held : Section 2021(b)(3) does not require an employer to make work-scheduling accommodations for employee-reservists not made for other employees. Pp. 554-566.
(a) The legislative history indicates that § 2021(b)(3) was enacted for the significant but limited purpose of protecting the employee-reservist from discrimination like discharge and demotion motivated solely by reserve status. There is nothing in § 2021(b)(3) or its legislative history to indicate that Congress even considered imposing an obligation on employers to provide a special work-scheduling preference, but rather the history suggests that Congress did not intend employers to provide special benefits to employee-reservists not generally made available to other employees. Pp. 554-562.
(b) While this case involves absences for weekend duty, § 2021(b)(3) refers to "any obligation as a member of a Reserve component." Accordingly, there is no principled way of distinguishing between an employer's obligation to make scheduling accommodations for weekends as opposed to, for example, annual 2-week training periods, or even longer periods of training or duty. There is nothing in the legislative history to indicate that Congress intended reservists to be entitled to all "incidents and advantages of employment" accorded during their absence to working employees, including regular time and overtime pay. P.p. 562-563.
(c) There is nothing in the statute or its history to support petitioner's contention that § 2021(b)(3) only requires an employer under the circumstances of this case to make a "reasonable accommodation" to employee-reservists. Such a "reasonable accommodation" has already been made in § 2024(d) by requiring employers to grant a leave of absence to reservists whose duties force them to miss time at work. To say that § 2021(b)(3) would be of little significance unless a "reasonable accommodation" requirement is imposed, ignores the fact that the nondiscrimination requirements of the section already impose substantial obligations on employers by precluding them from ridding themselves of the inconveniences and productivity losses resulting from employee-reservists' absence by discharging or otherwise disadvantaging such employees solely because of their military obligations. Pp. 563-565.
6th Cir. 613 F.2d 641, affirmed.
Alan I. Horowitz, Washington, D.C., for petitioner.
Paul S. McAuliffe, Cleveland, Ohio, for respondent.
Justice STEWART delivered the opinion of the Court.
1
The Court of Appeals for the Sixth Circuit concluded that 38 U.S.C. § 2021(b)(3), a provision of the Vietnam Era Veterans' Readjustment Assistance Act of 1974, does not require an employer to provide preferential scheduling of work hours for an employee who must be absent from work to fulfill his military reserve obligations. 613 F.2d 641. We granted certiorari to consider the petitioner's contention that an employer has a statutory duty to make work-scheduling accommodations for reservist-employees not made for other employees, whenever such accommodations reasonably can be accomplished. 449 U.S. 949, 101 S.Ct. 352, 66 L.Ed.2d 213.1
2
* In 1975 and 1976, the years pertinent to this litigation, the petitioner was a full-time employee in the respondent's continuous process refinery in Lima, Ohio. The refinery was operated 24 hours a day, 7 days a week, 365 days a year. To insure that the burdens of weekend and shift work would be equitably divided among its employees over the course of a year, the respondent scheduled its employees to work five 8-hour days in a row weekly, but in a different 5-day sequence each week. Under the respondent's collective agreement with its union, however, an employee could, with the acquiescence of his foreman and if the change did not require the payment of overtime, exchange shifts with another employee.
3
During the same period, the petitioner was a military reservist,2 and had to attend training with his unit one weekend a month and for two weeks each summer. On a number of weekends, the petitioner was required to attend training on days when he was scheduled to work at the refinery. Although the petitioner was able on four of these occasions to exchange shifts with other employees, he was unable to make such an exchange in most instances. The respondent provided him with leaves of absence to attend training, as 38 U.S.C. § 2024(d)3 required it to do, but it did not pay him for the hours he did not work, nor did it take steps to permit him to make up those hours by working outside his normal schedule. When the petitioner was on a leave of absence and could not arrange a switch with another employee, the respondent would make arrangements to fill the vacancy created by the petitioner's absence, arrangements often requiring the payment of overtime wages to the substitute.
4
In 1976, the petitioner4 brought this action against the respondent alleging that it had violated the provisions of 38 U.S.C. §§ 2021(b)(3)5 and 2024(d). Noting that the first of these sections provides that an employer may not deny a military reservist in his employ any "incident or advantage of employment" because of the employee's obligations to the Reserves, and finding that "being scheduled for a full forty hour week at the [respondent's] refinery constitutes an incident or advantage of employment," the District Court for the Northern District of Ohio granted summary judgment to the petitioner. 446 F.Supp. 616, 618, 619. The court awarded petitioner $1,086.72 for wages lost on those "work dates when an accommodation should have been made." Id., at 619.6
5
The Court of Appeals for the Sixth Circuit reversed. 613 F.2d 641. First, it determined that the respondent had met the requirements of § 2024(d).7 It noted that this section "guarantees terms and conditions of reemployment to reservists returning from inactive duty training," but found that "[i]t does not, however, protect reservists from discrimination by their employers between training assignments." Id., at 643-644.
6
Next, the Court of Appeals rejected the District Court's interpretation of § 2021(b)(3). It held that this section "merely requires that reservists be treated equally or neutrally with their fellow employees without military obligations." Id., at 646. The appellate court then concluded that the respondent had taken no discriminatory action that is proscribed by § 2021(b)(3):
7
"The requirement of equal treatment was met in the present case. The parties agreed that appellee was regularly scheduled for forty-hour workweeks, as were his fellow employees. Further, Monroe was scheduled for weekend work in accordance with Sohio's established practice of rotating shifts to insure that all employees would work approximately an equal number of weekend days. Finally, he was treated the same as his coworkers with regard to the right to exchange shifts with other employees." Id., at 646.
II
8
This case presents the first occasion this Court has had to address issues arising from the statutory provisions, codified at 38 U.S.C. § 2021 et seq., specifically dealing with military reservists.8 We have, however, frequently interpreted the somewhat analogous statutory provisions entitling the returning regular veteran to reinstatement with his "seniority, status and pay" intact, 38 U.S.C. § 2021(a), most recently in Coffy v. Republic Steel Corp., 447 U.S. 191, 100 S.Ct. 2100, 65 L.Ed.2d 53, and Alabama Power Co. v. Davis, 431 U.S. 581, 97 S.Ct. 2002, 52 L.Ed.2d 595.
9
Statutory re-employment rights for veterans date from the Nation's first peacetime draft law, passed in 1940, which provided that a veteran returning to civilian employment from active duty was entitled to reinstatement to the position that he had left or one of "like seniority, status, and pay." 38 U.S.C. § 2021(a). In 1951, in order to strengthen the Nation's Reserve Forces, Congress extended reinstatement rights to employees returning from training duty. See Pub. L. 51, ch. 144, § 1(s), 65 Stat. 75, 86-87. Thereafter, the Reserve Forces Act of 1955, Pub.L. 305, ch. 665, § 262(f), 69 Stat. 598, 602, provided that employees returning from active duty of more than three months in the Ready Reserve were entitled to the same employment rights as inductees, with limited exceptions. In 1960, these re-employment rights were extended to National Guardsmen, Pub.L. 86-632, 74 Stat. 467. See 38 U.S.C. § 2024(c). In addition, a new section, now codified at 38 U.S.C. § 2024(d), was enacted in 1960 to deal with problems faced by employees who had military training obligations lasting less than three months. This section provides that employees must be granted a leave of absence for training and, upon their return, be restored to their position "with such seniority, status, pay, and vacation" as they would have had if they had not been absent for training.
10
Section 2024(d) closely paralleled 38 U.S.C. § 2021(a), the latter section ensuring the reinstatement of regular veterans returning from active duty.9 But § 2024(d) did not provide reservists with protection against discharges, demotions, or other discriminatory conduct once reinstated. Section 2021(b)(2), on the other hand, provided regular veterans returning from active duty one year's "protection . . . against certain types of discharges or demotions that might rob the veteran's reemployment of its substance." Oakley v. Louisville & Nashville R. Co., 338 U.S. 278, 285, 70 S.Ct. 119, 123, 94 L.Ed. 87. The legislative history of § 2021(b)(3) indicates that it was designed to provide similar protection to employee-reservists.10
B
11
Section 2021(b)(3) provides in pertinent part:
12
"Any person who [is employed by a private employer] shall not be denied retention in employment or any promotion or other incident or advantage of employment because of any obligation as a member of a Reserve component of the Armed Forces."
13
The Senate Report on the bill that became §2021(b)(3), stated that the purpose of the enactment was 'to prevent reservists and National Guardsmen not on active duty who must attend weekend drills or summer training from being discriminated against in employment because of their Reserve membership....' S. Rep. No. 1 477, 90th Cong., 2d Sess., 1-2 (1968). The Report explained that '[e]mployment practices that discriminate against employees with Reserve obligations have become an increasing problem in recent years. Some of these employees have been denied promotions because they must attend weekly drills or summer training and others have been discharged because of these obligations.... [T]he bill is intended to protect members of the Reserve components of the Armed Forces from such practices.' Id., at 2. The protection was to be accomplished by entitling reservists 'to the same treatment afforded their co-workers not having such military obligations....' Ibid.
14
The House Report announced the same motivation. The bill was described as providing "job protection for employees with obligations as members of a reserve component." H. R. Rep. No. 1303, 90th Cong., 2d Sess., 3 (1968). The House Report elaborated as follows:
15
"Section (1) amplifies existing law to make clear that reservists not on active duty, who have a remaining Reserve obligation, whether acquired voluntarily or involuntarily, will nonetheless not be discriminated against by their employees [sic] soley [sic] because of such Reserve affiliation.
16
"It assures that these reservists will be entitled to the same treatment afforded their coworkers without such military obligation.
17
"The law does not now protect these reservists against discharge without cause, as it does with inductees and enlistees, who have 1-year protection, and initial active duty for training reservists, who have 6 months' protection." Ibid. (emphasis added).
18
The legislation was originally proposed by the Department of Labor. Accordingly, the testimony of Hugh W. Bradley, Director of the Office of Veterans' Reemployment Rights of the Labor Department, who was the chief administration spokesman for the provision, is instructive. He described the relevant portions of the legislation to the House Committee on Armed Services:
19
"The first provision of the bill deals with a problem that has been increasingly difficult in the past few years. It is designed to enable reservists and guardsmen who leave- their jobs to perform training in the Armed Forces, to retain their employment and to enjoy all of the employment opportunities and benefits accorded their coworkers who do not have military training obligations. The law does not now protect them against discharge without cause as it does inductees and enlistees, who have 1-year protection, and initial active duty for training reservists, who have 6 months' protection." 1966 House Hearings, at 5312 (emphasis added).
20
See also 1968 House Hearings, at 7471.
21
Testimony by Rear Admiral Burton H. Shupper, U.S.N., appearing on behalf of the Department of Defense, also reflected the purposes behind the enactment:
22
"The other aspect of H. R. 11509 is the provision that employees shall not be denied retention in employment or advantages of employment because of any obligation as a member of a Reserve component of the Armed Forces. After the Berlin and Cuba callups, we received information from our Reserve community that a significant number of reservists were receiving indications that opportunities for advancement and retention in civilian employment would favor those who appear to offer their employers more continuity of services, namely those in the Standby Reserve or those with no Reserve status. In fairness, we must emphasize that this reaction on the part of employers appears to be the exception not the rule and, we believe, is generally not based upon unpatriotic motives but rather on the competitive spirit of business." 1966 House Hearings, at 5315.
23
The legislative history thus indicates that § 2021(b)(3) was enacted for the significant but limited purpose of protecting the employee-reservist against discriminations like discharge and demotion, motivated solely by reserve status. Congress wished to provide protection to reservists comparable to that already protecting the regular veteran from "discharge without cause"—to insure that employers would not penalize or rid themselves of returning reservists after a mere pro forma compliance with § 2024(d).11 and the consistent focus of the administration that proposed the statute, and of the Congresses that considered it, was on the need to protect reservists from the temptation of employers to deny them the same treatment afforded their co-workers without military obligations. The petitioner's contention that his employer was obliged to provide work-schedule preferences not available to other employees must be considered against this legislative background.
C
24
The petitioner's argument is that the respondent corporation was obligated to make special efforts to schedule his work hours so he would avoid any lost time by reason of his reserve obligations. He does not allege that the respondent singled him out unfairly, or in any other way discriminated against him vis-a-vis other employees in the scheduling of work. Indeed, the petitioner's argument would require work-assignment preferences not available to any nonreservist employee at the respondent's refinery.
25
The problem with the petitioner's position is that there is nothing in § 2021(b)(3) or its legislative history to indicate that Congress ever even considered imposing an obligation on employers to provide a special work-scheduling preference. Indeed, the legislative history, set out above, strongly suggests that Congress did not intend employers to provide special benefits to employee-reservists not generally made available to other employees.12 Congress, and the administration spokesman for the legislation, stated explicitly that reservists were to be entitled "to the same treatment afforded their co-workers not having such military obligations. . . ." S. Rep. No. 1477, 90th Cong., 2d Sess., 2 (1968); see also H. R. Rep. No. 1303, 89th Cong., 2d Sess., 3 (1966); 1968 House Hearings, at 7471 (testimony of Hugh W. Bradley).
26
The strongest language culled by the petitioner from the legislative history to support his argument is a single passage in the 1966 House Report on H. R. 11509: "If these young men are essential to our national defense, then certainly our Government and employers have a moral obligation to see that their economic well being is disrupted to the minimum extent possible." H. R. Rep. No. 1303, 89th Cong., 2d Sess., 3 (1966).13 But this generalized statement appears only in the 1966 House Report; it is not contained in either the House or the Senate Report that accompanied the bill as finally enacted in the 90th Congress. Compare ibid. with H. R. Rep. No. 1303, 90th Cong., 2d Sess., 3, 8 (1968), and S. Rep. No. 1477, 90th Cong., 2d Sess., 3 (1968). Moreover, language in the same 1966 House Report specifically indicated that only a nondiscrimination measure was intended: "It should be noted that the only substantive changes in existing law relate to . . . the prohibition against employer discrimination against reservists who participate in the Reserve or National Guard programs." H. R. Rep. No. 1303, 89th Cong., 2d Sess., 4 (1966).
27
It appears that the origin of the passage the petitioner relies on is a statement by Hugh W. Bradley before the House Committee in 1966. See 1966 House Hearings, at 5313. Yet this passage disappeared from Bradley's presentation to both the House and Senate Committees in the subsequent Congress. See 1968 House Hearings, at 7471, 7472; 1968 Senate Hearings, at 2, 3. And in all three of his congressional appearances, Bradley made it abundantly clear that the purpose of the legislation was to protect employee reservists from discharge, denial of promotional opportunities, or other comparable adverse treatment solely by reason of their military obligations; there was never any suggestion of employer responsibility to provide preferential treatment. In any case, the language relied on by the petitioner hardly supports a finding that Congress intended § 2021(b)(3) to convert a generalized moral obligation into a specific legal duty.
D
28
Aside from a lack of support in legislative history, the petitioner's argument suffers other flaws. While the present case involves absences for weekend duty, the statutory language is not so limited; it refers to "any obligation as a member of a Reserve component. . . ." Section 2021(b)(3) has been applied, for example, to 2-week summer camps, Carney v. Cummins Engine Co., 602 F.2d 763 (CA7); 6-week training sessions, Carlson v. New Hampshire Dept. of Safety, 609 F.2d 1024 (CA1); and two-month training sessions, Peel v. Florida Dept. of Transportation, 443 F.Supp. 451 (ND Fla.), aff'd, 600 F.2d 1070 (CA5). Accordingly, there is no principled way of distinguishing between an employer's obligation to make scheduling accommodations for weekends as opposed to, for example, annual 2-week training periods, or even longer periods of training or duty. And certainly there is nothing in the legislative history that would indicate Congress intended that reservists were to be entitled to all "incidents and advantages of employment" accorded during their absence to working employees, including regular time and overtime pay.14
29
The petitioner concedes that it might be impossible, or at least unduly burdensome, to accommodate a reservist's absences for periods as long as the mandatory 2-week summer training session. Perhaps for this reason, he attempts to limit the obvious implications of his theory by arguing that "the statute only requires an employer to take reasonable steps to accommodate the reservists." But, as is true of the petitioner's more general affirmative obligation theory, there is nothing in the statute or its history to support such a notion.
30
Indeed, a "reasonable accommodation" to employee-reservists because of missed worktime has already been made by Congress in § 2024(d). There, Congress decided what allowance employers should make to reservists whose duties force them to miss time at work: provide them a leave of absence. If Congress had wanted to impose an additional obligation upon employers, guaranteeing that employee-reservists have the opportunity to work the same number of hours, or earn the same amount of pay that they would have earned without absences attributable to military reserve duties, it could have done so expressly.15 By contrast, there is no evidence that the Congress that enacted § 2021(b)(3) showed any concern with the problem of missed work hours, let alone imposed any duty to "take reasonable steps to accommodate the reservists" in this or any other respect.
31
The petitioner makes no suggestion why his theory of "reasonable accommodation" should apply only to "incidents or advantages of employment," and not to the other provisions of § 2021(b)(3): retention and promotion. Presumably, if it applies to one provision of the section, it should apply to them all. But if an employer could, for example, defend a denial of promotion to an employee-reservist because the promotion could not be "reasonably accommodated," the protection afforded by § 2021(b)(3) would clearly be reduced, if not altogether eliminated.
32
Finally, the petitioner suggests that § 2021(b)(3) must have the meaning he attributes to it, because the section would otherwise be of little significance. But the nondiscrimination requirements of the section impose substantial obligations upon employers. The frequent absences from work of an employee-reservist may affect productivity and cause considerable inconvenience to an employer who must find alternative means to get necessary work done. Yet Congress has provided in § 2021(b)(3) that employers may not rid themselves of such inconveniences and productivity losses by discharging or otherwise disadvantaging employee-reservists solely because of their military obligations.
III
33
This Court does not sit to draw the most appropriate balance between benefits to employee-reservists and costs to employers. That is the responsibility of Congress. If Congress desires to amend § 2021(b)(3) to require special work-hour scheduling for military reservists where it is reasonably possible, it is free to do so. But we must deal with the law as it is.
34
The respondent did not deny the petitioner anything that he would have received had he not been a reservist. He was scheduled for 40 hours work a week, as all other employees in the refinery were.16 He was assigned the same burden of weekend and shift work as were his fellow employees. And he was allowed to exchange shifts in the manner accepted by his union and the respondent, just as all other employees were.17 Accordingly, the judgment of the Court of Appeals is affirmed.
35
It is so ordered.
36
Chief Justice BURGER, with whom Justice BRENNAN, Justice BLACKMUN, and Justice POWELL join, dissenting.
37
The Court today unduly restricts the employment protections accorded Ready Reservists and National Guardsmen by Congress. In my view, the Court's decision is based upon an erroneous interpretation of 38 U.S.C. § 2021(b)(3) and, in effect, allows employees to be penalized for their service in the military contrary to congressional intent.
38
* A.
39
As in any case involving statutory construction, "our starting point must be the language employed by Congress." Reiter v. Sonotone Corp., 442 U.S. 330, 337, 99 S.Ct. 2326, 2330, 60 L.Ed.2d 931 (1979). Title 38 U.S.C. § 2021(a) requires that a veteran returning to civilian employment after military duty be restored to the position he previously held or to "a position of like seniority, status, and pay." In addition, 38 U.S.C. § 2021(b)(1) provides that the veteran's reinstatement must be "without loss of seniority" and that he "shall not be discharged from such position without cause within one year after such restoration or reemployment." See Oakley v. Louisville & Nashville R. Co., 338 U.S. 278, 284-285, 70 S.Ct. 119, 122-23, 94 L.Ed. 87 (1949). Similar safeguards are granted in 38 U.S.C. § 2024(c) to members of "a Reserve component of the Armed Forces" who have military obligations lasting more than three months. As to reservists whose commitments are less than three months, 38 U.S.C. § 2024(d) provides in pertinent part:
40
"Any employee . . . shall upon request be granted a leave of absence by such person's employer for the period required to perform active duty for training or inactive duty training in the Armed Forces of the United States. Upon such employee's release from a period of such active duty for training or inactive duty training, or upon such employee's discharge from hospitalization incident to that training, such employee shall be permitted to return to such employee's position with such seniority, status, pay, and vacation as such employee would have had if such employee had not been absent for such purposes."
41
Additional guarantees for reservists are contained in 38 U.S.C. § 2021(b)(3), on which petitioner bases his claim for nonconflicting work hours. Section 2021(b)(3) states:
42
"Any person who [is employed by the Federal Government, a state government, or a private employer] shall not be denied retention in employment or any promotion or other incident or advantage of employment because of any obligation as a member of a Reserve component of the Armed Forces." (Emphasis added.)
43
The Court concludes that "§ 2021(b)(3) was enacted for the . . . limited purpose of protecting the employee-reservist against discriminations like discharge and demotion motivated solely by reserve status." Ante, at 559. Yet the plain language of the statute belies such a narrow interpretation. Although § 2021(b)(3) proscribes the termination of a reservist because of his military obligations, it also expressly prohibits the denial of "any promotion or other incident or advantage of employment." Such protection is clearly broader than that enjoyed by returning veterans under § 2021(b)(1), but is understandable because the reservist has continuing military commitments requiring his absence that may disadvantage him in his employment.
B
44
Just as the language of § 2021(b)(3) does not demonstrate a congressional intent to confine the statute's application to "discriminations like discharge and demotion," neither does the legislative history. When the bill, H.R. 11509, 89th Cong., 1st Sess. (1965), that included what eventually became 38 U.S.C. § 2021(b)(3) was first introduced, Subcommittee No. 3 of the House Committee on Armed Services held hearings and the full Committee thereafter reported favorably on the bill. The Committee's Report, which reflected the hearing testimony of Hugh W. Bradley, Director of the Office of Veterans' Reemployment Rights of the Department of Labor, stated:
45
"Employment practices which disadvantage employees with Reserve obligations have become an increasing problem in recent years. Paragraph 1 of the bill will protect members of the Reserve components of the Armed Forces, including the National Guard, from such practices. It is designed to enable reservists and guardsmen who leave their jobs to perform training in the Armed Forces to retain their employment and to enjoy all of the employment opportunities and benefits accorded their coworkers who do not . . . have a Reserve obligation.
46
"It assures that these reservists will be entitled to the same treatment afforded their coworkers without such military obligations . . . .
47
"The law does not now protect these reservists against discharge without cause as it does with inductees and enlistees, who have 1-year protection, and initial active duty for training reservists, who have 6 months' protection.
48
"To give the reservist a specific period of protection after each tour of training duty would be to perpetuate him in his position indefinitely. The new section . . . would not follow this approach but instead provides that an employee shall not be denied retention in his employment or any promotion or other incident or advantage of employment solely because of any obligation as a member of a Reserve component of the Armed Forces.
49
* * * * *
50
"If these young men are essential to our national defense, then certainly our Government and employers have a moral obligation to see that their economic well being is disrupted to the minimum extent possible." H.R.Rep.No. 1303, 89th Cong., 2d Sess., 3 (1966) (emphasis added).
51
Although the bill was passed by the House, 112 Cong.Rec. 5017 (1966), the Senate took no action on the measure during the 89th Congress.
52
The bill was reintroduced in the 90th Congress. H.R. 1093, 90th Cong., 1st Sess. (1967); S. 2561, 90th Cong., 1st Sess. (1967). Hearings again were held before Subcommittee No. 3 of the House Committee on Armed Services, at which a statement expressing the view of the American Legion was entered on the record:
53
"The American Legion feels very strongly that employees with reserve obligations who are members of the National Guard and the Reserves . . . should be afforded all the employment opportunities and benefits as those who do not have training obligations . . . .
54
"[The new section] would prevent discharge from employment without cause because of membership in the National Guard or Reserves, and would also prevent discrimination in such areas as promotion, training opportunities and pay increases." Hearings on H.R. 1093 before Subcommittee No. 3 of the House Committee on Armed Services, 90th Cong., 1st Sess., 7477 (1968), U.S.Code Cong. & Admin.News 1968, p. 3421 (emphasis added).
55
Noting that protection of "reservists and guardsmen from being disadvantaged in employment because of their military obligations" was one of the purposes of the bill, the full Committee's favorable Report explained that "[s]ection (1) amplifies existing law to make clear that reservists not on active duty, who have a remaining Reserve obligation, whether acquired voluntarily or involuntarily, will nonetheless not be discriminated against by their employees [sic] soley [sic] because of such Reserve affiliation." H.R.Rep.No. 1303, 90th Cong., 2d Sess., 3 (1968) (emphasis added).
56
Following passage of the bill by the House, 114 Cong.Rec. 11779 (1968), the Senate Committee on Armed Services held hearings and issued a Report recommending enactment. The Report repeated the themes which run through every congressional expression on the statutory proposal:
57
"This bill is intended . . . to prevent reservists and National Guardsmen not on active duty who must attend weekly drills or summer training from being discriminated against in employment because of their Reserve membership . . . .
58
* * * * *
59
"Employment practices that discriminate against employees with Reserve obligations have become an increasing problem in recent years. Some of these employees have been denied promotions because they must attend weekly drills or summer training and others have been discharged because of these obligations. Section 1 of the bill is intended to protect members of the Reserve components of the Armed Forces from such practices. It provides that these reservists will be entitled to the same treatment afforded their coworkers not having such military obligations by requiring that employees with Reserve obligations 'shall not be denied retention in employment or other incident or advantage of employment because of any obligation as a member of a Reserve component of the Armed Forces of the United States.' " S.Rep.No. 1477, 90th Cong., 2d Sess., 1-2, 3421 (1968).
60
The bill passed the Senate, 114 Cong.Rec. 24017 (1968), and became law on August 17, 1968. Pub.L. 90-491, 82 Stat. 790.
61
The legislative history of § 2021(b)(3) admittedly reveals an intent to protect reservists from discharge because of their short-term absences, just as §§ 2021(b)(1) and 2024(c) safeguard returning veterans and reservists who are absent for more than three months. Yet the legislative history also indicates a more expansive congressional purpose of ensuring that reservists are not deprived of any employment benefit solely because of their willingness to serve their country.
II
62
The benefit at issue here is the opportunity to work a full 40-hour week. Both the District Court and the Court of Appeals concluded that being scheduled to work 40 hours per week is an "incident or advantage" of employment established by the custom and practice at respondent's refinery. 446 F.Supp. 616, 619 (ND Ohio 1975); 613 F.2d 641, 645 (CA6 1980). Petitioner was treated no different from other employees in terms of work scheduling, and he was given the right to exchange shifts with willing fellow employees pursuant to the collective-bargaining agreement. Nevertheless, during those weeks when his scheduled work hours conflicted with his military commitments and he was unable to arrange an exchange of shifts, the opportunity granted him to work a full 40 hours was illusory since respondent "took no steps to provide [him] with substituted hours." App. 26. Thus, petitioner asserts that respondent violated 38 U.S.C. § 2021(b)(3) by refusing to rearrange his work schedule to allow him to work 40 hours during those weeks when his military obligations otherwise precluded him from doing so. I agree.
63
The Court inaccurately characterizes petitioner's claim as seeking "work-schedule preferences not available to other employees." Ante, at 560. Respondent's policy is not to readjust the work schedule to accommodate absences for personal reasons, and petitioner alleges no right to special consideration regarding absences unrelated to military service. But if petitioner is to be placed on an equal footing with his co-workers, his military absences cannot be treated simply as personal leaves of absence. See Carlson v. New Hampshire Dept. of Safety, 609 F.2d 1024, 1027 (CA1 1979), cert. denied, 446 U.S. 913, 100 S.Ct. 1844, 64 L.Ed.2d 267 (1980); Lott v. Goodyear Aerospace Corp., 395 F.Supp. 866, 869-870 (ND Ohio 1975). A reservist's absences for training result from obligations vital to our national defense that other employees have not assumed, and the primary purpose of the re-employment rights statutes is to protect reservists against disadvantages in employment caused by these obligations. Indeed, the essence of the statutory guarantees provided by Congress is that employers must give special treatment to the military absences of veterans and reservists.
64
The Court emphasizes that "respondent did not deny the petitioner anything that he would have received had he not been a reservist" since he was scheduled for 40 hours of work per week, was assigned the same burden of weekend and shift work as other employees, and was allowed to exchange shifts. Ante, at 565. In substance, the Court embraces the Court of Appeals' holding that § 2021(b)(3) "merely requires that reservists be treated equally or neutrally with their fellow employees without military obligations." 613 F.2d, at 646. However, unless the statute is read as safeguarding reservists from the adverse effects of facially neutral rules, much of its practical significance is lost. As the United States Court of Appeals for the Fifth Circuit observed in West v. Safeway Stores, Inc., 609 F.2d 147, 149 (1980): "The essence of reserve duty in this context is absence from work. If employers could . . . require that workers be present in order to receive certain benefits, then reservists could never secure the benefits or advantages of employment which the Act was designed to protect." see also Carney v. Cummins Engine Co., 602 F.2d 763 (CA7 1979), cert. denied, 444 U.S. 1073, 100 S.Ct. 1018, 62 L.Ed.2d 754 (1980).
65
Petitioner is not attempting to gain an advantage over his co-workers as a result of his reserve membership. He does not assert a right to be paid for hours he does not work, but asks only that he be given the same meaningful chance as other employees without military commitments to work full time in order to earn a living wage. Moreover, the record contains no evidence that it would be unduly burdensome for respondent, if given adequate notice, to accommodate petitioner's weekend military commitments in scheduling his work hours. In fact, counsel for respondent acknowledged at oral argument that petitioner "could be scheduled with the number of . . . Saturdays and Sundays off to accommodate his reserve obligation, without requiring any other employee in the plant to work any more Saturdays and Sundays than they now have to work under the regular routine." Tr. of Oral Arg. 27. See also App. 41-43 (proposed revision of work schedule).
66
The Court states that one of the flaws in petitioner's argument is that "there is no principled way of distinguishing between an employer's obligation to make scheduling accommodations for weekends as opposed to, for example, annual 2-week training periods, or even longer periods of training or duty." Ante, at 563. However, petitioner does not claim a right to make up hours, only to work full time during those weeks when he is available to work 40 hours apart from his reserve duties. Far from asking respondent to do the impossible, petitioner contends only that "reasonable steps" must be taken to accommodate him. Brief for Petitioner 24. Yet it is undisputed that respondent made no effort to do so. See App. 26. Cf. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977). I cannot accept the Court's conclusion that such total indifference is in keeping with the underlying purposes and express guarantees of § 2021(b)(3).
67
The Court's suggestion that respondent need go no further than the requirements of 38 U.S.C. § 2024(d) in accommodating petitioner—i. e., he must simply be provided "a leave of absence," ante, at 564—ignores the separate, broader protections of § 2021(b)(3), which was enacted because § 2024(d) was found to be inadequate. In the Court's view, "[i]f Congress had wanted to impose an additional obligation upon employers, guaranteeing that employee-reservists have the opportunity to work the same number of hours, or earn the same amount of pay that they would have earned without absences attributable to military reserve duties, it could have done so expressly." Ante, at 564. But it was respondent that conferred on its employees the benefit of 40 hours of work per week, and Congress has provided unequivocally that such a benefit cannot be refused a reservist, as it was here, solely because of his military commitments. The plain language of § 2021(b)(3) does not differentiate among employment benefits, but "makes it . . . explicit that a reservist or guardsman cannot be . . . denied any promotion or other employment benefit or advantage, because of any obligation arising out of his membership in the reserves [or Guard], or because of his absences from work that result from such obligation." U. S. Dept. of Labor, Office of Veterans' Reemployment Rights, Veterans' Reemployment Rights Handbook 114-115 (1970) (emphasis added).
III
68
We have held that the re-employment rights statutes are "to be liberally construed for the benefit of those who . . . serve their country." Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 285, 66 S.Ct. 1105, 1111, 90 L.Ed. 1230 (1946). Accord, Coffy v. Republic Steel Corp., 447 U.S. 191, 196, 100 S.Ct. 2100, 2104, 65 L.Ed.2d 53 (1980); Alabama Power Co. v. Davis, 431 U.S. 581, 584, 97 S.Ct. 2002, 2004, 52 L.Ed.2d 595 (1977). It is unfortunate, I think, that the Court's decision today undermines that sound principle. The clear purpose of Congress in enacting § 2021(b)(3) was to expand employment safeguards for reservists and thereby encourage participation in the Ready Reserves and the National Guard so as to strengthen our national defense effort without increased reliance on active duty personnel through mandatory military service. Yet that aim is severely frustrated if employers can deprive reservists of "an incident or advantage of employment" as important as the opportunity for full-time work undiminished by weekend absences for military training. Congress surely did not intend that petitioner be put to the choice of quitting the Reserves or forgoing the chance to earn the same wages as other employees who do not have military obligations. Section 2021(b)(3) was enacted to prevent the very type of disadvantage that petitioner has suffered. Accordingly, I would reverse the judgment of the Court of Appeals.
1
There is an apparent intercircuit conflict on this issue. Compare the case under review with West v. Safeway Stores, Inc., 609 F.2d 147 (CA5).
2
In oral argument, counsel for the respondent indicated that the petitioner was a member of the Ohio National Guard. This is not apparent in the record, but both Ready Reservists and National Guardsmen are equally entitled to the protection of 38 U.S.C. § 2021(b)(3). See S.Rep. No. 1477, 90th Cong., 2d Sess., 1, 5 (1968); H.R.Rep. No. 1303, 90th Cong., 2d Sess., 3, 6 (1968), U.S.Code Cong. & Admin.News, 1968 p. 3421.
3
Title 38 U.S.C. § 2024(d) provides in pertinent part:
"Any employee . . . shall upon request be granted a leave of absence by such person's employer for the period required to perform active duty for training or inactive duty for training in the Armed Forces of the United States. Upon such employee's release from a period of such active duty for training or inactive duty for training, . . . such employee shall be permitted to return to such employee's position with such seniority, status, pay, and vacation as such employee would have had if such employee had not been absent for such purposes. . . ."
4
The Department of Justice represents the petitioner pursuant to 38 U.S.C. § 2022.
5
Section 2021(b)(3) provides:
"Any person who holds a position described in clause (A) or (B) of subsection (a) of this section shall not be denied retention in employment or any promotion or other incident or advantage of employment because of any obligation as a member of a Reserve component of the Armed Forces."
6
The petitioner does not urge here that he had to be paid for hours not worked.
7
There is no dispute that the respondent has complied with all relevant requirements of § 2024(d). See n. 3, supra. This section compels employers to grant leaves of absence to employees who must attend reserve training, and entitles a reservist who has been absent for inactive reserve training to benefits upon his return, such as wage rates and seniority, which automatically would have accrued if he had remained in the continuous service of his employer. See Aiello v. Detroit Free Press, Inc., 570 F.2d 145, 148 (CA6). It does not entitle a reservist to benefits that are conditioned upon work requirements demanding actual performance on the job. See ibid. See also Foster v. Dravo Corp., 420 U.S. 92, 95 S.Ct. 879, 43 L.Ed.2d 44. Thus, it is not contended that § 2024(d) requires employers to pay absent reservists for hours not worked.
8
Before their recodification in 1974, the veterans' re-employment rights provisions were codified at 50 U.S.C.App. § 459 (1970 ed.) (§ 9 of the Military Selective Service Act of 1967). See Coffy v. Republic Steel Corp., 447 U.S. 191, 194, n. 2, 100 S.Ct. 2100, 2103, n. 2, 65 L.Ed.2d 53.
9
Section 2021(a) provides as follows:
"In the case of any person who is inducted into the Armed Forces of the United States under the Military Selective Service Act [50 U.S.C.App. §§ 451-473] (or under any prior or subsequent corresponding law) for training and service and who leaves a position (other than a temporary position) in the employ of any employer in order to perform such training and service; and (1) receives a certificate described in section 9(a) of the Military Selective Service Act [50 U.S.C.App. § 459(a)] (relating to the satisfactory completion of military service), and (2) makes application for reemployment within ninety days after such person is relieved from such training and service or from hospitalization continuing after discharge for a period of not more than one year—
"(A) if such position was in the employ of the United States Government, its territories, or possessions, or political subdivisions thereof, or the District of Columbia, such person shall—
"(i) if still qualified to perform the duties of such position, be restored to such position or to a position of like seniority, status, and pay; or
"(ii) if not qualified to perform the duties of such position, by reason of disability sustained during such service, but qualified to perform the duties of any other position in the employ of the employer, be offered employment and, if such person so requests, be employed in such other position the duties of which such person is qualified to perform as will provide such person like seniority, status, and pay, or the nearest approximation thereof consistent with the circumstances in such person's case;
"(B) if such position was in the employ of a State, or political subdivision thereof, or a private employer, such employee shall—
"(i) if still qualified to perform the duties of such position, be restored by such employer or the employer's successor in interest to such position or to a position of like seniority, status, and pay; or
"(ii) [as in (A)(ii), supra, except for references to the 'employer's successor in interest']."
10
The bill that included what became 38 U.S.C. § 2021(b)(3) was introduced in the 89th Congress. H. R. 11509, 89th Cong., 1st Sess. (1965). Hearings were held before Subcommittee No. 3 of the House Committee on Armed Services in February 1966. Hearings on H. R. 11509 before Subcommittee No. 3 of the House Committee on Armed Services, 89th Cong., 1st Sess. (1966) (hereafter 1966 House Hearings). The bill was favorably reported by the full Committee, H. R. Rep. No. 1303, 89th Cong., 2d Sess. (1966), and was passed by the House on March 7, 1966, 112 Cong.Rec. 5016 (1966). No action, however, was taken on the measure by the Senate in the 89th Congress.
The bill was reintroduced in the 90th Congress. H. R. 1093, 90th Cong., 1st Sess. (1967); S. 2561, 90th Cong., 1st Sess. (1967). Hearings were again held before Subcommittee No. 3 of the House Committee, on March 20, 1968. Hearings on H. R. 1093 before Subcommittee No. 3 of the House Committee on Armed Services, 90th Cong., 1st Sess. (1968) (hereafter 1968 House Hearings). The bill was favorably reported by the full Committee on April 24, 1968, H. R. Rep. No. 1303, 90th Cong., 2d Sess. (1968), and initially passed by the House on May 6, 1968, 114 Cong.Rec. 11779 (1968). Hearings were held by the Senate Committee on Armed Services on July 25, 1968. Hearings on H. R. 1093 before Senate Committee on Armed Services, 90th Cong., 2d Sess. (1968) (hereafter 1968 Senate Hearings). The bill was favorably reported by the Committee, S. Rep. No. 1477, 90th Cong., 2d Sess. (1968), on July 26, 1968, and passed the Senate on July 29, 1968, 114 Cong.Rec. 24017 (1968). The Senate concurred in the House amendment. Id., at 24999. The bill was signed into law on August 17, 1968. Pub. L. 90-491, 82 Stat. 790.
The language of that portion of the bill which became § 2021(b)(3) was unchanged throughout its legislative consideration. There was no substantive discussion of the measure on the floor of either chamber. Accordingly, the key portions of the legislative history are the three hearings held on the proposed measure and the three Committee Reports.
11
This same purpose was reflected in a statement in support of the legislation by Austin E. Kerby, the Director of the National Economic Commission of the American Legion:
"The American Legion feels very strongly that employees with reserve obligations who are members of the National Guard and the Reserves should not be denied retention in employment or promotional opportunities solely because of their participation in the Reserve Training Program. They should be afforded all the employment opportunities and benefits as those who do not have training obligations. The Reemployment Rights Statutes do not now protect National Guard members and Reservists as it does inductees and enlistees, who have one-year protection, and initial active duty for training reservists who have six-months protection.
"H. R. 1093 [H. R. 11509 as reintroduced in the 90th Congress, see n. 10, supra] would add a new section, 9(c)(3), under the reemployment provisions of the Universal Military Training and Service Act which would prevent discharge from employment without cause because of membership in the National Guard or Reserves, and would also prevent discrimination in such areas as promotion, training opportunities and pay increases." 1968 Hearings, at 7477 (emphasis added).
12
One could argue, of course, that "protection . . . against certain types of discharges or demotions that might rob the veteran's reemployment of its substance," Oakley v. Louisville & Nashville R. Co., 338 U.S. 278, 285, 70 S.Ct. 119, 123, 94 L.Ed. 87 (in reference to § 2021(b)(2) but equally relevant here) amounts to preferential treatment. But this sort of treatment, clearly intended by the statute and its legislative history, is better understood as protection against discrimination that would not have occurred were it not for reserve obligations, than as preferential treatment accorded solely because of reserve status.
13
The legislative history is barren of any indication that Congress intended employers to compensate employees for work hours missed while fulfilling military reserve obligations, which would of course amount to employee receipt of double compensation for such periods.
14
The Veterans' Reemployment Rights Handbook, published by the Office of Veterans' Reemployment Rights in 1970 and still in use today, notes that "[t]he law does not require the employer to pay the employee for the time he is absent for military training duty, or even to make up the difference between his military pay and his regular earnings for that period. In this respect, of course, many employers have adopted voluntary policies or contractual obligations, or are subject to State statutes, which give reservists and guardsmen more than the statute [38 U.S.C. § 2021 et seq.] requires." Id., at 113. And in the many examples in the Handbook addressed to typical problems an employer may confront because of employee military obligations, there is not so much as a hint that an employer has an obligation to adjust an employee's work schedule to make up for time lost because of military obligations.
15
Section 403 of the Vietnam Era Veterans' Readjustment Assistance Act of 1974, Pub. L. 93-508, 88 Stat. 1594, for example, made specific revisions to the existing provisions of the veterans' re-employment rights laws that impose explicit obligations upon employers with respect to certain disabled veterans of the Vietnam era. 38 U.S.C. § 2012. See S. Conf. Rep. No. 93-1107, p. 34 (1974). See also S. Conf. Rep. No. 93-1240, p. 34 (1974); H. R. Conf. Rep. No. 93-1303, p. 34 (1974); H. R. Conf. Rep. No. 93-1435, p. 35 (1974). Cf. Southeastern Community College v. Davis, 442 U.S. 397, 410-411, 99 S.Ct. 2361, 2369, 60 L.Ed.2d 980.
16
We note that the collective agreement between the respondent and the petitioner's union stated that it "defines the normal hours of work and shall not be construed as a guarantee of hours of work per day or per week or of days of work per week."
17
Of course, nothing in this opinion prevents an employer from providing special scheduling accommodation to employee-reservists. See n. 14, supra.
| 12
|
452 U.S. 490
101 S.Ct. 2478
69 L.Ed.2d 185
AMERICAN TEXTILE MANUFACTURERS INSTITUTE, INC., et al., Petitioners,v.Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor, et al. NATIONAL COTTON COUNCIL OF AMERICA, Petitioner, v. Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor, et al.
Nos. 79-1429, 79-1583.
Argued Jan. 21, 1981.
Decided June 17, 1981.
Syllabus
Section 6(b)(5) of the Occupational Safety and Health Act of 1970 (Act) requires the Secretary of Labor (Secretary), in promulgating occupational safety and health standards dealing with toxic materials or harmful physical agents, to set the standard "which most adequately assures, to the extent feasible, on the basis of the best available evidence" that no employee will suffer material impairment of health. Section 3(8) of the Act defines the term "occupational safety and health standard" as meaning a standard which requires conditions, or the adoption or use of practices, means, methods, operations, or processes, "reasonably necessary or appropriate" to provide safe or healthful employment and places of employment. Section 6(f) of the Act provides that the Secretary's determinations "shall be conclusive if supported by substantial evidence in the record considered as a whole." The Secretary, acting through the Occupational Safety and Health Administration (OSHA), promulgated the so-called Cotton Dust Standard limiting occupational exposure to cotton dust (an airborne particle byproduct of the preparation and manufacture of cotton products), exposure to which induces byssinosis, a serious and potentially disabling respiratory disease known in its more severe manifestations as "brown lung" disease. Estimates indicate that at least 35,000 employed and retired cotton mill workers, or 1 in 12, suffers from the most disabling form of byssinosis, and 100,000 employed and retired workers suffer from some form of the disease. The Standard sets permissible exposure levels to cotton dust for the different operations in the cotton industry. Implementation of the Standard depends primarily on a mix of engineering controls, such as installation of ventilation systems, and work practice controls, such as special floor-sweeping procedures. During the 4-year interim period permitted for full compliance with the Standard, employers are required to provide respirators to employees and to transfer employees unable to wear respirators to another position, if available, having a dust level that meets the Standard's permissible exposure limit, with no loss of earnings or other employment rights or benefits. OSHA estimated the total industrywide cost of compliance as $656.5 million. Petitioners, representing the cotton industry, challenged the validity of the Standard in the Court of Appeals, contending, inter alia, that the Act requires OSHA to demonstrate that the Standard reflects a reasonable relationship between the costs and benefits associated with the Standard, that OSHA's determination of the Standard's "economic feasibility" was not supported by substantial evidence, and that the wage guarantee requirement was beyond OSHA's authority. The Court of Appeals upheld the Standard in all major respects. It held that the Act did not require OSHA to compare costs and benefits; that Congress itself balanced the costs and benefits in its mandate to OSHA under § 6(b)(5) to adopt the most protective feasible standard; and that OSHA's determination of economic feasibility was supported by substantial evidence in the record as a whole. The court also held that OSHA had authority to require employers to guarantee employees' wage and employment benefits following transfer because of inability to wear a respirator.
Held:
1. Cost-benefit analysis by OSHA in promulgating a standard under § 6(b)(5) is not required by the Act because feasibility analysis is. Pp. 506-522.
(a) The plain meaning of the word "feasible" is "capable of being done," and thus § 6(b)(5) directs the Secretary to issue the standard that most adequately assures that no employee will suffer material impairment of health, limited only by the extent to which this is "capable of being done." In effect then, as the Court of Appeals held, Congress itself defined the basic relationship between costs and benefits by placing the "benefit" of the worker's health above all other considerations save those making attainment of this "benefit" unachievable. Any standard based on a balancing of costs and benefits by the Secretary that strikes a different balance than that struck by Congress would be inconsistent with the command set forth in § 6(b)(5). Pp. 508-512.
(b) Section 3(8), either alone or in tandem with § 6(b)(5), does not incorporate a cost-benefit requirement for standards dealing with toxic materials or harmful physical agents. Even if the phrase "reasonably necessary or appropriate" in § 3(8) might be construed to contemplate some balancing of costs and benefits, Congress specifically chose in § 6(b)(5) to impose separate and additional requirements for issuance of standards dealing with such materials and agents: it required that those standards be issued to prevent material health impairment to the extent feasible. To interpret § 3(8) as imposing an additional and overriding cost-benefit analysis requirement on the issuance of § 6(b)(5) standards would eviscerate § 6(b)(5)'s "to the extent feasible" requirement. P.p. 512-513.
(c) The Act's legislative history supports the conclusion that Congress itself in § 6(b)(5) balanced the costs and benefits. There is no indication whatsoever that Congress intended OSHA to conduct its own cost-benefit analysis before promulgating a toxic-material or harmful-physical-agent standard. Rather, not only does the history confirm that Congress meant "feasible" rather than "cost-benefit" when it used the former term, but it also shows that Congress understood that the Act would create substantial costs for employers, yet intended to impose such costs when necessary to create a safe and healthful working environment. Pp. 514-522.
2. Whether or not in the first instance this Court would find OSHA's findings supported by substantial evidence, it cannot be said that the Court of Appeals on the basis of the whole record "misapprehended or grossly misapplied" the substantial-evidence test when it upheld such findings. Pp. 522-536.
3. Whether or not OSHA has the underlying authority to promulgate a wage guarantee requirement with respect to employees who are transferred to another position when they are unable to wear a respirator, OSHA failed to make the necessary determination or statement of reasons that this requirement was related to achievement of health and safety goals. Pp. 536-540.
199 U.S.App.D.C. 54, 617 F.2d 636, affirmed in part, vacated in part, and remanded.
Robert H. Bork, New Haven, Conn., for petitioners.
Kenneth S. Geller, Washington, D.C., for respondent Marshall.
George H. Cohen, Washington, D.C., for respondent unions.
Justice BRENNAN delivered the opinion of the Court.
1
Congress enacted the Occupational Safety and Health Act of 1970 (Act) "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions. . . ." § 2(b), 84 Stat. 1590, 29 U.S.C. § 651(b). The Act authorizes the Secretary of Labor to establish, after notice and opportunity to comment, mandatory nationwide standards governing health and safety in the workplace. 29 U.S.C. §§ 655(a), (b). In 1978, the Secretary, acting through the Occupational Safety and Health Administration (OSHA),1 promulgated a standard limiting occupational exposure to cotton dust, an airborne particle byproduct of the preparation and manufacture of cotton products, exposure to which induces a "constellation of respiratory effects" known as "byssinosis." 43 Fed.Reg. 27352, col. 3 (1978). This disease was one of the expressly recognized health hazards that led to passage of the Act. S.Rep.No.91-1282, p. 3 (1970), U.S.Code Cong. & Admin.News 1970, p. 5177, Legislative History of the Occupational Safety and Health Act of 1970, p. 143 (Comm. Print 1971) (Leg.Hist.).
2
Petitioners in these consolidated cases, representing the interests of the cotton industry,2 challenged the validity of the "Cotton Dust Standard" in the Court of Appeals for the District of Columbia Circuit pursuant to § 6(f) of the Act, 29 U.S.C. § 655(f). They contend in this Court, as they did below, that the Act requires OSHA to demonstrate that its Standard reflects a reasonable relationship between the costs and benefits associated with the Standard. Respondents, the Secretary of Labor and two labor organizations,3 counter that Congress balanced the costs and benefits in the Act itself, and that the Act should therefore be construed not to require OSHA to do so. They interpret the Act as mandating that OSHA enact the most protective standard possible to eliminate a significant risk of material health impairment, subject to the constraints of economic and technological feasibility. The Court of Appeals held that the Act did not require OSHA to compare costs and benefits. AFL-CIO v. Marshall, 199 U.S.App.D.C. 54, 617 F.2d 636 (1979). We granted certiorari, 449 U.S. 817, 101 S.Ct. 68, 66 L.Ed.2d 19 (1980), to resolve this important question, which was presented but not decided in last Term's Industrial Union Dept. v. American Petroleum Institute, 448 U.S. 607, 100 S.Ct. 2844, 65 L.Ed.2d 1010 (1980),4 and to decide other issues related to the Cotton Dust Standard.5
3
* Byssinosis, known in its more severe manifestations as "brown lung" disease, is a serious and potentially disabling respiratory disease primarily caused by the inhalation of cotton dust.6 See 43 Fed.Reg. 27352-27354 (1978); Exhibit 6-16, App. 15-22.7 Byssinosis is a "continuum . . . disease," 43 Fed.Reg. 27354, col. 2 (1978), that has been categorized into four grades.8 In its least serious form, byssinosis produces both subjective symptoms, such as chest tightness, shortness of breath, coughing, and wheezing, and objective indications of loss of pulmonary functions. Id., at 27352, col. 2. In its most serious form, byssinosis is a chronic and irreversible obstructive pulmonary disease, clinically similar to chronic bronchitis or emphysema, and can be severely disabling. Ibid. At worst, as is true of other respiratory diseases including bronchitis, emphysema, and asthma, byssinosis can create an additional strain on cardiovascular functions and can contribute to death from heart failure. See Exhibit 6-73, App. 72 ("there is an association between mortality and the extent of dust exposure"). One authority has described the increasing seriousness of byssinosis as follows: from the work environment; later, symptoms occur on other days of the week; and eventually, symptoms are continuous, even in the absence of dust exposure." A. Bouhuys, Byssinosis in the United States, Exhibit 6-16, App. 15.9
4
While there is some uncertainty over the manner in which the disease progresses from its least serious to its disabling grades, it is likely that prolonged exposure contributes to the progression. 43 Fed.Reg. 27354, cols. 1 and 2 (1978); Exhibit 6-27, App. 25; Exhibit 11, App. 152. It also appears that a worker may suddenly contract a severe grade without experiencing milder grades of the disease. Exhibit 41, App. 192.10
5
Estimates indicate that at least 35,000 employed and retired cotton mill workers, or 1 in 12 such workers, suffer from the most disabling form of byssinosis.11 43 Fed.Reg. 27353, col. 3 (1978); Exhibit 124, App. 347. The Senate Report accompanying the Act cited estimates that 100,000 active and retired workers suffer from some grade of the disease. S.Rep.No.91-1282, p. 3 (1970), Leg.Hist. 143. One study found that over 25% of a sample of active cotton-preparation and yarn-manufacturing workers suffer at least some form of the disease at a dust exposure level common prior to adoption of the current Standard. 43 Fed.Reg. 27355, col. 3 (1978); Exhibit 6-51, App. 44.12 Other studies confirm these general findings on the prevalence of byssinosis. See, e. g., Ct. of App.J.A. 3683; Ex. 6-56, id., at 376-385.
6
Not until the early 1960's was byssinosis recognized in the United States as a distinct occupational hazard associated with cotton mills. S.Rep.No.91-1282, supra, at 3, Leg. Hist. 143.13 In 1966, the American Conference of Governmental Industrial Hygienists (ACGIH), a private organization, recommended that exposure to total cotton dust14 be limited to a "threshold limit value" of 1,000 micrograms per cubic meter of air (1000 ug/m3) averaged over an 8-hour workday. See 43 Fed.Reg. 27351, col. 1 (1978). The United States Government first regulated exposure to cotton dust in 1968, when the Secretary of Labor, pursuant to the Walsh-Healey Act, 41 U.S.C. § 35(e), promulgated airborne contaminant threshold limit values, applicable to public contractors, that included the 1,000 ug/m3 limit for total cotton dust. 34 Fed.Reg. 7953 (1969).15 Following passage of the Act in 1970, the 1,000 ug/m3 standard was adopted as an "established Federal standard" under § 6(a) of the Act, 84 Stat. 1593, 29 U.S.C. § 655(a), a provision designed to guarantee immediate protection of workers for the period between enactment of the statute and promulgation of permanent standards.16
7
In 1974, ACGIH, adopting a new measurement unit of respirable rather than total dust, lowered its previous exposure limit recommendation to 200 ug/m3 measured by a vertical elutriator, a device that measures cotton dust particles 15 microns or less in diameter. 43 Fed.Reg. 27351, col. 1, 27355, col. 2 (1978).17 That same year, the Director of the National Institute for Occupational Safety and Health (NIOSH),18 pursuant to the Act, 29 U.S.C. §§ 669(a)(3), 671(d)(2), submitted to the Secretary of Labor a recommendation for a cotton dust standard with a permissible exposure limit (PEL) that "should be set at the lowest level feasible, but in no case at an environmental concentration as high as 0.2 mg lint-free cotton dust/cu m," or 200 ug/m3 of lint-free respirable dust.19 Ex. 1, Ct. of App.J.A. 11; 41 Fed.Reg. 56500, col. 1 (1976). Several months later, OSHA published an Advance Notice of Proposed Rulemaking, 39 Fed.Reg. 44769 (1974), requesting comments from interested parties on the NIOSH recommendation and other related matters. Soon thereafter, the Textile Worker's Union of America, joined by the North Carolina Public Interest Research Group, petitioned the Secretary, urging a more stringent PEL of 100 ug/m3.
8
On December 28, 1976, OSHA published a proposal to replace the existing federal standard on cotton dust with a new permanent standard, pursuant to § 6(b)(5) of the Act, 29 U.S.C. § 655(b)(5). 41 Fed.Reg. 56498. The proposed standard contained a PEL of 200 ug/m3 of vertical elutriated lint-free respirable cotton dust for all segments of the cotton industry. Ibid. It also suggested an implementation strategy for achieving the PEL that relied on respirators for the short term and engineering controls for the long term. Id., at 56506, cols. 2 and 3. OSHA invited interested parties to submit written comments within a 90-day period.20
9
Following the comment period, OSHA conducted three hearings in Washington, D. C., Greenville, Miss., and Lubbock, Tex., that lasted over 14 days. Public participation was widespread, involving representatives from industry and the work force, scientists, economists, industrial hygienists, and many others. By the time the informal rulemaking procedure had terminated, OSHA had received 263 comments and 109 notices of intent to appear at the hearings. 43 Fed.Reg. 27351, col. 2 (1978). The voluminous record, composed of a transcript of written and oral testimony, exhibits, and post-hearing comments and briefs, totaled some 105,000 pages. 199 U.S.App.D.C., at 65, 617 F.2d, at 647. OSHA issued its final Cotton Dust Standard—the one challenged in the instant case—on June 23, 1978. Along with an accompanying statement of findings and reasons, the Standard occupied 69 pages of the Federal Register. 43 Fed.Reg. 27350-27418 (1978); see 29 CFR § 1910.1043 (1980).
10
The Cotton Dust Standard promulgated by OSHA establishes mandatory PEL's over an 8-hour period of 200 ug/m3 for yarn manufacturing,21 750 ug/m3 for slashing and weaving operations, and 500 ug/m3 for all other processes in the cotton industry.22 29 CFR § 1910.1043(c) (1980). These levels represent a relaxation of the proposed PEL of 200 ug/m3 for all segments of the cotton industry.
11
OSHA chose an implementation strategy for the Standard that depended primarily on a mix of engineering controls, such as installation of ventilation systems,23 and work practice controls, such as special floor-sweeping procedures. Full compliance with the PEL's is required within four years, except to the extent that employers can establish that the engineering and work practice controls are infeasible. § 1910.1043(e)(1). During this compliance period, and at certain other times, the Standard requires employers to provide respirators to employees. § 1910.1043(f). Other requirements include monitoring of cotton dust exposure, medical surveillance of all employees, annual medical examinations, employee education and training programs, and the posting of warning signs. A specific provision also under challenge in the instant case requires employers to transfer employees unable to wear respirators to another position, if available, having a dust level at or below the Standard's PEL's, with "no loss of earnings or other employment rights or benefits as a result of the transfer." § 1910.1043(f)(2)(v).
12
On the basis of the evidence in the record as a whole, the Secretary determined that exposure to cotton dust represents a "significant health hazard to employees." 43 Fed.Reg. 27350, col. 1 (1978), and that "the prevalence of byssinosis should be significantly reduced" by the adoption of the Standard's PEL's, id., at 27359, col. 3. In assessing the health risks from cotton dust and the risk reduction obtained from lowered exposure, OSHA relied particularly on data showing a strong linear relationship between the prevalence of byssinosis and the concentration of lint-free respirable cotton dust. Id., at 27355-27359; Exhibit 6-51, App. 29-55. See also Ex. 6-17, Ct. of App.J.A. 235-245; Ex. 38D, id., at 1492-1839. Even at the 200 ug/m3 PEL, OSHA found that the prevalence of at least Grade 1/2 byssinosis would be 13% of all employees in the yarn manufacturing sector. 43 Fed.Reg. 27359, cols. 2 and 3 (1978).
13
In promulgating the Cotton Dust Standard, OSHA interpreted the Act to require adoption of the most stringent standard to protect against material health impairment, bounded only by technological and economic feasibility. Id., at 27361, col. 3. OSHA therefore rejected the industry's alternative proposal for a PEl of 500 ug/m3 in yarn manufacturing, a proposal which would produce a 25% prevalence of at least Grade 1/2 byssinosis. The agency expressly found the Standard to be both technologically and economically feasible based on the evidence in the record as a whole. Although recognizing that permitted levels of exposure to cotton dust would still cause some byssinosis, OSHA nevertheless rejected the union proposal for a 100 ug/m3 PEL because it was not within the "technological capabilities of the industry." Id., at 27359-27360. Similarly, OSHA set PEL's for some segments of the cotton industry at 500 ug/m3 in part because of limitations of technological feasibility. Id., at 27361, col. 3. Finally, the Secretary found that "engineering dust controls in weaving may not be feasible even with massive expenditures by the industry,"id., at 27360, col. 2, and for that and other reasons adopted a less stringent PEL of 750 ug/m3 for weaving and slashing.
14
The Court of Appeals upheld the Standard in all major respects.24 The court rejected the industry's claim that OSHA failed to consider its proposed alternative or give sufficient reasons for failing to adopt it. 199 U.S.App.D.C., at 70-72, 617 F.2d, at 652-654. The court also held that the Standard was "reasonably necessary and appropriate" within the meaning of § 3(8) of the Act, 29 U.S.C. § 652(8), because of the risk of material health impairment caused by exposure to cotton dust. 199 U.S.App.D.C., at 72-73, and n. 83, 617 F.2d, at 654-655, and n. 83. Rejecting the industry position that OSHA must demonstrate that the benefits of the Standard are proportionate to its costs, the court instead agreed with OSHA's interpretation that the Standard must protect employees against material health impairment subject only to the limits of technological and economic feasibility. Id., at 80-84, 617 F.2d, at 662-666. The court held that "Congress itself struck the balance between costs and benefits in the mandate to the agency" under § 6(b)(5) of the Act, 29 U.S.C. § 655(b)(5), and that OSHA is powerless to circumvent that judgment by adopting less than the most protective feasible standard. 199 U.S.App.D.C., at 81, 617 F.2d, at 663. Finally, the court held that the agency's determination of technological and economic feasibility was supported by substantial evidence in the record as a whole. Id., at 73-80, 617 F.2d, at 655-662.
We affirm in part, and vacate in part.25
II
15
The principal question presented in these cases is whether the Occupational Safety and Health Act requires the Secretary, in promulgating a standard pursuant to § 6(b)(5) of the Act, 29 U.S.C. § 655(b)(5), to determine that the costs of the standard bear a reasonable relationship to its benefits. Relying on §§ 6(b)(5) and 3(8) of the Act, 29 U.S.C. §§ 655(b)(5) and 652(8), petitioners urge not only that OSHA must show that a standard addresses a significant risk of material health impairment, see Industrial Union Dept. v. American Petroleum Institute, 448 U.S., at 639, 100 S.Ct., at 2863 (plurality opinion), but also that OSHA must demonstrate that the reduction in risk of material health impairment is significant in light of the costs of attaining that reduction. See Brief for Petitioners in No. 79-1429, pp. 38-41.26 Respondents on the other hand contend that the Act requires OSHA to promulgate standards that eliminate or reduce such risks "to the extent such protection is technologically and economically feasible." Brief for Federal Respondent 38; Brief for Union Respondents 26-27.27 To resolve this debate, we must turn to the language, structure, and legislative history of the Act.
16
The starting point of our analysis is the language of the statute itself. Steadman v. SEC, 450 U.S. 91, 97, 101 S.Ct. 999, 1005, 67 L.Ed.2d 69 (1981); Reiter v. Sonotone Corp., 442 U.S. 330, 337, 99 S.Ct. 2326, 2330, 60 L.Ed.2d 931 (1979). Section 6(b)(5) of the Act, 29 U.S.C. § 655(b)(5) (emphasis added), provides:
17
"The Secretary, in promulgating standards dealing with toxic materials or harmful physical agents under this subsection, shall set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life."28
18
Although their interpretations differ, all parties agree that the phrase "to the extent feasible" contains the critical language in § 6(b)(5) for purposes of these cases.
19
The plain meaning of the word "feasible" supports respondents' interpretation of the statute. According to Webster's Third New International Dictionary of the English Language 831 (1976), "feasible" means "capable of being done, executed, or effected." Accord, The Oxford English Dictionary 116 (1933) ("Capable of being done, accomplished or carried out"); Funk & Wagnalls New "Standard" Dictionary of the English Language 903 (1957) ("That may be done, performed or effected"). Thus, § 6(b)(5) directs the Secretary to issue the standard that "most adequately assures . . . that no employee will suffer material impairment of health," limited only by the extent to which this is "capable of being done." In effect then, as the Court of Appeals held, Congress itself defined the basic relationship between costs and benefits, by placing the "benefit" of worker health above all other considerations save those making attainment of this "benefit" unachievable. Any standard based on a balancing of costs and benefits by the Secretary that strikes a different balance than that struck by Congress would be inconsistent with the command set forth in § 6(b)(5). Thus, cost-benefit analysis by OSHA is not required by the statute because feasibility analysis is.29 See Industrial Union Dept. v. American Petroleum Institute, 448 U.S., at 718-719, 100 S.Ct., at 2902-2903 (MARSHALL, J., dissenting).
20
When Congress has intended that an agency engage in cost-benefit analysis, it has clearly indicated such intent on the face of the statute. One early example is the Flood Control Act of 1936, 33 U.S.C. § 701a:
21
"[T]he Federal Government should improve or participate in the improvement of navigable waters or their tributaries, including watersheds thereof, for flood-control purposes if the benefits to whomsoever they may accrue are in excess of the estimated costs, and if the lives and social security of people are otherwise adversely affected." (Emphasis added.)
22
A more recent example is the Outer Continental Shelf Lands Act Amendments of 1978, 43 U.S.C. § 1347(b) (1976 ed., Supp.III), providing that offshore drilling operations shall use
23
"the best available and safest technologies which the Secretary determines to be economically feasible, wherever failure of equipment would have significant effect on safety, health, or the environment, except where the Secretary determines that the incremental benefits are clearly insufficient to justify the incremental costs of using such technologies."
24
These and other statutes30 demonstrate that Congress uses specific language when intending that an agency engage in cost-benefit analysis. See Industrial Union Dept. v. American Petroleum Institute, supra, at 710, n. 27, 100 S.Ct., at 2898, n. 27 (MARSHALL, J., dissenting). Certainly in light of its ordinary meaning, the word "feasible" cannot be construed to articulate such congressional intent. We therefore reject the argument that Congress required cost-benefit analysis in § 6(b)(5).
B
25
Even though the plain language of § 6(b)(5) supports this construction, we must still decide whether § 3(8), the general definition of an occupational safety and health standard, either alone or in tandem with § 6(b)(5), incorporates a cost-benefit requirement for standards dealing with toxic materials or harmful physical agents. Section 3(8) of the Act, 29 U.S.C. § 652(8) (emphasis added), provides:
26
"The term 'occupational safety and health standard' means a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment."
27
Taken alone, the phrase "reasonably necessary or appropriate" might be construed to contemplate some balancing of the costs and benefits of a standard. Petitioners urge that, so construed, § 3(8) engrafts a cost-benefit analysis requirement on the issuance of § 6(b)(5) standards, even if § 6(b)(5) itself does not authorize such analysis. We need not decide whether § 3(8), standing alone, would contemplate some form of cost-benefit analysis. For even if it does, Congress specifically chose in § 6(b)(5) to impose separate and additional requirements for issuance of a subcategory of occupational safety and health standards dealing with toxic materials and harmful physical agents: it required that those standards be issued to prevent material impairment of health to the extent feasible. Congress could reasonably have concluded that health standards should be subject to different criteria than safety standards because of the special problems presented in regulating them. See Industrial Union Dept. v. American Petroleum Institute, 448 U.S., at 649, n.54, 100 S.Ct., at 2867, n.54 (plurality opinion).
28
Agreement with petitioners' argument that § 3(8) imposes an additional and overriding requirement of cost-benefit analysis on the issuance of § 6(b)(5) standards would eviscerate the "to the extent feasible" requirement. Standards would inevitably be set at the level indicated by cost-benefit analysis, and not at the level specified by § 6(b)(5). For example, if cost-benefit analysis indicated a protective standard of 1,000 ug/m3 PEL, while feasibility analysis indicated a 500 ug/m3 PEL, the agency would be forced by the cost-benefit requirement to choose the less stringent point.31 We cannot believe that Congress intended the general terms of § 3(8) to countermand the specific feasibility requirement of § 6(b)(5). Adoption of petitioners' interpretation would effectively write § 6(b)(5) out of the Act. We decline to render Congress' decision to include a feasibility requirement nugatory, thereby offending the well-settled rule that all parts of a statute, if possible, are to be given effect. E. g., Reiter v. Sonotone Corp., 442 U.S., at 339, 99 S.Ct., at 2331; Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 633-634, 93 S.Ct. 2469, 2485, 3 L.Ed.2d 207 (1973); Jarecki v. G. D. Searle & Co., 367 U.S. 303, 307-308, 81 S.Ct. 1579, 1582, 6 L.Ed.2d 859 (1961). Congress did not contemplate any further balancing by the agency for toxic material and harmful physical agents standards, and we should not " 'impute to Congress a purpose to paralyze with one hand what it sought to promote with the other.' " Weinberger v. Hynson, Westcott & Dunning, Inc., supra, at 631, 93 S.Ct., at 631, quoting Clark v. Uebersee Finanz-Korporation, 332 U.S. 480, 489, 68 S.Ct. 174, 178, 92 L.Ed. 88 (1947).32
C
29
The legislative history of the Act, while concededly not crystal clear, provides general support for respondents' interpretation of the Act. The congressional Reports and debates certainly confirm that Congress meant "feasible" and nothing else in using that term. Congress was concerned that the Act might be thought to require achievement of absolute safety, an impossible standard, and therefore insisted that health and safety goals be capable of economic and technological accomplishment. Perhaps most telling is the absence of any indication whatsoever that Congress intended OSHA to conduct its own cost-benefit analysis before promulgating a toxic material or harmful physical agent standard. The legislative history demonstrates conclusively that Congress was fully aware that the Act would impose real and substantial costs of compliance on industry, and believed that such costs were part of the cost of doing business. We thus turn to the relevant portions of the legislative history.
30
Neither the original Senate bill, S. 2193, 91st Cong., 1st Sess. (1969), introduced by Senator Williams, nor the original House bill, H.R. 16785, 91st Cong., 2d Sess. (1970), introduced by Representative Daniels, included specific provisions controlling the issuance of standards governing toxic materials and harmful physical agents, Leg.Hist. 1, 6-7 (Williams bill); 721, 728-732 (Daniels bill), although both contained the definitional section enacted as § 3(8).33 The House Committee on Education and Labor, to which the Daniels bill was referred, reported out an amended bill that included the following section:
31
The Senate Committee on Labor and Public Welfare, reporting on the Williams bill, included a provision virtually identical to the House version, except for the additional requirement that the Secretary set the standard "which most adequately and feasibly assures . . . that no employee will suffer any impairment of health." Id., at 242 (the Senate provision was numbered § 6(b)(5)) (emphasis added). This addition to the Williams bill was offered by Senator Javits, who explained his amendment:
32
"As a result of this amendment the Secretary, in setting standards, is expressly required to consider feasibility of proposed standards. This is an improvement over the Daniels bill [as reported out of the House Committee], which might be interpreted to require absolute health and safety in all cases, regardless of feasibility, and the Administration bill, which contains no criteria for standards at all." S.Rep. No. 91-1282, p. 58 (1970), U.S.Code Cong. & Admin.News 1978, p. 5222, Leg.Hist. 197 (emphasis added).34
33
Thus the Senator's concern was that a standard might require "absolute health and safety" without any consideration as to whether such a condition was achievable. The full Senate Committee also noted that standards promulgated under this provision "shall represent feasible requirements," S.Rep. No. 91-1282, at 7, Leg.Hist. 147, and commented that "[s]uch standards should be directed at assuring, so far as possible, that no employee will suffer impaired health . . .," ibid. (emphasis added).
34
The final amendments to this Senate provision, resulting in § 6(b)(5) of the Act, were proposed and adopted on the Senate floor after the Committee reported out the bill. Senator Dominick, who played a prominent role in this amendment process, see 116 Cong.Rec. 37631 (1970), Leg.Hist. 526 (comments of Sen. Javits); 116 Cong.Rec., at 37631, Leg.Hist. 527 (comments of Sen. Williams), continued to be concerned that the Act might be read to require absolute safety. He therefore proposed that the entire first sentence of § 6(b)(5) be struck, explaining:
35
"This requirement is inherently confusing and unrealistic. It could be read to require the Secretary to ban all occupations in which there remains some risk of injury, impaired health, or life expectancy. In the case of all occupations, it will be impossible to eliminate all risks to safety and health. Thus, the present criteria could, if literally applied, close every business in this nation. In addition, in many cases, the standard which might most 'adequately' and 'feasibly' assure the elimination of the danger would be the prohibition of the occupation itself." Leg.Hist. 367 (comments of Sen. Dominick on his proposed amendment No. 1054) (emphasis in original).
36
In the ensuing floor debate on this issue, Senator Dominick reiterated his concern that "[i]t is unrealistic to attempt, as [the Committee's § 6(b)(5)] apparently does, to establish a utopia free from any hazards. Absolute safety is an impossibility. . . ." 116 Cong.Rec. 37614 (1970), Leg.Hist. 480.35 The Senator concluded: "Any administrator responsible for enforcing the statute will be faced with an impossible choice. Either he must forbid employment in all occupations where there is any risk of injury, even if the technical state of the art could not remove the hazard, or he must ignore the mandate of Congress. . . ." 116 Cong.Rec., at 37614, Leg.Hist. 481-482.
37
Senator Dominick failed in his efforts to have the first sentence of § 6(b)(5) deleted. However, after working with Senators Williams and Javits, he introduced an amended version of the first sentence which he thought was "agreeable to all" and which became § 6(b)(5) as it now appears in the Act. 116 Cong.Rec., at 37622, Leg.Hist. 502. This amendment limited the applicability of § 6(b)(5) to "toxic materials and harmful physical agents," changed "health impairment" to "material impairment of health," and deleted the reference to "diminished life expectancy." Significantly, the feasibility requirement was left intact in the statute. Instead of the phrase "which most adequately and feasibly assures," the amendment merely substituted "which most adequately assures, to the extent feasible," to emphasize that the feasibility requirement operated as a limit on the promulgation of standards under § 6(b)(5).
38
Senator Dominick believed that his modifications made clearer that attainment of an absolutely safe working environment could not be achieved through "prohibition of the occupation itself," Leg.Hist. 367, and that toxic material and harmful physical agent standards should not address frivolous harms that exist in every workplace. The feasibility requirement, along with the need for a "material impairment of health," were thus thought to satisfy these two concerns. He explained the effect of the amendment:
39
"What we were trying to do in the bill—unfortunately, we did not have the proper wording or the proper drafting—was to say that when we are dealing with toxic agents or physical agents, we ought to take such steps as are feasible and practical to provide an atmosphere within which a person's health or safety would not be affected. Unfortunately, we had language providing that anyone would be assured that no one would have a hazard. . . ." 116 Cong.Rec. 37622 (1970), Leg.Hist. 502.
40
Senator Williams added that the amendment "will provide a continued direction to the Secretary that he shall be required to set the standard which most adequately and to the greatest extent feasible assures" that no employee will suffer any material health impairment. 116 Cong.Rec., Leg.Hist. 503. The Senate thereafter passed S. 2193. One week later, the House passed a substitute bill which failed to contain any substantive criteria for the issuance of health standards in place of its original bill. 116 Cong.Rec., at 38716-38717, Leg.Hist. 1094-1096. At the joint House-Senate Conference, however, the House conferees acceded to the Senate's version of § 6(b)(5).36
41
Not only does the legislative history confirm that Congress meant "feasible" rather than "cost-benefit" when it used the former term, but it also shows that Congress understood that the Act would create substantial costs for employers, yet intended to impose such costs when necessary to create a safe and healthful working environment.37 Congress viewed the costs of health and safety as a cost of doing business. Senator Yarborough, a cosponsor of the Williams bill, stated: "We know the costs would be put into consumer goods but that is the price we should pay for the 80 million workers in America." 116 Cong.Rec., at 37345, Leg.Hist. 444. He asked: is what we are dealing with when we talk about industrial safety.
42
* * * * *
43
"We are talking about people's lives, not the indifference of some cost accountants." 116 Cong.Rec., at 37625, Leg.Hist. 510.
44
Senator Eagleton commented that "[t]he costs that will be incurred by employers in meeting the standards of health and safety to be established under this bill are, in my view, reasonable and necessary costs of doing business." 116 Cong.Rec., at 41764, Leg.Hist. 1150-1151 (emphasis added).38
45
Other Members of Congress voiced similar views.39 Nowhere is there any indication that Congress contemplated a different balancing by OSHA of the benefits of worker health and safety against the costs of achieving them. Indeed Congress thought that the financial costs of health and safety problems in the workplace were as large as or larger than the financial costs of eliminating these problems. In its statement of findings and declaration of purpose encompassed in the Act itself, Congress announced that "personal injuries and illnesses arising out of work situations impose a substantial burden upon, and are a hindrance to, interstate commerce in terms of lost production, wage loss, medical expenses, and disability compensation payments." 29 U.S.C. § 651(a).
46
Senator Eagleton summarized: "Whether we, as individuals, are motivated by simple humanity or by simple economics, we can no longer permit profits to be dependent upon an unsafe or unhealthy worksite." 116 Cong.Rec. 41764 (1970), Leg.Hist. 1150-1151.
III
47
Section 6(f) of the Act provides that "[t]he determinations of the Secretary shall be conclusive if supported by substantial evidence in the record considered as a whole." 29 U.S.C. § 655(f). Petitioners contend that the Secretary's determination that the Cotton Dust Standard is "economically feasible" is not supported by substantial evidence in the record considered as a whole. In particular, they claim (1) that OSHA underestimated the financial costs necessary to meet the Standard's requirements; and (2) that OSHA incorrectly found that the Standard would not threaten the economic viability of the cotton industry.
48
In statutes with provisions virtually identical to § 6(f) of the Act, we have defined substantial evidence as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951). The reviewing court must take into account contradictory evidence in the record, id., at 487-488, 71 S.Ct., at 464, but "the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence," Consolo v. FMC, 383 U.S. 607, 620, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131 (1966). Since the Act places responsibility for determining substantial evidence questions in the courts of appeals, 29 U.S.C. § 655(f), we apply the familiar rule that "[t]his Court will intervene only in what ought to be the rare instance when the [substantial evidence] standard appears to have been misapprehended or grossly misapplied" by the court below. Universal Camera Corp. v. NLRB, supra, 340 U.S., at 491, 71 S.Ct., at 466; see Mobil Oil Corp. v. FPC, 417 U.S. 283, 292, 310, 94 S.Ct. 2328, 2346, 41 L.Ed.2d 72 (1974); FTC v. Standard Oil Co., 355 U.S. 396, 400-401, 78 S.Ct. 369, 371, 2 L.Ed.2d 359 (1958). Therefore, our inquiry is not to determine whether we, in the first instance, would find OSHA's findings supported by substantial evidence. Instead we turn to OSHA's findings and the record upon which they were based to decide whether the Court of Appeals "misapprehended or grossly misapplied" the substantial evidence test.
A.
49
OSHA derived its cost estimate for industry compliance with the Cotton Dust Standard after reviewing two financial analyses, one prepared by the Research Triangle Institute (RTI), an OSHA-contracted group, the other by industry representatives (Hocutt-Thomas).40 The agency carefully explored the assumptions and methodologies underlying the conclusions of each of these studies. From this exercise the agency was able to build upon conclusions from each which it found reliable and explain its process for choosing its cost estimate. A brief summary of OSHA's treatment of the two studies follows.
50
OSHA rejected RTI's cost estimate of $1.1 billion for textile industry engineering controls for three principal reasons.41 First, OSHA believed that RTI's estimate should be discounted by 30%, 43 Fed.Reg. 27372, col. 3 (1978), because that estimate was based on the assumption that engineering controls would be applied to all equipment in mills, including those processing pure synthetic fibers, even though cotton dust is not generated by such equipment. RTI had observed that "[e]xclusion of equipment processing man-made fibers only could reduce these costs by as much as 30 percent." Ex. 6-76, Ct. of App.J.A. 585.42 Since the Standard did not require controls on synthetics-only equipment, OSHA rejected RTI's assumption about application of controls to synthetics-only machines. 43 Fed.Reg. 27371, col. 3 (1978). Second, OSHA concluded that RTI "may have over-estimated compliance costs since some operations are already in compliance with the permissible exposure limit of the new standard." Id., at 27370, cols. 2 and 3. Evidence indicated that some mills had attained PEL's of 200 ug/m3 or less, while others were below the 1,000 ug/m3 total dust level.43 Therefore, OSHA disagreed with RTI's assumption that the industry had not reduced cotton dust exposure below the existing standard's 1,000 ug/m3 total dust PEL. Id., at 27370, col. 3. Third, OSHA found that the RTI study suffered from lack of recent accurate industry data. Id., at 27373, col. 1; see Ex. 6-76, Ct. of App.J.A. 858; Ex. 16, id., at 1357, 1359.
51
In light of these deficiencies in the RTI study, OSHA adopted the Hocutt-Thomas estimate for textile industry engineering controls of $543 million,44 emphasizing that, because it was based on the most recent industry data, it was more realistic than RTI's estimate. 43 Fed.Reg. 27373, col. 1 (1978).45 Nevertheless OSHA concluded that the HocuttThomas estimate was overstated for four principal reasons. First, Hocutt-Thomas included costs of achieving the existing PEL of 1,000 ug/m3, while OSHA thought it likely that compliance was more widespread and that some mills had in fact achieved the final standard's PEL. Ibid.; see n. 43, supra.46 Second, Hocutt-Thomas declined to make any allowance for the trend toward replacement of existing production machines with newer more productive equipment.47 Relying on this "[n]atural production tren[d]," 43 Fed.Reg. 27359, col. 1 (1978), OSHA concluded that fewer machines than estimated by Hocutt-Thomas would require retrofitting or other controls, id., at 27372, col. 3. Third, OSHA thought that Hocutt-Thomas failed to take into account development of new technologies likely to occur during the 4-year compliance period. Ibid.48 Fourth, OSHA believed that Hocutt-Thomas might have improperly included control costs for synthetics-only machines, ibid., an inclusion which could result in a 30% cost overestimate.49
52
Petitioners criticize OSHA's adoption of the Hocutt-Thomas estimate, since that estimate was based on achievement of somewhat less stringent PEL's than those ultimately promulgated in the final Standard.50 Thus, even if the Hocutt-Thomas estimate was exaggerated, they assert that "only by the most remarkable coincidence would the amount of that overestimate be equal to the additional costs required to attain the far more stringent limits of the Standard OSHA actually adopted." Brief for Petitioners in No. 79-1429, p. 27; see Brief for Petitioner in No. 79-1583, pp. 14-15. The agency itself recognized the problem cited by petitioners, but found itself limited in the precision of its estimates by the industry's refusal to make more of its own data available.51 OSHA explained that, "in the absence of the [industry] survey data [of textile mills], OSHA cannot develop more accurate estimates of compliance costs." 43 Fed.Reg. 27373, col. 1 (1978). Since § 6(b)(5) of the Act requires that the Secretary promulgate toxic material and harmful physical agent standards "on the basis of the best available evidence," 29 U.S.C. § 655(b)(5), and since OSHA could not obtain the more detailed confidential industry data it thought essential to further precision, we conclude that the agency acted reasonably in adopting the Hocutt-Thomas estimate.52 While a cost estimate based on the standard actually promulgated surely would be preferable,53 we decline to hold as a matter of law that its absence under the circumstances required the Court of Appeals to find that OSHA's determination was unsupported by substantial evidence.54
53
Therefore, whether or not in the first instance we would find the Secretary's conclusions supported by substantial evidence, we cannot say that the Court of Appeals in this case "misapprehended or grossly misapplied" the substantial evidence test when it found that "OSHA reasonably evaluated the cost estimates before it, considered criticisms of each, and selected suitable estimates of compliance costs." 199 U.S.App.D.C., at 79, 617 F.2d, at 661 (footnote omitted).
B
54
After estimating the cost of compliance with the Cotton Dust Standard, OSHA analyzed whether it was "economically feasible" for the cotton industry to bear this cost.55 OSHA concluded that it was, finding that "although some marginal employers may shut down rather than comply, the industry as a whole will not be threatened by the capital requirements of the regulation." 43 Fed.Reg. 27378, col. 2 (1978); see id., at 27379, col. 3 ("compliance with the standard is well within the financial capability of the covered industries"). In reaching this conclusion on the Standard's economic impact, OSHA made specific findings with respect to employment, energy consumption, capital financing availability, and profitability. Id., at 27377-27378. To support its findings, the agency relied primarily on RTI's comprehensive investigation of the Standard's economic impact.56
55
RTI evaluated the likely economic impact on the cotton industry and the United States' economy of OSHA's original proposed standard, an across-the-board 200 ug/m3 PEL. Ex. 6-76, Ct. of App.J.A. 626.57 RTI had estimated a total compliance cost of $2.7 billion for a 200 ug/m3 PEL,58 and used this estimate in assessing the economic impact of such a standard. Id., at 736-737. As described in n. 44, supra, OSHA estimated total compliance costs of $656.5 million for the final Cotton Dust Standard,59 a standard less stringent than the across-the-board 200 ug/m3 PEL of the proposed standard. Therefore, the agency found that the economic impact of its Standard would be "much less severe" than that suggested by RTI for a 200 ug/m3 PEL estimate of $2.7 billion. 43 Fed.Reg. 27378, col. 2 (1978). Nevertheless, it is instructive to review RTI's conclusions with respect to the economic impact of a $2.7 billion cost estimate. RTI found:
56
In reaching this conclusion, RTI analyzed the total and annual economic impact60 on each of the different sectors of the cotton industry.
57
For example, in yarn production (opening through spinning), RTI found that the total additional capital requirement per dollar of industry shipment was 7.8 cents, and that the corresponding annual requirement was 1.9 cents. Ex. 6-76, id., at 729. Average price increases necessary to maintain prestandard rates of return on investment were estimated to range from 0.22 cents to 6.25 cents per dollar of industry sales.61 Ibid. Even assuming no price increases, only one of the six yarn-producing operations would experience a negative rate of return on investment, while the five other rates of return would range from 1.4% to 3.9%. Id., at 652.62 RTI estimated the average prestandard rate of return for the yarn-producing sector as 4.1%. Ibid.
58
Through an output demand elasticity analysis, RTI determined that price increases necessitated by the 200 ug/m3 standard would result in a 1.68% contraction of cotton yarn consumption.63 Id., at 685; see id., at 680-687. RTI also discussed the effects of such price increases on interfiber and domestic/foreign competition. RTI observed that "non-price factors have probably dominated" the competition between cotton and manmade fibers. Id., at 623, 948-953.64 Noting that international trade agreements restricting foreign imports of textile products "have tended to smother the effects of a small change in the relative prices of domestic versus foreign textile products," id., at 622, RTI concluded that such smallchanges have had "very little impact" on domestic industries and markets, id., at 961; see id., at 954-961. In order to measure the ability of different sized textile companies to finance compliance costs, RTI constructed a ratio of capital requirements to profit after taxes. RTI found that two of the six yarn production operations would have financing difficulties, but that such difficulties decreased as company size increased. Id., at 730.65 Finally, impacts on energy costs, employment, inflation, and market structure were evaluated. See id., at 728-731.66
59
Relying on its comprehensive economic evaluation of the cotton industry's ability to absorb the $2.7 billion compliance cost of a 200 ug/m3 PEL standard, RTI concluded that "nothing in the RTI study indicates that the cotton textile industry as a whole will be seriously threatened." Ex. 16, id., at 1380.67 Therefore, it follows a fortiori that OSHA's estimated compliance cost of $656.6 million is "economically feasible."68 Even if OSHA's estimate was understated, we are fortified in observing that RTI found that a standard more than four times as costly was nevertheless economically feasible.
60
The Court of Appeals found that the agency "explained the economic impact it projected for the textile industry," and that OSHA has "substantial support in the record for its . . . findings of economic feasibility for the textile industry." 199 U.S.App.D.C., at 80, 617 F.2d, at 662. On the basis of the whole record, we cannot conclude that the Court of Appeals "misapprehended or grossly misapplied" the substantial evidence test.
IV
61
The final Cotton Dust Standard places heavy reliance on the use of respirators to protect employees from exposure to cotton dust, particularly during the 4-year interim period necessary to install and implement feasible engineering controls.69 One part of the respirator provision requires the employer to give employees unable to wear a respirator70 the opportunity to transfer to another position, if available, where the dust level meets the Standard's PEL. 29 CFR § 1910.1043(f)(2)(v) (1980). When such a transfer occurs, the employer must guarantee that the employee suffers no loss of earnings or other employment rights or benefits.71 Petitioners do not object to the transfer provision, but challenge OSHA's authority under the Act to require employers to guarantee employees' wage and employment benefits following the transfer. The Court of Appeals held that OSHA has such authority. 199 U.S.App.D.C., at 93, 617 F.2d, at 675. We hold that, whether or not OSHA has this underlying authority, the agency has failed to make the necessary determination or statement of reasons that its wage guarantee requirement is related to the achievement of a safe and healthful work environment.
62
Respondents urge several statutory bases for the authority exercised here. They cite § 2(b) of the Act, 29 U.S.C. § 651(b), which declares that the purpose of the Act is "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions"; § 2(b)(5), which suggests achievement of the purpose "by developing innovative methods, techniques, and approaches for dealing with occupational safety and health problems"; § 6(b)(5), which requires the agency to "set the standard which most adequately assures . . . that no employee will suffer material impairment of health or functional capacity . . ."; and § 3(8), which provides that a standard must require "conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment." Brief for Federal Respondent 68. Whatever methods these provisions authorize OSHA to apply, it is clear that such methods must be justified on the basis of their relation to safety or health.
63
Section 6(f) of the Act, 29 U.S.C. § 655(f), requires that "determinations of the Secretary" must be supported by substantial evidence. Section 6(e), 29 U.S.C. § 655(e), requires the Secretary to include "a statement of the reasons for such action, which shall be published in the Federal Register." In his "Summary and Explanation of the Standard," the Secretary stated: "Each section includes an analysis of the record evidence and the policy considerations underlying the decisions adopted pertaining to specific provisions of the standard." 43 Fed.Reg. 27380, col. 2 (1978). But OSHA never explained the wage guarantee provision as an approach designed to contribute to increased health protection. Instead the agency stated that the "goal of this provision is to minimize any adverse economic impact on the employee by virtue of the inability to wear a respirator." Id., at 27387, col. 3. Perhaps in recognition of this fact, respondents in their briefs argue:
64
"Experience under the Act has shown that employees are reluctant to disclose symptoms of disease and tend to minimize work-related health problems for fear of being discharged or transferred to a lower paying job. . . . It may reasonably be expected, therefore, that many employees incapable of using respirators would continue to breathe unhealthful air rather than request a transfer, thus destroying the utility of the respirator program." Brief for Federal Respondent 67.
See Brief for Union Respondents 51.72
65
Whether these arguments have merit, and they very well may,73 the post hoc rationalizations of the agency or the parties to this litigation cannot serve as a sufficient predicate for agency action. See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 419, 91 S.Ct. 814, 825, 28 L.Ed.2d 136 (1971); Burlington Truck Lines v. United States, 371 U.S. 156, 168-169, 83 S.Ct. 239, 245, 9 L.Ed.2d 207 (1962); SEC v. Chenery Corp., 318 U.S. 80, 87, 63 S.Ct. 454, 459, 87 L.Ed. 626 (1943). For Congress gave OSHA the responsibility to protect worker health and safety, and to explain its reasons for its actions. Because the Act in no way authorizes OSHA to repair general unfairness to employees that is unrelated to achievement of health and safety goals, we conclude that OSHA acted beyond statutory authority when it issued the wage guarantee regulation.74
V
66
When Congress passed the Occupational Safety and Health Act in 1970, it chose to place pre-eminent value on assuring employees a safe and healthful working environment, limited only by the feasibility of achieving such an environment. We must measure the validity of the Secretary's actions against the requirements of that Act. For "[t]he judicial function does not extend to substantive revision of regulatory policy. That function lies elsewhere—in Congressional and Executive oversight or amendatory legislation." Industrial Union Dept. v. American Petroleum Institute, supra, 448 U.S., at 663, 100 S.Ct., at 2875 (BURGER, C. J., concurring); see TVA v. Hill, 437 U.S. 153, 185, 187-188, 194-195, 98 S.Ct. 2279, 2297, 2298, 2301, 57 L.Ed.2d 117 (1978).75
67
Accordingly, the judgment of the Court of Appeals is affirmed in all respects except to the extent of its approval of the Secretary's application of the wage guarantee provision of the Cotton Dust Standard at 29 CFR § 1910.1043(f)(2)(v) (1980). To that extent, the judgment of the Court of Appeals is vacated and the case remanded with directions to remand to the Secretary for further proceedings consistent with this opinion.
68
It is so ordered.
69
Justice POWELL took no part in the decision of these cases.
70
Justice STEWART, dissenting.
71
Section 6(b)(5) of the Occupational Safety and Health Act provides:
72
"The Secretary, in promulgating standards dealing with toxic materials or harmful physical agents under this subsection, shall set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life." 29 U.S.C. § 655(b)(5) (emphasis added).
73
Everybody agrees that under this statutory provision the Cotton Dust Standard must at least be economically feasible, and everybody would also agree, I suppose, that in order to determine whether or not something is economically feasible, one must have a fairly clear idea of how much it is going to cost. Because I believe that OSHA failed to justify its estimate of the cost of the Cotton Dust Standard on the basis of substantial evidence, I would reverse the judgment before us without reaching the question whether the Act requires that a standard, beyond being economically feasible, must meet the demands of a cost-benefit examination.
74
The simple truth about OSHA's assessment of the cost of the Cotton Dust Standard is that the agency never relied on any study or report purporting to predict the cost to industry of the Standard finally adopted by the agency. OSHA did have before it one cost analysis, that of the Research Triangle Institute, which attempted to predict the cost of the final Standard. However, as recognized by the Court, ante, at 524-525, the agency flatly rejected that prediction as a gross overestimate. The only other estimate OSHA had, the Hocutt-Thomas estimate prepared by industry researchers, was not designed to predict the cost of the final OSHA Standard. Rather, it assumed a far less stringent and inevitably far less costly standard for all phases of cotton production except roving. Ante, at 527, n. 50. The agency examined the Hocutt-Thomas study, and concluded that it too was an overestimate of the costs of the less stringent standard it was addressing. I am willing to defer to OSHA's determination that the Hocutt-Thomas study was such an overestimate, conceding that such subtle financial and technical matters lie within the discretion and skill of the agency. But in a remarkable nonsequitur, the agency decided that because the Hocutt-Thomas study was an overestimate of the cost of a less stringent standard, it could be treated as a reliable estimate for the more costly final Standard actually promulgated, never rationally explaining how it came to this happy conclusion. This is not substantial evidence. It is unsupported speculation.
75
Of course, as the Court notes, this Court will re-examine a court of appeals' review of a question of substantial evidence "only in what ought to be the rare instance when the standard appears to have been misapprehended or grossly misapplied." Universal Camera Corp. v. NLRB, 340 U.S. 474, 491, 71 S.Ct. 456, 466, 95 L.Ed. 456. But I think this is one of those rare instances where an agency has categorically misconceived the nature of the evidence necessary to support a regulation, and where the Court of Appeals has failed to correct the agency's error. Of course, broad generalizations about the meaning of "substantial evidence" have limited value in deciding particular cases. But within the confines of a single statute, where the agency and reviewing courts have identified certain specific factual matters to be proved, we can establish practical general criteria for comprehending "substantial evidence."
76
Unlike the Court, I think it clear to the point of being obvious that, as a matter of law, OSHA's prediction of the cost of the Cotton Dust Standard lacks a basis in substantial evidence, since the agency did not rely on even a single estimate of the cost of the actual Standard it promulgated. Accordingly, I respectfully dissent.
77
Justice REHNQUIST, with whom THE CHIEF JUSTICE joins, dissenting.
78
A year ago I stated my belief that Congress in enacting § 6(b)(5) of the Occupational Safety and Health Act of 1970 unconstitutionally delegated to the Executive Branch the authority to make the "hard policy choices" properly the task of the legislature. Industrial Union Dept. v. American Petroleum Institute, 448 U.S. 607, 671, 100 S.Ct. 2844, 2878, 65 L.Ed.2d 1010 (1980) (concurring in judgment). Because I continue to believe that the Act exceeds Congress' power to delegate legislative authority to nonelected officials, see J. W. Hampton & Co. v. United- States, 276 U.S. 394, 48 S.Ct. 348, 72 L.Ed. 624 (1928), and Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446 (1935), I dissent.
79
I will repeat only a little of what I said last Term. Section 6(b)(5) provides in pertinent part:
80
"The Secretary, in promulgating standards dealing with toxic materials or harmful physical agents under this subsection, shall set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life." (Emphasis added.)
81
As the Court correctly observes, the phrase "to the extent feasible" contains the critical language for the purpose of these cases. We are presented with a remarkable range of interpretations of that language. Petitioners contend that the statute requires the Secretary to demonstrate that the benefits of its "Cotton Dust Standard," in terms of reducing health risks, bear a reasonable relationship to its costs. Brief for Petitioners in No. 79-1429, pp. 38-41. Respondents, including the Secretary of Labor at least until his postargument motion, counter that Congress itself balanced costs and benefits when it enacted the statute, and that the statute prohibits the Secretary from engaging in a cost-benefit type balancing. Their view is that the Act merely requires the Secretary to promulgate standards that eliminate or reduce such risks "to the extent . . . technologically or economically feasible." Brief for Federal Respondent 38; Brief for Union Respondents 26-27. As I read the Court's opinion, it takes a different position. It concludes that, at least as to the "Cotton Dust Standard," the Act does not require the Secretary to engage in a cost-benefit analysis, which suggests of course that the Act permits the Secretary to undertake such an analysis if he so chooses. Ante, at 510-512.
82
Throughout its opinion, the Court refers to § 6(b)(5) as adopting a "feasibility standard" or a "feasibility requirement." Ante, at 508-522. But as I attempted to point out last Term in Industrial Union Dept. v. American Petroleum Institute, supra, 448 U.S., at 681-685, 100 S.Ct., at 2883-2885, the "feasibility standard" is no standard at all. Quite the contrary, I argued there that the insertion into § 6(b)(5) of the words "to the extent feasible" rendered what had been a clear, if somewhat unrealistic, statute into one so vague and precatory as to be an unconstitutional delegation of legislative authority to the Executive Branch. Prior to the inclusion of the "feasibility" language, § 6(b)(5) simply required the Secretary to "set the standard which most adequately assures, on the basis of the best available professional evidence, that no employee will suffer any impairment of health. . . ." Legislative History, Occupational Safety and Health Act of 1970, p. 943 (Comm. Print 1971) (hereinafter Leg.Hist.). Had that statute been enacted, it would undoubtedly support the result the Court reaches in these cases, and it would not have created an excessive delegation problem. The Secretary of Labor would quite clearly have been authorized to set exposure standards without regard to any kind of cost-benefit analysis.
83
But Congress did not enact that statute. The legislative history of the Act reveals that a number of Members of Congress, such as Senators Javits, Saxbe, and Dominick, had difficulty with the proposed statute and engaged Congress in a lengthy debate about the extent to which the Secretary should be authorized to create a risk-free work environment. Congress had at least three choices. It could have required the Secretary to engage in a cost-benefit analysis prior to the setting of exposure levels, it could have prohibited cost-benefit analysis, or it could have permitted the use of such an analysis. Rather than make that choice and resolve that difficult policy issue, however, Congress passed. Congress simply said that the Secretary should set standards "to the extent feasible." Last year, Justice POWELL reflected that "one might wish that Congress had spoken with greater clarity." American Petroleum Institute, 448 U.S., at 668, 100 S.Ct., at 2877 (POWELL, J., concurring in part and in judgment). I am convinced that the reason that Congress did not speak with greater "clarity" was because it could not. The words "to the extent feasible" were used to mask a fundamental policy disagreement in Congress. I have no doubt that if Congress had been required to choose whether to mandate, permit, or prohibit the Secretary from engaging in a cost-benefit analysis, there would have been no bill for the President to sign.
84
The Court seems to argue that Congress did make a policy choice when it enacted the "feasibility" language. Its view is that Congress required the Secretary to engage in something called "feasibility analysis." Ante, at 509. But those words mean nothing at all. They are a "legislative mirage, appearing to some Members [of Congress] but not to others, and assuming any form desired by the beholder." American Petroleum Institute, supra, at 681, 100 S.Ct., at 2883. Even the Court does not settle on a meaning. It first suggests that the language requires the Secretary to do what is "capable of being done." Ante, at 508-509. But, if that is all the language means, it is merely precatory and "no more than an admonition to the Secretary to do his duty. . . ." Leg.Hist. 367 (remarks of Sen. Dominick). The Court then seems to adopt the Secretary's view that feasibility means "technological and economic feasibility." But there is nothing in the words of § 6(b)(5), or their legislative history, to suggest why they should be so limited. One wonders why the "requirement" of § 6(b)(5) could not include considerations of administrative or even political feasibility. As even the Court recognizes, when Congress has wanted to limit the concept of feasibility to technological and economic feasibility, it has said so. Ante, at 510. Thus the words "to the extent feasible" provide no meaningful guidance to those who will administer the law.
85
In believing that § 6(b)(5) amounts to an unconstitutional delegation of legislative authority to the Executive Branch, I do not mean to suggest that Congress, in enacting a statute, must resolve all ambiguities or must "fill in all of the blanks." Even the neophyte student of government realizes that legislation is the art of compromise, and that an important, controversial bill is seldom enacted by Congress in the form in which it is first introduced. It is not unusual for the various factions supporting or opposing a proposal to accept some departure from the language they would prefer and to adopt substitute language agreeable to all. But that sort of compromise is a far cry from this case, where Congress simply abdicated its responsibility for the making of a fundamental and most difficult policy choice—whether and to what extent "the statistical possibility of future deaths should . . . be disregarded in light of the economic costs of preventing those deaths." American Petroleum Institute, supra, at 672, 100 S.Ct., at 2879. That is a "quintessential legislative" choice and must be made by the elected representatives of the people, not by nonelected officials in the Executive Branch. As stated last Term:
86
"In drafting § 6(b)(5), Congress was faced with a clear, if difficult, choice between balancing statistical lives and industrial resources or authorizing the Secretary to elevate human life above all concerns save massive dislocation in an affected industry. That Congress recognized the difficulty of this choice is clear. . . . That Congress chose, intentionally or unintentionally, to pass this difficult choice on to the Secretary is evident from the spectral quality of the standard it selected." 448 U.S., at 685, 100 S.Ct., at 2885.
87
In sum, the Court is quite correct in asserting that the phrase "to the extent feasible" is the critical language for the purposes of these cases. But that language is critical, not because it establishes a general standard by which those charged with administering the statute may be guided, but because it has precisely the opposite effect: in failing to agree on whether the Secretary should be either mandated, permitted, or prohibited from undertaking a cost-benefit analysis, Congress simply left the crucial policy choices in the hands of the Secretary of Labor.* As I stated at greater length last Term, I believe that in so doing Congress unconstitutionally delegated its legislative responsibility to the Executive Branch.
1
This opinion will use the terms OSHA and the Secretary interchangeably when referring to the agency, the Secretary of Labor, or the Assistant Secretary for Occupational Safety and Health. The Secretary of Labor has delegated the authority to promulgate occupational safety and health standards to the Assistant Secretary. See 29 CFR § 1910.4 (1980).
2
Petitioners in No. 79-1429 include 12 individual cotton textile manufacturers, and the American Textile Manufacturers Institute, Inc. (ATMI), a trade association representing approximately 175 companies. Brief for Petitioners in No. 79-1429, pp. i, 2. In No. 79-1583, petitioner is the National Cotton Council of America, a non-profit corporation chartered for the purpose of increasing the consumption of cotton and cotton products. Brief for Petitioner in No. 79-1583, pp. 3-4.
3
The two labor organizations are the American Federation of Labor and Congress of Industrial Organizations, Industrial Union Department, AFL-CIO, and the Amalgamated Clothing & Textile Workers Union, AFL-CIO. In the Court of Appeals, the labor organizations challenged the Cotton Dust Standard as not sufficiently stringent.
4
Justice POWELL, concurring in part and in the judgment, was the only member of the Court to decide the cost-benefit issue expressly. Justice POWELL concluded that the statute "requires the agency to determine that the economic effects of its standard bear a reasonable relationship to the expected benefits." Industrial Union Dept. v. American Petroleum Institute, 448 U.S., at 667, 100 S.Ct., at 2877. Justice MARSHALL, dissenting, joined by Justice BRENNAN, Justice WHITE, and Justice BLACKMUN, indicated that the statute did not contemplate cost-benefit analysis. See id., at 717-718, n.30, 719-720, n.32, 100 S.Ct., at 2902, n.30, 2903, n.32.
5
In addition to the cost-benefit issue, the other questions presented and addressed are (1) whether substantial evidence in the record as a whole supports OSHA's determination that the Cotton Dust Standard is economically feasible; and (2) whether OSHA has the authority under the Act to require that employers guarantee the wages and benefits of employees who are transferred to other positions because of their inability to wear respirators.
6
Cotton dust is defined as "dust present in the air during the handling or processing of cotton, which may contain a mixture of many substances including ground up plant matter, fiber, bacteria, fungi, soil, pesticides, non-cotton plant matter and other contaminants which may have accumulated with the cotton during the growing, harvesting and subsequent processing or storage periods. Any dust present during the handling and processing of cotton through the weaving or knitting of fabrics, and dust present in other operations or manufacturing processes using new or waste cotton fibers or cotton fiber by-products from textile mills are considered cotton dust." 29 CFR § 1910.1043(b) (1980) (Cotton Dust Standard).
7
References are made throughout this opinion to the Joint Appendix filed in this Court (App.), and to the Joint Appendix lodged in the Court of Appeals below (Ct. of App.J.A.).
8
Known generally as the Schilling classification grades, they include:
"[Grade] 1/2: slight acute effect of dust on ventilatory capacity; no evidence of chronic ventilatory impairment.
"[Grade] 1: definite acute effect of dust on ventilatory capacity; no evidence of chronic ventilatory impairment.
"[Grade] 2: evidence of slight to moderate irreversible impairment of ventilatory capacity.
"[Grade] 3: evidence of moderate to severe irreversible impairment of ventilatory capacity." Exhibit 6-27, App. 25; see 41 Fed.Reg. 56500-56501 (1976).
"In the first few years of exposure [to cotton dust], symptoms occur on Monday, or other days after absence
9
Descriptions of the disease by individual mill workers, presented in hearings on the Cotton Dust Standard before an Administrative Law Judge, are more vivid:
"When they started speeding the looms up the dust got finer and more and more people started leaving the mill with breathing problems. My mother had to leave the mill in the early fifties. Before she left, her breathing got so short she just couldn't hold out to work. My stepfather left the mill on account of breaching [sic ] problems. He had coughing spells til he couldn't breath [sic ], like a child's whooping cough. Both my sisters who work in the mill have breathing problems. My husband had to give up his job when he was only fifty-four years old because of the breathing problems." Ct. of App.J.A. 3791.
"I suppose I had a breathing problem since 1973. I just kept on getting sick and began losing time at the mill. Every time that I go into the mill I get deathly sick, choking and vomiting losing my breath. It would blow down all that lint and cotton and I have clothes right here where I have wore and they had been washed several times and I would like for you all to see them. That will not come out in washing.
"I am only fifty-seven years old and I am retired and I can't even get to go to church because of my breathing. I get short of breath just walking around the house or dressing [or] sometimes just watching T.V. I cough all the time." Id., at 3793.
* * * * *
". . . I had to quit because I couldn't lay down and rest without oxygen in the night and my doctor told me I would have to get out of there. . . . I couln't [sic ] even breathe, I had to get out of the door so I could breathe and he told me not to go back in [the mill] under any circumstances." Id., at 3804.
Byssinosis is not a newly discovered disease, having been described as early as in the 1820's in England, App. 404-405, and observed in Belgium in a study of 2,000 cotton workers in 1845, Exhibit 6-16, App. 15.
10
As an expert representing the industry noted:
"[T]he assumption is often made that the disorder progresses from 1/2 to 1 to 2 to 3 and, thus, all grades reflect the progress of the individual's disability. In many instances, however, there is no progression at all. Sometimes Grade 3 seems to appear de novo, or there is a jump from 1 to 3 Among those who develop permanent disability, Grade 2 very often never occurs." Exhibit 41, App. 192.
11
The criterion of disability used for the 35,000-worker estimate was a Forced Expiratory Volume (FEV1) measurement of pulmonary function of 1.2 liters or less. 43 Fed.Reg. 27353, col. 3 (1978). An FEV1 of 1.2 liters "is a small fraction of the pulmonary performance of a normal lung." Ibid.; Ct. of App.J.A. 1231.
12
There are between 126,000 and 200,000 active workers in the yarn-preparation and manufacturing segments of the cotton industry. 43 Fed.Reg. 27379, col. 2 (1978).
13
Indeed the Senate Report on the Act expressly observed:
"Studies of particular industries provide specific emphasis regarding the magnitude of the problem. For example, despite repeated warnings over the years from other countries that their cotton workers suffered from lung disease, it is only within the past decade that we have recognized byssinosis as a distinct occupational disease among workers in American cotton mills." S.Rep.No.91-1282, p. 3 (1970), U.S.Code Cong. & Admin.News 1970, p. 5179, Leg.Hist. 143.
14
"Total dust" includes both respirable and nonrespirable cotton dust.
15
The Secretary of Labor adopted the threshold limit values contained in a list that had been prepared by the ACGIH.
16
Section 6(a) of the Act, as set forth in 29 U.S.C. § 655(a), provides in pertinent part:
"[T]he Secretary shall, as soon as practicable during the period beginning with the effective date of this chapter and ending two years after such date, by rule promulgate as an occupational safety or health standard . . . any established Federal standard, unless he determines that the promulgation of such a standard would not result in improved safety or health for specifically designated employees."
17
In many cotton-preparation and manufacturing operations, including opening, picking, and carding, 1,000 ug/m3 of total dust is roughly equivalent to 500 ug/m3 of respirable dust. App. 464; 43 Fed.Reg. 27361, col. 2 (1978); see n. 22, infra.
18
The Act established the National Institute for Occupational Safety and Health as part of the then Department of Health, Education, and Welfare. NIOSH is authorized, inter alia, to "develop and establish recommended occupational safety and health standards." 29 U.S.C. § 671(c)(1). At the request of the Secretary of Labor or the Secretary of HEW, or on his own initiative, the Director of NIOSH may "conduct such research and experimental programs as he determines are necessary for the development of criteria for new and improved occupational safety and health standards, and . . . after consideration of the results of such research and experimental programs make recommendations concerning new or improved occupational safety and health standards." § 671(d).
19
NIOSH presented its recommendation in a lengthy and detailed document entitled "Criteria for a Recommended Standard: Occupational Exposure to Cotton Dust." Ex. 1, Ct. of App.J.A. 11-169. The report examined the effects of cotton dust exposure and suggested implementation of work practices, engineering controls, medical surveillance, and monitoring to decrease exposure to the recommended level.
20
The Act specifies an informal rulemaking procedure to accompany the promulgation of occupational safety and health standards. See 29 U.S.C. §§ 655(b)(2), (3), (4).
21
The Standard provides that exposure to lint-free respirable cotton dust may be measured by a vertical elutriator, with its 15-micron particle size cutoff, or "a method of equivalent accuracy and precision." 29 CFR § 1910.1043(c) (1980).
22
The manufacturing of cotton textile products is divided into several different stages. (1) In the operation of opening, picking, carding, drawing, and roving, raw cotton is cleaned and prepared for spinning into yarn. Brief for Petitioners in No. 79-1429, p. 7, n. 12. (2) In the operations of spinning, twisting, winding, spooling, and warping, the prepared cotton is made into yarn and readied for weaving and other processing. Id., at 7, n. 13. (3) In slashing and weaving, the yarn is manufactured into a woven fabric. Id., at 7, n. 14. The Cotton Dust Standard defines "yarn manufacturing" to mean "all textile mill operations from opening to, but not including, slashing and weaving." 29 CFR § 1910.1043(b) (1980). See generally 43 Fed.Reg. 27365, cols. 1 and 2 (1978).
The nontextile industries covered by the Standard's 500 ug/m3 PEL include, but are not limited to, "warehousing, compressing of cotton lint, classing and marketing, using cotton yarn (i. e. knitting), reclaiming and marketing of textile manufacturing waste, delinting of cottonseed, marketing and converting of linters, reclaiming and marketing of gin motes and batting, yarn felt manufacturing using waste cotton fibers and by products." Id., at 27360, col. 3.
23
Ventilation systems include general controls, such as central air-conditioning, and local exhaust controls, with capture emissions of cotton dust as close to the point of generation as possible. See id., at 27363-27364.
24
The court remanded to the agency that portion of the Standard dealing with the cottonseed oil industry, after concluding that the record failed to establish adequately the Standard's economic feasibility. AFL-CIO v. Marshall, 199 U.S.App.D.C. 54, 87, 95, 617 F.2d 636, 669, 677 (1979).
25
The postargument motions of the several parties for leave to file supplemental memoranda are granted. We decline to adopt the suggestion of the Secretary of Labor that we should "vacate the judgment of the court of appeals and remand the case so that the record may be returned to the Secretary for further consideration and development." Supplemental Memorandum for Federal Respondent 4. We also decline to adopt the suggestion of petitioners that we should "hold these cases in abeyance and . . . remand the record to the court of appeals with an instruction that the record be remanded to the agency for further proceedings." Response of Petitioners to Supplemental Memorandum for Federal Respondent 4.
At oral argument, and in a letter addressed to the Court after oral argument, petitioners contended that the Secretary's recent amendment of OSHA's so-called "Cancer Policy" in light of this Court's decision in Industrial Union Dept. v. American Petroleum Institute, 448 U.S. 607, 100 S.Ct. 2844, 65 L.Ed.2d 1010 (1980), was relevant to the issues in the present cases. We disagree.
OSHA amended its Cancer Policy to "carry out the Court's interpretation of the Occupational Safety and Health Act of 1970 that consideration must be given to the significance of the risk in the issuance of a carcinogen standard and that OSHA must consider all relevant evidence in making these determinations." 46 Fed.Reg. 4889, col. 3 (1981). Previously, although lacking such evidence as dose-response data, the Secretary presumed that no safe exposure level existed for carcinogenic substances. Industrial Union Dept. v. American Petroleum Institute, supra, at 620, 624-625, 635-636, nn. 39 and 40, 100 S.Ct., at 2853, 2855, 2861, nn. 39 and 40 (plurality opinion). Following this Court's decision, OSHA deleted those provisions of the Cancer Policy which required the "automatic setting of the lowest feasible level" without regard to determinations of risk significance. 46 Fed.Reg. 4890, col. 1 (1981).
In distinct contrast with its Cancer Policy, OSHA expressly found that "exposure to cotton dust presents a significant health hazard to employees," 43 Fed.Reg. 27350, col. 1 (1978), and that "cotton dust produced significant health effects at low levels of exposure," id., at 27358, col. 2. In addition, the agency noted that "grade 1/2 byssinosis and associated pulmonary function decrements are significant health effects in themselves and should be prevented in so far as possible." Id., at 27354, col. 2. In making its assessment of significant risk, OSHA relied on dose-response curve data (the Merchant Study) showing that 25% of employees suffered at least Grade 1/2 byssinosis at a 500 ug/m3 PEL, and that 12.7% of all employees would suffer byssinosis at the 200 ug/m3 PEL standard. Id., at 27358, cols. 2 and 3. Examining the Merchant Study in light of other studies in the record, the agency found that "the Merchant study provides a reliable assessment of health risk to cotton textile workers from cotton dust." Id., at 27357, col. 3. OSHA concluded that the "prevalence of byssinosis should be significantly reduced" by the 200 ug/m3 PEL. Id., at 27359, col. 3; see id., at 27359, col. 1 ("200 ug/m3 represents a significant reduction in the number of affected workers"). It is difficult to imagine what else the agency could do to comply with this Court's decision in Industrial Union Dept. v. American Petroleum Institute.
26
Petitioners ATMI et al. express their position in several ways. They maintain that OSHA "is required to show that a reasonable relationship exists between the risk reduction benefits and the costs of its standards." Brief for Petitioners in No. 79-1429, p. 36. Petitioners also suggest that OSHA must show that "the standard is expected to achieve a significant reduction in [the significant risk of material health impairment]" based on "an assessment of the costs of achieving it." Id., at 38, 40. Allowing that "[t]his does not mean that OSHA must engage in a rigidly formal cost-benefit calculation that places a dollar value on employee lives or health," id., at 39, petitioners describe the required exercise as follows:
"First, OSHA must make a responsible determination of the costs and risk reduction benefits of its standard. Pursuant to the requirement of Section 6(f) of the Act, this determination must be factually supported by substantial evidence in the record. The subsequent determination whether the reduction in health risk is 'significant' (based upon the factual assessment of costs and benefits) is a judgment to be made by the agency in the first instance." Id., at 40.
Respondent Secretary disputes petitioners' description of the exercise, claiming that any meaningful balancing must involve "placing a [dollar] value on human life and freedom from suffering," Brief for Federal Respondent 59, and that there is no other way but through formal cost-benefit analysis to accomplish petitioners' desired balancing, id., at 59-60. Cost-benefit analysis contemplates "systematic enumeration of all benefits and all costs, tangible and intangible, whether readily quantifiable or difficult to measure, that will accrue to all members of society if a particular project is adopted." E. Stokey & R. Zeckhauser, A Primer for Policy Analysis 134 (1978); see Commission on Natural Resources, National Research Council, Decision Making for Regulating Chemicals in the Environment 38 (1975). See generally E. Mishan, Cost-Benefit Analysis (1976); Prest & Turvey, Cost-Benefit Analysis, 300 Economic Journal 683 (1965). Whether petitioners' or respondent's characterization is correct, we will sometimes refer to petitioners' proposed exercise as "cost-benefit analysis."
27
As described by the union respondents, the test for determining whether a standard promulgated to regulate a "toxic material or harmful physical agent" satisfies the Act has three parts:
"First, whether the 'place of employment is unsafe—in the sense that significant risks are present and can be eliminated or lessened by a change in practices.' [Industrial Union Dept., supra, at 642, 100 S.Ct., at 2864 (plurality opinion).] Second, whether of the possible available correctives the Secretary has selected 'the standard . . . that is most protective.' Ibid. Third, whether that standard is 'feasible.' " Brief for Union Respondents 40-41.
We will sometimes refer to this test as "feasibility analysis."
28
Section 6(b)(5) of the Act, 29 U.S.C. § 655(b)(5), also provides:
"Development of standards under this subsection shall be based upon research, demonstrations, experiments, and such other information as may be appropriate. In addition to the attainment of the highest degree of health and safety protection for the employee, other considerations shall be the latest available scientific data in the field, the feasibility of the standards, and experience gained under this and other health and safety laws. Whenever practicable, the standard promulgated shall be expressed in terms of objective criteria, and of the performance desired."
29
In these cases we are faced with the issue whether the Act requires OSHA to balance costs and benefits in promulgating a single toxic material and harmful physical agent standard under § 6(b)(5) Petitioners argue that without cost-benefit balancing, the issuance of a single standard might result in a "serious misallocatio[n] of the finite resources that are available for the protection of worker safety and health," given the other health hazards in the workplace. Reply Brief for Petitioners in No. 79-1429, p. 10; see Brief for Petitioners in No. 79-1429, pp. 38-39; Brief for Chamber of Commerce of United States as Amicus Curiae 12; Brief for American Industrial Health Council as Amicus Curiae 19. This argument is more properly addressed to other provisions of the Act which may authorize OSHA to explore costs and benefits for deciding between issuance of several standards regulating different varieties of health and safety hazards, e. g., § 6(g) of the Act, 29 U.S.C. § 655(g); see Industrial Union Dept. v. American Petroleum Institute, 448 U.S., at 643-644, 100 S.Ct., at 2865; see also Case Comment, 60 B.U.L.Rev. 115, 122, n. 52 (1980), or for promulgating other types of standards not issued under § 6(b)(5). We express no view on these questions.
30
See, e. g., Energy Policy and Conservation Act of 1975, 42 U.S.C. §§ 6295(c), (d) (1976 ed., Supp.III); Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. §§ 1312(b)(1), (2), 1314(b)(1)(B); Clean Water Act of 1977, 33 U.S.C. § 1314(b)(4)(B) (1976 ed., Supp.III); Clean Air Act Amendments of 1970, 42 U.S.C. § 7545(c)(2)(B) (1976 ed., Supp.III). In the Federal Water Pollution Control Act Amendments of 1972, Congress directed the Administrator to consider "the total cost of application of technology in relation to the effluent reduction benefits to be achieved from such application." 33 U.S.C. § 1314(b)(1) ("BPT" limitations). With regard to 1987 effluent limitations, the Administrator is directed to consider total cost, but not in comparison with effluent reduction benefits. § 1314(b)(2)(B) ("BAT" limitations). See
EPA v. National Crushed Stone Assn., 449 U.S. 64, 71, n. 10, 76-77, 101 S.Ct. 295, 300, n. 10, 303, 66 L.Ed.2d 268 (1980).
In other statutes, Congress has used the phrase "unreasonable risk," accompanied by explanation in legislative history, to signify a generalized balancing of costs and benefits. See, e. g., the Consumer Product Safety Act of 1972, 15 U.S.C. § 2056(a) ("unreasonable risk of injury"); H.R.Rep. No. 92-1153, p. 33 (1972) (where the House stated: "It should be noted that the Commission's authority to promulgate standards under this bill is limited to instances where the hazard associated with a consumer product presents an unreasonable risk of death, injury, or serious or frequent illness. . . . Protection against unreasonable risks is central to many Federal and State safety statutes and the courts have had broad experience in interpreting the term's meaning and application. It is generally expected that the determination of unreasonable hazard will involve the Commission in balancing the probability that risk will result in harm and the gravity of such harm against the effect on the product's utility, cost, and availability to the consumer"); S.Rep. No. 92-749, pp. 14-15 (1972). See also Aqua Slide 'N' Dive Corp. v. Consumer Product Safety Comm'n, 569 F.2d 831, 839 (CA5 1978); Forester v. Consumer Product Safety Comm'n, 182 U.S.App.D.C. 153, 168, 559 F.2d 774, 789 (1977). The error of several cases finding a cost-benefit analysis mandate in the Act is their reliance on the different language and clear legislative history of the Consumer Product Safety Act to reach their conclusions. See Texas Independent Ginners Assn. v. Marshall, 630 F.2d 398, 410 (CA5 1980); American Petroleum Institute v. OSHA, 581 F.2d 493, 502-503 (CA5 1978) aff'd on other grounds, Industrial Union Dept. v. American Petroleum Institute, supra.
Senator Chiles was sufficiently certain that the Act did not contemplate cost-benefit analysis that he introduced in amendment in 1973 that, inter alia, "directs the Secretary to recognize the cost-benefit ratio in promulgating a new standard and to publish information relative to the projected financial impact. This provision will promote the development of standards justifiable in terms of the benefits to be derived and afford those to be affected an opportunity to make a reasoned evaluation of the proposal." 119 Cong.Rec. 42151 (1973).
31
In addition, as the legislative history makes plain, see infra, at 517-518, any standard that was not economically or technologically feasible would a fortiori not be "reasonably necessary or appropriate" under the Act. See Industrial Union Dept. v. Hodgson, 162 U.S.App.D.C. 331, 342, 499 F.2d 467, 478 (1974) ("Congress does not appear to have intended to protect employees by putting their employers out of business").
32
This is not to say that § 3(8) might not require the balancing of costs and benefits for standards promulgated under provisions other than § 6(b)(5) of the Act. As a plurality of this Court noted in Industrial Union Dept., if § 3(8) had no substantive content, "there would be no statutory criteria at all to guide the Secretary in promulgating either national consensus standards or permanent standards other than those dealing with toxic materials and harmful physical agents." 448 U.S., at 640, n.45, 100 S.Ct., at 2863, n.45. Furthermore, the mere fact that a § 6(b)(5) standard is "feasible" does not mean that § 3(8)'s "reasonably necessary or appropriate" language might not impose additional restraints on OSHA. For example, all § 6(b)(5) standards must be addressed to "significant risks" of material health impairment. Id., at 642, 100 S.Ct., at 2864. In addition, if the use of one respirator would achieve the same reduction in health risk as the use of five, the use of five respirators was "technologically and economically feasible," and OSHA thus insisted on the use of five, then the "reasonably necessary or appropriate" limitation might come into play as an additional restriction on OSHA to choose the one-respirator standard. In this case we need not decide all the applications that § 3(8) might have, either alone or together with § 6(b)(5).
33
Although both versions of the Act contained provisions identical to § 3(8), 29 U.S.C. § 652(8), there is no discussion in the legislative history of the meaning of the phrase "reasonably necessary or appropriate."
"The Secretary, in promulgating standards under this subsection, shall set the standard which most adequately assures, on the basis of the best available professional evidence, that no employee will suffer any impairment of health or functional capacity, or diminished life expectancy even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life." H.R.Rep. No. 91-1291, p. 4 (1970) (to accompany H.R. 16785), Leg.Hist. 834.
34
Petitioners' primary legislative history argument is that Senator Javits "took the position that OSHA standards should be 'feasible' in the sense of being 'reasonable' and 'practical' as well as technologically achievable." Brief for Petitioners in No. 79-1429, p. 32. A review of the record belies this contention. Senator Javits himself had introduced the administration's bill, S. 2788, 91st Cong., 1st Sess. (1969), which he observed contained no criteria for issuance of standards. Leg.Hist. 31, 39-42. That proposed legislation, which established a National Occupational Safety and Health Board to promulgate standards, required the Board to submit proposed standards to an appropriate national standards-producing organization "to prepare a report on the technical feasibility, reasonableness and practicality of such standard." Id., at 39. Furthermore, either the Secretary of Labor or the Secretary of Health, Education, and Welfare could object to a proposed standard on the basis, inter alia, that it "is not feasible," id., at 40, at which point the Board could reaffirm the standard by a majority vote, ibid. President Nixon's message accompanying S. 2788, which Senator Javits inserted in the Congressional Record, described the "report on the technical feasibility, reasonableness and practicality of such standard" under the Act as a "report on the feasibility of the proposed standards." 115 Cong.Rec. 22517 (1969).
From this slim reed petitioners fashion their legislative history argument. But even if Senator Javits fully subscribed to statements by President Nixon on the proposed legislation, of which there is some doubt, see id., at 22512, this hardly supports the view that the Senator's addition of the feasibility requirement to the Williams bill included any such baggage. After all, the Senator described his amendment only with the word "feasible," and specifically distinguished the amended Williams bill from the administration's, on the basis of the latter's lack of criteria.
35
Senator Dominick gave several examples. For instance:
"[L]et us take a fellow who is a streetcar conductor or a bus conductor at the present time. How in the world, in the process of the pollution we have in the streets or in the process of automobile accidents that we have all during a working day of anyone driving a bus or trolley car, or whatever it may be, can we set standards that will make sure he will not have any risk to his life for the rest of his life? It is totally impossible for this to be put in a bill; and yet it is in the committee bill." 116 Cong.Rec. 37337 (1970), Leg.Hist. 423. See also 116 Cong.Rec., at 37614, 36522, Leg.Hist. 481, 345.
36
In acceding, the House obtained Senate agreement to another amendment, now § 6(b)(6)(A) of the Act, that allowed employers to petition for a temporary variance from an occupational safety and health standard in certain cases, except that "[e]conomic hardship is not to be a consideration for the qualification for a temporary extension order." H.R.Conf. Rep. No. 91-1765, p. 35 (1970), U.S.Code Cong. & Admin.News 1970, p. 5231, Leg.Hist. 1188. The Conference Report limited the variance procedure to the following cases:
"unavailability of professional or technical personnel or of necessary materials or equipment or because necessary construction or alteration of facilities cannot be completed on time. . . . Such an order may be issued for a maximum period of one year and may not be renewed more than twice." Ibid., U.S.Code Cong. & Admin.News 1970, p. 5231.
37
Because the costs of compliance would weigh particularly heavily on small businesses, Congress provided in § 28 of the Act an amendment to the Small Business Act, 15 U.S.C. § 636, making small businesses eligible for economic assistance through the Small Business Administration to comply with standards promulgated by the Secretary. 84 Stat. 1618, Leg.Hist. 1257. Senator Dominick explained:
"There is a provision in the bill which recognizes the impact that this particular legislation may have on small businesses. . . . It permits the Secretary to make loans to small businesses wherever the standards that are set by the National Government are so severe as to have caused a real and substantial economic injury. Under those circumstances the Secretary is entitled, through the Small Business Administration, to make loans to those businesses to get them over the hump, because of the need for new equipment, or because of new conditions within the shop, which would permit them to continue in operation.
"I think that is a very significant and important provision for minimizing economic injury which could occur if the bill resulted in situations which would have very serious effects on businesses." 116 Cong.Rec. 37631 (1970), Leg.Hist. 525.
"One may well ask too expensive for whom? Is it too expensive for the company who for lack of proper safety equipment loses the services of its skilled employees? Is it too expensive for the employee who loses his hand or leg or eyesight? Is it too expensive for the widow trying to raise her children on meager allowance under workmen's compensation and social security? And what about the man—a good hardworking man—tied to a wheel chair or hospital bed for the rest of his life? That
38
Congress was concerned that some employers not obtain a competitive advantage over others by declining to invest in worker health and safety:
"Although many employers in all industries have demonstrated an exemplary degree of concern for health and safety in the workplace, their efforts are too often undercut by those who are not so concerned. Moreover, the fact is that many employers particularly smaller ones—simply cannot make the necessary investment in health and safety, and survive competitively, unless all are compelled to do so." S.Rep. 91-1282, p. 4 (1970), U.S.Code Cong. & Admin.News 1970, p. 5180, Leg.Hist. 144.
39
See, e. g., 116 Cong.Rec. 38386 (1970), Leg.Hist. 1030-1031 (remarks of Cong. Dent):
"Although I am very much disturbed over adding new costs to the operation of our production facilities because of the threats from abroad, I would say there is a greater concern and that must be for the production men who do the producing—the men who work in the service industries and the men and women in this country who daily go out and keep the economy moving and make it safe for all of us to live and to work and to be able to prosper in it."
"[T]he economic impact of industrial deaths and disability is staggering. Over $1.5 billion is wasted in lost wages, and the annual loss to the Gross National Product is estimated to be over $8 billion. Vast resources that could be available for productive use are siphoned off to pay workmen's compensation benefits and medical expenses." S.Rep. No. 91-1282, p. 2 (1970), U.S.Code Cong. & Admin.News 1970, p. 5178; Leg.Hist. 142.
40
See RTI, Cotton Dust: Technological Feasibility Assessment and Final Inflationary Impact Statement (1976), Ex. 6-76, Ct. of App.J.A. 457, 573-748; RTI, Technological Feasibility and Economic Impact of Regulations for Cotton Dust: Testimony to be Presented by the Research Triangle Institute at Public Hearing (1977), Ex. 16, id., at 1320, 1351-1357. The industry estimates were presented by Hovan Hocutt and Arthur Thomas, employees of dust control equipment manufacturers. Statement of Hovan Hocutt, Senior Vice President, Engineering, Pneumafil Corp., Ex. 60, id., at 2228-2247; Statement of Arthur Thomas, Senior Vice President, The Bahnson Co., Ex. 62, id., at 2248-2257. OSHA referred collectively to these two statements as the Hocutt-Thomas estimate.
41
RTI estimated compliance costs of $984.4 million for yarn production (opening through spinning), Ex. 6-76, id., at 473, and $127.7 million for yarn processing (winding through weaving/slashing) id., at 600. In another part of its study, RTI estimated yarn production costs of $885.6 million. Id., at 589. The explanation for this discrepancy is not readily apparent from the record, although it may be attributable to cost estimates for different years.
42
RTI made what it called a "conservative estimate" that "controls would be applied to all the production equipment in mills processing cotton and cotton-synthetic blends, even if part of their product is pure synthetic." Id., at 585.
43
RTI's David LeSourd explained that RTI did not have data on the degree of compliance for the industry as a whole, but only for some specific mills. Id., at 3637-3638. Therefore RTI merely assumed that industry-wide PEL's were at a 1,000 ug/m3 total dust PEL. Ex. 6-76, id., at 579-580. The record contains conflicting evidence on the actual level of control in the industry. Some evidence suggests compliance by mills substantially better than the 1,000 ug/m3 total dust level. See, e. g., Ex. 47, id., at 2037 (66% of Burlington Industries work areas at or below 500 ug/m3, 28% below 200 ug/m3); Ex. 78, id., at 2387. One expert, commenting on another study, observed that "substantial proportions of the industry are, in fact, within compliance of [200 ug/m3]." Id., at 3637. Other evidence in the record suggests that some segments of the industry are not in compliance with the 1,000 ug/m3 total dust PEL. See, e. g., id., at 3939 (criticizing RTI assumption of compliance). In any event, OSHA found that the "actual level of controls in the cotton industry could not be determined" on the basis of data available to RTI at the time of its study. 43 Fed.Reg. 27370, col. 3 (1978).
44
OSHA's cost estimate included $543 million for engineering controls (the Hocutt-Thomas estimate), $7 million for monitoring, medical surveillance, and other provisions (the RTI estimate), $31.5 million for waste processing, and $75 million for seed processing, for a total of $656.5 million. Id., at 27380, col. 1.
45
The Hocutt-Thomas study based its estimates on data obtained from a recent ATMI survey of cotton mills. Completed questionnaires from 353 mills, which processed 80% of the cotton bales in the United States, were returned. Ex. 60, Ct. of App.J.A. 2231.
46
The Hocutt-Thomas study included an allowance for existing compliance efforts, by subtracting from its total estimate the cost of all engineering controls purchased by the industry prior to February 11, 1977. Id., at 2232, 2247. Whether this is a sufficient proxy for current industry compliance is not apparent from the record. Hocutt himself admitted that he did not have figures on what portion of the industry was meeting the 1,000 ug/m3 total dust PEL. Id., at 3941.
47
John Figh, a vice president at Chase Manhattan Bank specializing in the textile industry, commented on the trend toward modernizing equipment in the mills:
"[B]y continuing to upgrade plants with the most modern and efficient equipment, the textile manufacturing industry will likely not be required due to demand to add much in the way of new bricks and mortar. There may be some individual cases of out-of-date facilities being replaced by new buildings; but for the most part, I believe we will see more in the way of modernization of existing plants. . . ." Ex. 63, id., at 2260 (emphasis added).
One study explained why the costs of controls should be lower if a mill converts to new equipment as opposed to retrofitting old machines:
"1) The operating cost of new equipment with controls on that equipment is less than the operating cost of the old equipment with controls necessary for the older, slower equipment to meet proscribed [sic] dust levels; and 2) by going to newer equipment with controls there is a likelihood that increased production rates will result in recovery of some or all of the capital cost of control." Ex. 79A, id., at 2532; see Ex. 79C, id., at 2550-2551; Ex. 63, id., at 2261; Ex. 78, id., at 2376-2377.
48
Chase Manhattan Bank vice president Figh noted that "[t]here does not appear to be any vast new technology on the horizon," but that "[a]s for new machinery, evolutionary changes are continuing at what appears to me to be about the same rate as in the last few years." Ex. 63, id., at 2260-2261. One study is particularly critical of the assumption of a "static state of technology," Ex. 78, id., at 2380, and documents technological advances that can be expected, id., at 2380-2386. Some experts were less optimistic of the role of technology. See, e. g. id., at 3643-3644 (RTI study).
49
Hocutt-Thomas had some information on the "ratio of synthetics to cotton in blends" in the mills, but it is not clear from the record if and how they used this information. Ex. 60, id., at 2230.
50
The final Cotton Dust Standard calls for PEL's of 200 ug/m3 in opening through roving and spinning through warping, and 750 ug/m3 for slashing and weaving. The Hocutt-Thomas study similarly assumed a 200 ug/m3 PEL for opening through roving, but assumed less stringent PEL's of 500 ug/m3 for spinning through warping, and 1,000 ug/m3 for slashing and weaving.
51
For example, in questioning before an Administrative Law Judge, Hocutt answered:
"Well, I'm beginning to wish I hadn't said anything about this, which I did, and I have to be helpful. Practically all of this information that I have is confidential and I couldn't reveal any of the sources. You can only take my word for the figures. I can't substantiate it in any manner." Id., at 3929.
Petitioners note, however, that the industry subsequently provided its survey data to OSHA, and that the only information deleted was confidential information withheld by agreement with the agency in order to prevent identification of specific mills. Reply Brief for Petitioners in No. 79-1429, p. 23, n. 32; see App. 388-390. OSHA responds that, "[b]ecause the number of machines was deleted and correlated dust data were not supplied, the data could not be used to support a specific cost adjustment." Brief for Federal Respondent 64, n. 70. In any event, no contention is made that OSHA had access to Hocutt's own data used to calculate his cost estimate.
52
Both petitioners and respondents attempt their own calculations from evidence in the record to show the unreasonableness or reasonableness of OSHA's rough equation between the Hocutt-Thomas overstatement in costs and the expense of achieving a standard somewhat more stringent for some operations. See, e. g., Brief for Petitioner in No. 79-1583, pp. 9-10; Brief for Union Respondents 14-18. Such manipulation of the data suggests a wide margin of error for any estimate, whether it be OSHA's, the industry's, or the unions'. Viewed in that light, the agency's candor in confessing its own inability to achieve a more precise estimate should not precipitate a judicial review that nonetheless demands what the congressionally delegated "expert" says it cannot provide.
53
The Secretary originally asked RTI to prepare cost estimates for several PEL levels, including 500, 200, and 100 ug/m3. Ex. 6-76, Ct. of App.J.A. 509. Clearly the Secretary intended to have cost information on the different PEL's that he might promulgate. Although RTI provided estimates for these levels in its final report, OSHA found them to be too unreliable to adopt as final estimates. See supra, at 524-525.
Even if the Secretary had wanted to obtain a cost estimate based on confidential industry data for the actual PEL's in the adopted Standard, he would have been unable to do so. Hocutt had concluded that it was technologically impractical to achieve PEL's below 500 ug/m3 for the operations of spinning through warping, Ex. 60, Ct. of App.J.A. 2239-2241, and PEL's below 1,000 ug/m3 for weaving and slashing, id., at 2241-2243. Therefore, he declined to prepare cost estimates of a 200 ug/m3 PEL for those operations. The Secretary obviously disagreed with his judgment of technological feasibility. We also note that, although petitioners challenged the technological feasibility of the final Cotton Dust Standard in the Court of Appeals, they have abandoned such challenge here. Brief for Petitioners in No. 79-1429, p. 8, n. 16.
54
The Court of Appeals observed that "the agency's underlying cost estimates are not free from imprecision," 199 U.S.App.D.C., at 80, 617 F.2d, at 662, but that "[t]he very nature of economic analysis frequently imposes practical limits on the precision which reasonably can be required of the agency," id., at 79, 617 F.2d, at 661. We suspect that this results not only from the difficulty of obtaining accurate data, but also from the inherent crudeness of estimation tools. Of necessity both the RTI and Hocutt-Thomas studies had to rely on assumptions the truth or falsity of which could wreak havoc on the validity of their final numerical cost estimates. As the official charged by Congress with the promulgation of occupational safety and health standards that protect workers "to the extent feasible," the Secretary was obligated to subject such assumptions to careful scrutiny, and to decide how they might affect the correctness of the proffered estimates.
55
In one of their questions presented, petitioners ATMI et al. ask whether "the statutory requirement that compliance with an OSHA standard must be 'economically feasible' can be satisfied merely by the agency's conclusion that the standard will not put the affected industry out of business." Pet. for Cert. in No. 79-1429, p. 2. However, in argument in their brief petitioners appear to treat this issue primarily as a substantial evidence question. See Brief for Petitioners in No. 79-1429, pp. 24-31. They finally summarize their position as follows:
"OSHA must present a responsible prediction, supported by substantial evidence, of what its standard will cost and what impact it will have on such factors as production, employment, competition, and prices. And the agency must explain in a cogent manner—on the basis of intelligible criteria—why it concludes that a standard having such an economic impact is 'feasible.' " Id., at 35 (footnote omitted).
As our review of OSHA's economic feasibility determination demonstrates, OSHA presented a "responsible prediction" of what its Standard would cost and its impact on "production, employment, competition, and prices." The agency concluded that its Standard is feasible because "compliance with [it] is well within the financial capability of the covered industries." 43 Fed.Reg. 27379, col. 3 (1978). OSHA also found that the industry "will be able to meet the demands for production of cotton products." Id., at 27378, col. 2. We take these findings to mean, as the Secretary suggests, that "[a]t bottom, the Secretary must [and did] determine that the industry will maintain long-term profitability and competitiveness." Brief for Federal Respondent 49. See also United Steelworkers of America v. Marshall, 208 U.S.App.D.C. 60, 136, 647 F.2d 1189, 1265 (1981) ("the practical question is whether the standard threatens the competitive stability of an industry"); Industrial Union Department v. Hodgson, supra, 162 U.S.App.D.C., at 342, 499 F.2d, at 478. This interpretation by the Secretary is certainly consistent with the plain meaning of the word "feasible." See Industrial Union Dept. v. American Petroleum Institute, 448 U.S., at 717-718, n. 30, 100 S.Ct., at 2902, n. 30 (MARSHALL, J., dissenting). Therefore, these cases do not present, and we do not decide, the question whether a standard that threatens the long-term profitability and competitiveness of an industry is "feasible" within the meaning of § 6(b)(5) of the Act, 29 U.S.C. § 655(b)(5).
56
In contrast to the compliance cost estimates prepared by RTI, OSHA did not find any major flaws with RTI's study of the economic impact of compliance costs.
57
RTI specifically analyzed the impact of the Standard on the following areas in the cotton industry:
"1) Additional employment requirements.
"2) Energy consumption.
"3) Increases in production costs and consequent price increases by affected industries.
"4) Capital requirements and capital financing problems.
"5) Competition effects on profit and market structure.
"6) Inflationary impact on consumers and U.S. economy.
"7) Employment impact due to the contraction of output demand."
Ex. 6-76, Ct. of App.J.A. 626.
RTI also examined the economic impact of two other across-the-board PEL's of 500 ug/m3 and 100 ug/m3. Ibid.
58
This cost estimate included $984.4 million for yarn production (opening through spinning), $1,387.9 billion for winding through weaving/slashing $292.2 million for cotton ginning, and $32 million for waste processing. Id., at 737.
59
Cotton ginning was the subject of a separate regulation not at issue here. 43 Fed.Reg. 27350, col. 1 (1978); see 29 CFR § 1910.1046 (1980).
"Implementation of the proposed [200 ug/m3] standard will require adjustments within the cotton textile industry that will take time to work themselves out and that may be difficult for many firms. In time, however prices may be expected to rise and markets to adjust so that revenues will cover costs. Although the impact on any one firm cannot be specified in advance, nothing in the RTI study indicates that the cotton textile industry as a whole will be seriously threatened by the impact of the proposed standard for control of cotton dust exposure." Ex. 16, Co. of App.J.A. 1380; id., at 3620.
60
RTI's annual cost-of-compliance figure contained three components: an annualized capital charge, direct operating cost, and energy cost. Ex. 6-76, Ct. of App.J.A. 643. The annualized capital charge consisted of depreciation, interest, administrative overhead, property tax, and insurance. Ibid. Depreciation and interest were computed "by use of a capital recovery factor based upon the concept of capital rent, the value of which depends on the operating life of the equipment and the market interest rate." Ibid.
61
Petitioners' primary criticism of OSHA's reliance on the RTI study derives from their disagreement with RTI's assumption that compliance costs would be passed on to the consumers. Brief for Petitioners in No. 79-1429, pp. 28-29. This characterization misstates RTI's position. In calculating price increases necessary to maintain prestandard rates of return, RTI "decided to adopt an extreme assumption of zero price demand elasticity in computing post-control price increases" because of difficulties in obtaining data necessary to compute elasticities for cotton yarns. Ex. 6-76, Ct. of App.J.A. 657. However, RTI carefully tested this assumption to determine "how much bias" it would introduce into the analysis. Id., at 657-659. RTI concluded that, "unless the true demand elasticity for the output of the given sector is substantially greater than unity, our impact analysis based on the assumption of zero price elasticity of demand would not be invalidated." Id., at 659. Therefore, unless a 1% increase in price was met with substantially more than a 1% decrease in demand, RTI's estimates of the price increases necessary to maintain prestandard rates of return were valid. Since there was no evidence suggesting such an effect, RTI proceeded with its assumption.
In any event, RTI subsequently investigated short-term price elasticities of demand for 25 cotton consumer products, finding that 19 of them had elasticities less than or equal to unity. Id., at 681.
62
RTI found higher price increases and lower rates of return when framing its analysis in pounds of cotton yarn produced. See id., at 654, 729-730.
63
Petitioner National Cotton Council of America criticizes RTI's use of short-term price elasticity coefficients, claiming that this underestimates long-term demand responses to price increases. Brief for Petitioner in No. 79-1583, pp. 16-17. However, RTI's Dr. Lee, who conducted the elasticity analysis, observed that he used two independent procedures to compute demand contraction, and only one relied on short-term price elasticities. Ct. of App.J.A. 3626-3627. His "main procedure [was] input output table procedures," which produced an even smaller demand contraction estimate than those calculations relying on the short-term coefficients. Ibid.
64
RTI cited such nonprice factors as "research expenditures, promotion and advertising, fiber and fabric development, fiber properties, and care characteristics of fabric." Ex. 6-76, id., at 623. John Figh, Chase Manhattan Bank vice president, observed that "polyester has grown at the expense of cotton over the last 10 years and I think it has penetrated most of the markets it can penetrate. . . . [T]he majority of it, the growth of polyester at the expense of cotton, has been completed." App. 474-475. He noted that some cotton products, such as towels and 100%-cotton men's shirts, enjoy the support of consumer preferences. Ibid. Although RTI cited the energy crisis without detailing its possible impact on manmade fiber products, Ex. 6-76, Ct. of App.J.A. 948, OSHA observed that changes in petroleum prices, a key ingredient in synthetic products, may have important impacts on the competitive balance, see 43 Fed.Reg. 27370, col. 2 (1978).
65
Two of the six yarn production operations had ratios less than 1, two had ratios less than 2, and the remaining two were less than 6. Ex. 6-76, Ct. of App.J.A. 665. Chase Manhattan Bank's John Figh agreed with RTI's assessment that financing the $2.7 billion compliance cost for a 200 ug/m3 PEL standard would be most difficult for smaller textile companies. Ex. 63, id., at 2264-2265.
66
RTI conducted similar economic impact analyses, although in less depth, for the twisting through weaving and waste-processing sectors of the cotton industry covered by the proposed 200 ug/m3 PEL standard. Ex. 6-76, id., at 462. RTI found, for example, that price increases per dollar of industry sales ranged from 0.5 cents to 18 cents for twisting through weaving operations, and that some of these operations would experience "severe" financing difficulties. Id., at 733-734. To recount in further detail these conclusions would be an irrelevant exercise. RTI calculated that a 200 ug/m3 standard for weaving/slashing would cost $1.259 billion, id., at 600, and computed the economic impact based on that figure. But RTI had also estimated that compliance costs for a 500 ug/m3 PEL would be zero. Ibid. Since the final Cotton Dust Standard sets a 750 ug/m3 PEL for weaving/slashing, further review of RTI's conclusion with respect to its $1.259 billion cost is particularly unnecessary.
67
Petitioners note that, although RTI estimated that compliance with the Cotton Dust Standard would take eight or more years, OSHA required compliance within four years. Brief for Petitioners in No. 79-1429, p. 29. RTI chose an 8-year period primarily because of "problems the control industry may have in supplying the required equipment." App. 415; see id., at 415-416. If this proves to be the case, then presumably individual mills will be able to obtain variances from the Standard's requirements because of technological infeasibility. See 29 CFR § 1910.1043(e)(1) (1980); 29 U.S.C. § 655(b).
68
Perhaps in light of this fact, neither petitioners ATMI et al. nor petitioner National Cotton Council of America frame their "economic impact" substantial evidence arguments based on OSHA's estimate of compliance costs. Instead, they adopt as a minimum RTI's $2.7 billion estimate for compliance costs with the proposed standard's 200 ug/m3 PEL. Brief for Petitioner in No. 79-1583, pp. 15-16; Brief for Petitioners in No. 79-1429, p. 29.
69
The final Standard, 29 CFR § 1910.1043(f)(1) (1980), provides:
"Where the use of respirators is required under this section, the employer shall provide, at no cost to the employee, and assure the use of respirators which comply with the requirements of this paragraph (f). Respirators shall be used in the following circumstances:
"(i) During the time periods necessary to install or implement feasible engineering controls and work practice controls;
"(ii) During maintenance and repair activities in which engineering and work practice controls are not feasible;
"(iii) In work situations where feasible engineering and work practice controls are not yet sufficient to reduce exposure to or below the permissible exposure limit; and
"(iv) In operations specified under paragraph (g)(1);
"(v) Whenever an employee requests a respirator."
70
An employee may be unable to wear a respirator because of facial irritation, severe discomfort, or impaired breathing. 43 Fed.Reg. 27387, cols. 1 and 2 (1978).
71
The regulation, 29 CFR § 1910.1043(f)(2)(v) (1980) (emphasis added), provides:
"Whenever a physician determines that an employee is unable to wear any form of respirator, including a power air purifying respirator, the employee shall be given the opportunity to transfer to another position which is available or which later becomes available having a dust level at or below the PEL. The employer shall assure that an employee who is transferred due to an inability to wear a respirator suffers no loss of earnings or other employment rights or benefits as a result of the transfer."
72
Although it cited no specific determination or statement of reasons proffered by the Secretary, the Court of Appeals was persuaded by this argument. 199 U.S.App.D.C., at 93, 617 F.2d, at 675.
73
There is evidence in the record that might support such a determination. Dr. Merchant testified that a medical surveillance program alone would not be sufficient for identifying and relocating employees suffering from byssinosis. App. 440-441. He observed:
"There is reluctance very often among the employee himself to leave his job. I think clearly some guarantees as to wages and opportunities must be an integral part of any recommendation to relocate somebody and it has been the experience in coal mining where miners are allowed, under the Coal Mine Health and Safety Act of 1968, to be transferred, a very low proportion of these men actually exercise their transfer rights." Id., at 441.
However, the courts will not be expected to scrutinize the record to uncover and formulate a rationale explaining an action, when the agency in the first instance has failed to articulate such rationale. See Automotive Parts & Accessories Assn. v. Boyd, 132 U.S.App.D.C. 200, 208, 407 F.2d 330, 338 (1968).
74
In its specific discussion of the transfer/guarantee provision, occupying more than two-thirds of a page in the Federal Register, OSHA argued that "[i]t is manifestly unfair that employees who are unable to wear respirators suffer . . . economic detriment because their employers have not yet achieved compliance with the engineering control requirements of the standard, but are relying instead on the interim and less effective device of respirators." 43 Fed.Reg. 27387, cols. 2 and 3 (1978). The agency then stated its judgment that the "protection [the transfer and guarantee regulation] affords should greatly increase the success of the standard's respiratory protection provisions." Id., at 27387, col. 3. Since the Secretary had already presented an unauthorized reason for the guarantee provision, we decline to accept this "boilerplate" statement as a sufficient determination and statement of reasons within the meaning of the Act. 29 U.S.C. §§ 655(e), (f). See Synthetic Organic Chemical Manufacturers Assn. v. Brennan, 503 F.2d 1155, 1157, 1160 (CA3 1974), cert. denied, 420 U.S. 973, 95 S.Ct. 1396, 43 L.Ed.2d 653 (1975); Industrial Union Dept. v. Hodgson, supra, 162 U.S.App.D.C., at 339-340, 499 F.2d, at 475-476; Associated Industries of New York State, Inc. v. U. S. Dept. of Labor, 487 F.2d 342, 354 (CA2 1973); Dry Color Manufacturers' Assn. v. Department of Labor, 486 F.2d 98, 105-106 (CA3 1973). See also Berger & Riskin, Economic and Technological Feasibility in Regulating Toxic Substances Under the Occupational Safety and Health Act, 7 Ecology L.Q. 285, 298-299 (1978).
75
Even had Justice REHNQUIST correctly characterized the Court's opinion, post, at 544—and there were three possible constructions of the phrase "to the extent feasible"—this would hardly have been grounds for invalidating § 6(b)(5) under the delegation doctrine. After all, this would not be the first time that more than one interpretation of a statute had been argued. See, e. g., Pennhurst State School v. Halderman, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981); Watt v. Alaska, 451 U.S. 259, 101 S.Ct. 1673, 68 L.Ed.2d 80 (1981).
*
Contrary to the suggestion of the Court, ante, at 541, n. 75, I do not argue that the existence of several plausible interpretations of the statute is a ground for invoking the delegation doctrine: I invoke the delegation doctrine because Congress failed to choose among those plausible interpretations.
| 67
|
452 U.S. 576
101 S.Ct. 2524
69 L.Ed.2d 246
UNITED STATES, Petitioner,v.Novia TURKETTE, Jr.
No. 80-808.
Argued April 27, 1981.
Decided June 17, 1981.
Syllabus
Chapter 96 of Title 18 of the United States Code, entitled Racketeer Influenced and Corrupt Organizations (RICO), was added to Title 18 by the Organized Crime Control Act of 1970. Title 18 U.S.C. § 1962(c), which is part of RICO, makes it unlawful "for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt." The term "enterprise" is defined in 18 U.S.C. § 1961(4) as including "any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity." An indictment charged respondent and others with, inter alia, a conspiracy to violate § 1962(c). The indictment described the enterprise in question as a group of individuals associated in fact for the purpose of engaging in certain specified criminal activities. Respondent was convicted in Federal District Court, but the Court of Appeals reversed on the ground that RICO was intended solely to protect legitimate business enterprises from infiltration by racketeers and does not make it criminal to participate in an association which performs only illegal acts and has not infiltrated or attempted to infiltrate a legitimate enterprise.
Held: The term "enterprise" as used in RICO encompasses both legitimate and illegitimate enterprises. Pp. 580-593.
(a) Neither the language nor the structure of RICO limits its application to legitimate enterprises. On its face, the definition of "enterprise" in § 1961(4) appears to include both legitimate and illegitimate enterprises within its scope. The section describes two separate categories of associations that come within the purview of an "enterprise"—the first encompassing organizations such as corporations, partnerships, and other "legal entities," and the second covering "any union or group of individuals associated in fact although not a legal entity." The second category is not a more generalized description of the first, and hence the rule of ejusdem generis cannot be properly applied to hold that the second category should be limited by the specific examples enumerated in the first. Pp. 580-582.
(b) With respect to § 1962(c), an "enterprise" is not a "pattern of racketeering activity" but is an entity separate and apart from the pattern of activity in which it engages. In order to secure a conviction, the Government must prove both the existence of an "enterprise" and the connected "pattern of racketeering activity." Pp. 582-583.
(c) Applying RICO to illegitimate as well as legitimate enterprises does not render any portion of the statute superfluous nor does it create any structural incongruities within the statute's framework. On the contrary, insulating the wholly criminal enterprise from prosecution under RICO is the more incongruous position. Pp. 583-587.
(d) Nothing in RICO's legislative history requires a conclusion that the statute is limited in its application to legitimate enterprises. In view of the purposes of the Organized Crime Control Act of 1970 to eradicate organized crime in the United States, it cannot be said that Congress nevertheless confined the reach of the law to only narrow aspects of organized crime, and, in particular, under RICO, to only the infiltration of legitimate business. Pp. 588-593.
1 Cir., 632 F.2d 896, reversed.
Mark I. Levy, Washington, D. C., for petitioner.
John Wall, Boston, Mass., for respondent.
Justice WHITE delivered the opinion of the Court.
1
Chapter 96 of Title 18 of the United States Code, 18 U.S.C. §§ 1961-1968 (1976 ed. and Supp. III), entitled Racketeer Influenced and Corrupt Organizations (RICO), was added to Title 18 by Title IX of the Organized Crime Control Act of 1970, Pub.L. 91-452, 84 Stat. 941. The question in this case is whether the term "enterprise" as used in RICO encompasses both legitimate and illegitimate enterprises or is limited in application to the former. The Court of Appeals for the First Circuit held that Congress did not intend to include within the definition of "enterprise" those organizations which are exclusively criminal. 632 F.2d 896 (1980). This position is contrary to that adopted by every other Circuit that has addressed the issue.1 We granted certiorari to resolve this conflict. 449 U.S. 1123, 101 S.Ct. 938, 67 L.Ed.2d 109 (1981).
2
* Count Nine of a nine-count indictment charged respondent and 12 others with conspiracy to conduct and participate in the affairs of an enterprise2 engaged in interstate commerce through a pattern of racketeering activities, in violation of 18 U.S.C. § 1962(d).3 The indictment described the enterprise as "a group of individuals associated in fact for the purpose of illegally trafficking in narcotics and other dangerous drugs, committing arsons, utilizing the United States mails to defraud insurance companies, bribing and attempting to bribe local police officers, and corruptly influencing and attempting to corruptly influence the outcome of state court proceedings. . . ." The other eight counts of the indictment charged the commission of various substantive criminal acts by those engaged in and associated with the criminal enterprise, including possession with intent to distribute and distribution of controlled substances, and several counts of insurance fraud by arson and other means. The common thread to all counts was respondent's alleged leadership of this criminal organization through which he orchestrated and participated in the commission of the various crimes delineated in the RICO count or charged in the eight preceding counts.
3
After a 6-week jury trial, in which the evidence focused upon both the professional nature of this organization and the execution of a number of distinct criminal acts, respondent was convicted on all nine counts. He was sentenced to a term of 20 years on the substantive counts, as well as a 2-year special parole term on the drug count. On the RICO conspiracy count he was sentenced to a 20-year concurrent term and fined $20,000.
4
On appeal, respondent argued that RICO was intended solely to protect legitimate business enterprises from infiltration by racketeers and that RICO does not make criminal the participation in an association which performs only illegal acts and which has not infiltrated as attempted to infiltrate a legitimate enterprise. The Court of Appeals agreed. We reverse.
II
5
In determining the scope of a statute, we look first to its language. If the statutory language is unambiguous, in the absence of "a clearly expressed legislative intent to the contrary, that language must ordinarily be regarded as conclusive." Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980). Of course, there is no errorless test for identifying or recognizing "plain" or "unambiguous" language. Also, authoritative administrative constructions should be given the deference to which they are entitled, absurd results are to be avoided and internal inconsistencies in the statute must be dealt with. Trans Alaska Pipeline Rate Cases, 436 U.S. 631, 643, 98 S.Ct. 2053, 2061, 56 L.Ed.2d 591 (1978); Commissioner v. Brown, 380 U.S. 563, 571, 85 S.Ct. 1162, 1166, 14 L.Ed.2d 75 (1965). We nevertheless begin with the language of the statute.
6
Section 1962(c) makes it unlawful "for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt." The term "enterprise" is defined as including "any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity." § 1961(4). There is no restriction upon the associations embraced by the definition: an enterprise includes any union or group of individuals associated in fact. On its face, the definition appears to include both legitimate and illegitimate enterprises within its scope; it no more excludes criminal enterprises than it does legitimate ones. Had Congress not intended to reach criminal associations, it could easily have narrowed the sweep of the definition by inserting a single word, "legitimate." But it did nothing to indicate that an enterprise consisting of a group of individuals was not covered by RICO if the purpose of the enterprise was exclusively criminal.
7
The Court of Appeals, however, clearly departed from and limited the statutory language. It gave several reasons for doing so, none of which is adequate. First, it relied in part on the rule of ejusdem generis an aid to statutory construction problems suggesting that where general words follow a specific enumeration of persons or things, the general words should be limited to persons or things similar to those specifically enumerated. See 2A C. Sands, Sutherland on Statutory Construction § 47.17 (4th ed. 1973). The Court of Appeals ruled that because each of the specific enterprises enumerated in § 1961(4) is a "legitimate" one, the final catchall phrase—"any union or group of individuals associated in fact"—should also be limited to legitimate enterprises. There are at least two flaws in this reasoning. The rule ofejusdem generis is no more than an aid to construction and comes into play only when there is some uncertainty as to the meaning of a particular clause in a statute. Harrison v. PPG Industries, Inc., 446 U.S. 578, 588, 100 S.Ct. 1889, 1895, 64 L.Ed.2d 525 (1980); United States v. Powell, 423 U.S. 87, 91, 96 S.Ct. 316, 319, 46 L.Ed.2d 228 (1975); Gooch v. United States, 297 U.S. 124, 128, 56 S.Ct. 395, 397, 80 L.Ed. 522 (1936). Considering the language and structure of § 1961(4), however, we not only perceive no uncertainty in the meaning to be attributed to the phrase, "any union or group of individuals associated in fact" but we are convinced for another reason that ejusdem generis is wholly inapplicable in this context.
8
Section 1961(4) describes two categories of associations that come within the purview of the "enterprise" definition. The first encompasses organizations such as corporations and partnerships, and other "legal entities." The second covers "any union or group of individuals associated in fact although not a legal entity." The Court of Appeals assumed that the second category was merely a more general description of the first. Having made that assumption, the court concluded that the more generalized description in the second category should be limited by the specific examples enumerated in the first. But that assumption is untenable. Each category describes a separate type of enterprise to be covered by the statute—those that are recognized as legal entities and those that are not. The latter is not a more general description of the former. The second category itself not containing any specific enumeration that is followed by a general description, ejusdem generis has no bearing on the meaning to be attributed to that part of § 1961(4).4
9
A second reason offered by the Court of Appeals in support of its judgment was that giving the definition of "enterprise" its ordinary meaning would create several internal inconsistencies in the Act. With respect to § 1962(c), it was said:
10
"If 'a pattern of racketeering' can itself be an 'enterprise' for purposes of section 1962(c), then the two phrases 'employed by or associated with any enterprise' and 'the conduct of such enterprise's affairs through [a pattern of racketeering activity]' add nothing to the meaning of the section. The words of the statute are coherent and logical only if they are read as applying to legitimate enterprises." 632 F.2d, at 899.
11
This conclusion is based on a faulty premise. That a wholly criminal enterprise comes within the ambit of the statute does not mean that a "pattern of racketeering activity" is an "enterprise." In order to secure a conviction under RICO, the Government must prove both the existence of an "enterprise" and the connected "pattern of racketeering activity." The enterprise is an entity, for present purposes a group of persons associated together for a common purpose of engaging in a course of conduct. The pattern of racketeering activity is, on the other hand, a series of criminal acts as defined by the statute. 18 U.S.C. § 1961(1) (1976 ed., Supp. III). The former is proved by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit. The latter is proved by evidence of the requisite number of acts of racketeering committed by the participants in the enterprise. While the proof used to establish these separate elements may in particular cases coalesce, proof of one does not necessarily establish the other. The "enterprise" is not the "pattern of racketeering activity"; it is an entity separate and apart from the pattern of activity in which it engages. The existence of an enterprise at all times remains a separate element which must be proved by the Government.5
12
Apart from § 1962(c)'s proscription against participating in an enterprise through a pattern of racketeering activities, RICO also proscribes the investment of income derived from racketeering activity in an enterprise engaged in or which affects interstate commerce as well as the acquisition of an interest in or control of any such enterprise through a pattern of racketeering activity. 18 U.S.C. §§ 1962(a) and (b).6 The Court of Appeals concluded that these provisions of RICO should be interpreted so as to apply only to legitimate enterprises. If these two sections are so limited, the Court of Appeals held that the proscription in § 1962(c), at issue here, must be similarly limited. Again, we do not accept the premise from which the Court of Appeals derived its conclusion. It is obvious that § 1962(a) and (b) address the infiltration by organized crime of legitimate businesses, but we cannot agree that these sections were not also aimed at preventing racketeers from investing or reinvesting in wholly illegal enterprises and from acquiring through a pattern of racketeering activity wholly illegitimate enterprises such as an illegal gambling business or a loan-sharking operation. There is no inconsistency or anomaly in recognizing that § 1962 applies to both legitimate and illegitimate enterprises. Certainly the language of the statute does not warrant the Court of Appeals' conclusion to the contrary.
13
Similarly, the Court of Appeals noted that various civil remedies were provided by § 1964,7 including divestiture, dissolution, reorganization, restrictions on future activities by violators of RICO, and treble damages. These remedies it thought would have utility only with respect to legitimate enterprises. As a general proposition, however, the civil remedies could be useful in eradicating organized crime from the social fabric, whether the enterprise be ostensibly legitimate or admittedly criminal. The aim is to divest the association of the fruits of its ill-gotten gains. See infra, at 591-593. Even if one or more of the civil remedies might be inapplicable to a particular illegitimate enterprise, this fact would not serve to limit the enterprise concept. Congress has provided civil remedies for use when the circumstances so warrant. It is untenable to argue that their existence limits the scope of the criminal provisions.8
14
Finally, it is urged that the interpretation of RICO to include both legitimate and illegitimate enterprises will substantially alter the balance between federal and state enforcement of criminal law. This is particularly true, so the argument goes, since included within the definition of racketeering activity are a significant number of acts made criminal under state law. 18 U.S.C. § 1961(1) (1976 ed., Supp. III). But even assuming that the more inclusive definition of enterprise will have the effect suggested,9 the language of the statute and its legislative history indicate that Congress was well aware that it was entering a new domain of federal involvement through the enactment of this measure. Indeed, the very purpose of the Organized Crime Control Act of 1970 was to enable the Federal Government to address a large and seemingly neglected problem. The view was that existing law, state and federal, was not adequate to address the problem, which was of national dimensions. That Congress included within the definition of racketeering activities a number of state crimes strongly indicates that RICO criminalized conduct that was also criminal under state law, at least when the requisite elements of a RICO offense are present. As the hearings and legislative debates reveal, Congress was well aware of the fear that RICO would mov[e] large substantive areas formerly totally within the police power of the State into the Federal realm." 116 Cong.Rec. 35217 (1970) (remarks of Rep. Eckhardt). See also id., at 35205 (remarks of Rep. Mikva); id., at 35213 (comments of the American Civil Liberties Union); Hearings on Organized Crime Control before Subcommittee No. 5 of the House Committee on the Judiciary, 91st Cong., 2d Sess., 329, 370 (1970) (statement of Sheldon H. Eisen on behalf of the Association of the Bar of the City of New York). In the face of these objections, Congress nonetheless proceeded to enact the measure, knowing that it would alter somewhat the role of the Federal Government in the war against organized crime and that the alteration would entail prosecutions involving acts of racketeering that are also crimes under state law. There is no argument that Congress acted beyond its power in so doing. That being the case, the courts are without authority to restrict the application of the statute. See United States v. Culbert, 435 U.S. 371, 379-380, 98 S.Ct. 1112, 1116-1117, 55 L.Ed.2d 349 (1978).
15
Contrary to the judgment below, neither the language nor structure of RICO limits its application to legitimate "enterprises." Applying it also to criminal organizations does not render any portion of the statute superfluous nor does it create any structural incongruities within the framework of the Act. The result is neither absurd nor surprising. On the contrary, insulating the wholly criminal enterprise from prosecution under RICO is the more incongruous position.
16
Section 904(a) of RICO, 84 Stat. 947, directs that "[t]he provisions of this Title shall be liberally construed to effectuate its remedial purposes." With or without this admonition, we could not agree with the Court of Appeals that illegitimate enterprises should be excluded from coverage. We are also quite sure that nothing in the legislative history of RICO requires a contrary conclusion.10
III
17
The statement of findings that prefaces the Organized Crime Control Act of 1970 reveals the pervasiveness of the problem that Congress was addressing by this enactment:
18
"The Congress finds that (1) organized crime in the United States is a highly sophisticated, diversified, and widespread activity that annually drains billions of dollars from America's economy by unlawful conduct and the illegal use of force, fraud, and corruption; (2) organized crime derives a major portion of its power through money obtained from such illegal endeavors as syndicated gambling, loan sharking, the theft and fencing of property, the importation and distribution of narcotics and other dangerous drugs, and other forms of social exploitation; (3) this money and power are increasingly used to infiltrate and corrupt legitimate business and labor unions and to subvert and corrupt our democratic processes; (4) organized crime activities in the United States weaken the stability of the Nation's economic system, harm innocent investors and competing organizations, interfere with free competition, seriously burden interstate and foreign commerce, threaten the domestic security, and undermine the general welfare of the Nation and its citizens; and (5) organized crime continues to grow because of defects in the evidence-gathering process of the law inhibiting the development of the legally admissible evidence necessary to bring criminal and other sanctions or remedies to bear on the unlawful activities of those engaged in organized crime and because the sanctions and remedies available to the Government are unnecessarily limited in scope and impact." 84 Stat. 922-923.
19
In light of the above findings, it was the declared purpose of Congress "to seek the eradication of organized crime in the United States by strengthening the legal tools in the evidence-gathering process, by establishing new penal prohibitions, and by providing enhanced sanctions and new remedies to deal with the unlawful activities of those engaged in organized crime." Id., at 923.11 The various Titles of the Act provide the tools through which this goal is to be accomplished. Only three of those Titles create substantive offenses, Title VIII, which is directed at illegal gambling operations, Title IX, at issue here, and Title XI, which addresses the importation, distribution, and storage of explosive materials. The other Titles provide various procedural and remedial devices to aid in the prosecution and incarceration of persons involved in organized crime.
20
Considering this statement of the Act's broad purposes, the construction of RICO suggested by respondent and the court below is unacceptable. Whole areas of organized criminal activity would be placed beyond the substantive reach of the enactment. For example, associations of persons engaged solely in "loan sharking, the theft and fencing of property, the importation and distribution of narcotics and other dangerous drugs," id., at 922-923, would be immune from prosecution under RICO so long as the association did not deviate from the criminal path. Yet these are among the very crimes that Congress specifically found to be typical of the crimes committed by persons involved in organized crime, see 18 U.S.C. § 1961(1) (1976 ed., Supp. III), and as a major source of revenue and power for such organizations. See Hearings on S. 30 et al. before the Subcommittee on Criminal Laws and Procedures of the Senate Committee on the Judiciary, 91st Cong., 1st Sess., 1-2 (1969).12 Along these same lines, Senator McClellan, the principal sponsor of the bill, gave two examples of types of problems RICO was designed to address. Neither is consistent with the view that substantive offenses under RICO would be limited to legitimate enterprises: "Organized criminals, too, have flooded the market with cheap reproductions of hit records and affixed counterfeit popular labels. They are heavily engaged in the illicit prescription drug industry." 116 Cong.Rec. 592 (1970). In view of the purposes and goals of the Act, as well as the language of the statute, we are unpersuaded that Congress nevertheless confined the reach of the law to only narrow aspects of organized crime, and, in particular, under RICO, only the infiltration of legitimate business.
21
This is not to gainsay that the legislative history forcefully supports the view that the major purpose of Title IX is to address the infiltration of legitimate business by organized crime. The point is made time and again during the debates and in the hearings before the House and Senate.13 But none of these statements requires the negative inference that Title IX did not reach the activities of enterprises organized and existing for criminal purposes. See United States v. Naftalin, 441 U.S. 768, 774-775, 99 S.Ct. 2077, 2082, 60 L.Ed.2d 624 (1979); United States v. Culbert, 435 U.S., at 377, 98 S.Ct., at 1115.
22
On the contrary, these statements are in full accord with the proposition that RICO is equally applicable to a criminal enterprise that has no legitimate dimension or has yet to acquire one. Accepting that the primary purpose of RICO is to cope with the infiltration of legitimate businesses, applying the statute in accordance with its terms, so as to reach criminal enterprises, would seek to deal with the problem at its very source. Supporters of the bill recognized that organized crime uses its primary sources of revenue and power—illegal gambling, loan sharking and illicit drug distribution—as a springboard into the sphere of legitimate enterprise. Hearings on S. 30, supra, at 1-2. The Senate Report stated:
23
"What is needed here, the committee believes, are new approaches that will deal not only with individuals, but also with the economic base through which those individuals constitute such a serious threat to the economic well-being of the Nation. In short, an attack must be made on their source of economic power itself, and the attack must take place on all available fronts." S.Rep. No. 91-617, p. 79 (1969) (emphasis supplied).
24
Senator Byrd explained in debate on the floor, that "loan sharking paves the way for organized criminals to gain access to and eventually take over the control of thousands of legitimate businesses." 116 Cong.Rec. 606 (1970). Senator Hruska declared that "the combination of criminal and civil penalties in this title offers an extraordinary potential for striking a mortal blow against the property interests of organized crime." Id., at 602.14 Undoubtedly, the infiltration of legitimate businesses was of great concern, but the means provided to prevent that infiltration plainly included striking at the source of the problem. As Representative Poff, a manager of the bill in the House, stated: "[T]itle IX . . . will deal not only with individuals, but also with the economic base through which those individuals constitute such a serious threat to the economic well-being of the Nation. In short, an attack must be made on their source of economic power itself . . . ." Id., at 35193.
25
As a measure to deal with the infiltration of legitimate businesses by organized crime, RICO was both preventive and remedial. Respondent's view would ignore the preventive function of the statute. If Congress had intended the more circumscribed approach espoused by the Court of Appeals, there would have been some positive sign that the law was not to reach organized criminal activities that give rise to the concerns about infiltration. The language of the statute, however—the most reliable evidence of its intent—reveals that Congress opted for a far broader definition of the word "enterprise," and we are unconvinced by anything in the legislative history that this definition should be given less than its full effect.
26
The judgment of the Court of Appeals is accordingly
27
Reversed.
28
Justice STEWART agrees with the reasoning and conclusion of the Court of Appeals as to the meaning of the term "enterprise" in this statute. See 632 F.2d 896. Accordingly, he respectfully dissents.
1
See United States v. Sutton, 642 F.2d 1001, 1006-1009 (CA6 1980) (en banc), cert. pending, Nos. 80-6058, 80-6137, 80-6141, 80-6147, 80-6253, 80-6254, 80-6272; United States v. Errico, 635 F.2d 152, 155 (CA2 1980); United States v. Provenzano, 620 F.2d 985, 992-993 (CA3), cert. denied, 449 U.S. 899, 101 S.Ct. 267, 66 L.Ed.2d 129 (1980); United States v. Whitehead, 618 F.2d 523, 525, n. 1 (CA4 1980); United States v. Aleman, 609 F.2d 298, 304-305 (CA7 1979), cert. denied, 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 780 (1980); United States v. Rone, 598 F.2d 564, 568-569 (CA9 1979), cert. denied, 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 780 (1980); United States v. Swiderski, 193 U.S.App.D.C. 92, 94-95, 593 F.2d 1246, 1248-1249 (1978), cert. denied, 441 U.S. 933, 99 S.Ct. 2055, 60 L.Ed.2d 662 (1979); United States v. Elliott, 571 F.2d 880, 896-898 (CA5), cert. denied, 439 U.S. 953, 99 S.Ct. 349, 58 L.Ed.2d 344 (1978). See also United States v. Anderson, 626 F.2d 1358, 1372 (CA8 1980), cert. denied, 450 U.S. 912, 101 S.Ct. 1351, 67 L.Ed.2d 336 (1981). But see United States v. Sutton, 605 F.2d 260, 264-270 (CA6 1979), vacated, 642 F.2d 1001 (1980); United States v. Rome, supra, at 573 (Ely, J., dissenting); United States v. Altese, 542 F.2d 104, 107 (CA2 1976) (Van Graafeiland, J., dissenting), cert. denied, 429 U.S. 1039, 97 S.Ct. 736, 50 L.Ed.2d 750 (1977).
2
Title 18 U.S.C. § 1961(4) provides:
" 'enterprise' includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity."
3
Title 18 U.S.C. § 1962(d) provides that "[i]t shall be unlawful for any person to conspire to violate any of the provisions of subsections (a), (b), or (c) of this section." Pertinent to these charges, subsection (c) provides:
"It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt."
4
The Court of Appeals' application of ejusdem generis is further flawed by the assumption that "any individual, partnership, corporation, association or other legal entity" could not act totally beyond the pale of the law. The mere fact that a given enterprise is favored with a legal existence does not prevent that enterprise from proceeding along a wholly illegal course of conduct. Therefore, since legitimacy of purpose is not a universal characteristic of the specifically listed enterprises, it would be improper to engraft this characteristic upon the second category of enterprises.
5
The Government takes the position that proof of a pattern of racketeering activity in itself would not be sufficient to establish the existence of an enterprise: "We do not suggest that any two sporadic and isolated offenses by the same actor or actors ipso facto constitute an 'illegitimate' enterprise; rather, the existence of the enterprise as an independent entity must also be shown." Reply Brief for United States 4. But even if that were not the case, the Court of Appeals' position on this point is of little force. Language in a statute is not rendered superfluous merely because in some contexts that language may not be pertinent.
6
Title 18 U.S.C. §§ 1962(a) and (b) provide:
"(a) It shall be unlawful for any person who has received any income derived, directly or indirectly, from a pattern of racketeering activity or through collection of an unlawful debt in which such person has participated as a principal within the meaning of section 2, title 18, United States Code, to use or invest, directly or indirectly, any part of such income, or the proceeds of such income, in acquisition of any interest in, or the establishment or operation of, any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce. A purchase of securities on the open market for purposes of investment, and without the intention of controlling or participating in the control of the issuer, or of assisting another to do so, shall not be unlawful under this subsection if the securities of the issuer held by the purchaser, the members of his immediate family, and his or their accomplices in any pattern or racketeering activity or the collection of an unlawful debt after such purchase do not amount in the aggregate to one percent of the outstanding securities of any one class, and do not confer, either in law or in fact, the power to elect one or more directors of the issuer.
"(b) It shall be unlawful for any person through a pattern of racketeering activity or through collection of an unlawful debt to acquire or maintain, directly or indirectly, any interest in or control of any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce."
7
Title 18 U.S.C. §§ 1964(a) and (c) provide:
"(a) The district courts of the United States shall have jurisdiction to prevent and restrain violations of section 1962 of this chapter by issuing appropriate orders, including, but not limited to: ordering any person to divest himself of any interest, direct or indirect, in any enterprise; imposing reasonable restrictions on the future activities or investments of any person, including, but not limited to, prohibiting any person from engaging in the same type of endeavor as the enterprise engaged in, the activities of which affect interstate or foreign commerce; or ordering dissolution or reorganization of any enterprise, making due provision for the rights of innocent persons.
* * * * *
"(c) Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefore in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney's fee."
8
In discussing these civil remedies, the Senate Report on the Organized Crime Control Act of 1970 specifically referred to two state cases in which equitable relief had been granted against illegitimate enterprises. S.Rep. No. 91-617, p. 79, n. 9, p. 81, n. 11 (1969). These references were in the context of a discussion on the need to expand the remedies available to combat organized crime.
9
RICO imposes no restrictions upon the criminal justice systems of the States. See 84 Stat. 947 ("Nothing in this title shall supersede any provision of Federal, State, or other law imposing criminal penalties or affording civil remedies in addition to those provided for in this title"). Thus, under RICO, the States, remain free to exercise their police powers to the fullest constitutional extent in defining and prosecuting crimes within their respective jurisdictions. That some of those crimes may also constitute predicate acts of racketeering under RICO, is no restriction on the separate administration of criminal justice by the States.
10
We find no occasion to apply the rule of lenity to this statute. "[T]hat 'rule,' as is true of any guide to statutory construction, only serves as an aid for resolving an ambiguity; it is not to be used to beget one. . . . The rule comes into operation at the end of the process of construing what Congress has expressed, not at the beginning as an overriding consideration of being lenient to wrongdoers." Callanan v. United States, 364 U.S. 587, 596, 81 S.Ct. 321, 326, 5 L.Ed.2d 312 (1961) (footnote omitted). There being no ambiguity in the RICO provisions at issue here, the rule of lenity does not come into play. See United States v. Moore, 423 U.S. 122, 145, 96 S.Ct. 335, 346, 46 L.Ed.2d 333 (1975), quoting United States v. Brown, 333 U.S. 18, 25-26, 68 S.Ct. 376, 379-380, 92 L.Ed. 442 (1948) (" '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' "); see also Lewis v. United States, 445 U.S. 55, 60-61, 100 S.Ct. 915, 918-919, 63 L.Ed.2d 198 (1980).
11
See also 116 Cong.Rec. 602 (1970) (remarks of Sen. Yarborough) ("a full scale attack on organized crime"); id., at 819 (remarks of Sen. Scott) ("purpose is to eradicate organized crime in the United States"); id., at 35199 (remarks of Rep. Rodino) ("a truly full-scale commitment to destroy the insidious power of organized crime groups"); id., at 35300 (remarks of Rep. Mayne) (organized crime "must be sternly and irrevocably eradicated").
12
See also id., at 601 (remarks of Sen. Hruska); id., at 606-607 (remarks of Sen. Byrd); id., at 819 (remarks of Sen. Scott); id., at 962 (remarks of Sen. Murphy); id., at 970 (remarks of Sen. Bible); id., at 18913, 18937 (remarks of Sen. McClellan); id., at 35199 (remarks of Rep. Rodino); id., at 35216 (remarks of Rep. McDade); id., at 35300 (remarks of Rep. Mayne); id., at 35312 (remarks of Rep. Brock); id., at 35319 (remarks of Rep. Anderson of California); id., at 35326 (remarks of Rep. Vanik); id., at 35328 (remarks of Rep. Meskill); Hearings on S. 30 et al. before the Subcommittee on Criminal Laws and Procedures of the Senate Committee on the Judiciary, 91st Cong., 1st Sess., 108 (1969) (statement of Attorney General Mitchell); H.R.Rep. No. 1574, 90th Cong., 2d Sess., 5 (1968).
13
116 Cong.Rec. 591 (1970) (remarks of Sen. McClellan) ("title IX is aimed at removing organized crime from our legitimate organizations"); id., at 602 (remarks of Sen. Hruska) ("Title IX of this act is designed to remove the influence of organized crime from legitimate business by attacking its property interests and by removing its members from control of legitimate businesses which have been acquired or operated by unlawful racketeering methods"); id., at 607 (remarks of Sen. Byrd) ("alarming expansion into the field of legitimate business"); id., at 953 (remarks of Sen. Thurmond) ("racketeers . . . gaining inroads into legitimate business"); id., at 845 (remarks of Sen. Kennedy) ("title IX . . . may provide us with new tools to prevent organized crime from taking over legitimate businesses and activities"); S.Rep. No. 91-617, 91st Cong., 1st Sess., p. 76 (1969).
14
See also, e. g., 115 Cong.Rec. 827 (1969) (remarks of Sen. McClellan) ("Organized crime . . . uses its ill-gotten gains . . . to infiltrate and secure control of legitimate business and labor union activities"); 116 Cong.Rec. 591 (1970) (remarks of Sen. McClellan) ("illegally gained revenue also makes it possible for organized crime to infiltrate and pollute legitimate business"); id., at 603 (remarks of Sen. Yarborough) ("[RICO] is designed to root out the influence of organized crime in legitimate business, into which billions of dollars of illegally obtained money is channeled"); id., at 606 (remarks of Sen. Byrd) ("loan sharking paves the way for organized criminals to gain access to and eventually take over the control of thousands of legitimate businesses"); id., at 35193 (remarks of Rep. Poff) ("[T]itle IX . . . will deal not only with individuals, but also with the economic base through which those individuals constitute such a serious threat to the economic well-being of the Nation. In short, an attack must be made on their source of economic power itself . . ."); S.Rep. No. 91-617, supra, at 78-80; H.R.Rep. No. 1574, supra, at 5 ("The President's Crime Commission found that the greatest menace that organized crime presents is its ability through the accumulation of illegal gains to infiltrate into legitimate business and labor unions"); Hearings on Organized Crime Control before Subcommittee No. 5 of the House Committee on the Judiciary, 91st Cong., 2d Sess., 170 (1970) (Department of Justice Comments) ("Title IX is designed to inhibit the infiltration of legitimate business by organized crime, and, like the previous title, to reach the criminal syndicates' major sources of revenue ") (emphasis supplied).
| 01
|
452 U.S. 473
101 S.Ct. 2468
69 L.Ed.2d 171
Robert HOWE, Sr., Petitioner,v.William French SMITH, Attorney General of United States, et al.
No. 80-5392.
Argued April 28, 1981.
Decided June 17, 1981.
Syllabus
Title 18 U.S.C. § 5003(a) authorizes the Attorney General to contract with a state "for the custody, care, subsistence, education, treatment, and training of persons convicted of criminal offenses in the courts of such State," when the Director of the United States Bureau of Prisons certifies that proper and adequate federal "treatment facilities and personnel are available." Petitioner was convicted in a Vermont state court of first-degree murder arising out of the rape and strangulation of an elderly woman. Since Vermont had previously closed its only maximum-security prison, petitioner was assigned to a state prison having the capacity for short-term, but not long-term, incarceration of inmates with high security needs, and it was recommended because of the nature of his offense that he be transferred to a federal prison. A hearing was held before the Vermont Department of Corrections at which it was determined that petitioner was a high security risk, and, ultimately, under a contract between Vermont and the United States, petitioner was transferred to the federal prison system pursuant to § 5003(a). Subsequently, petitioner filed an action in Federal District Court, challenging his transfer on the ground that the federal officials lacked statutory authority to accept custody. He claimed that § 5003(a) requires federal authorities to make an individual determination that each state prisoner transferred to the federal system needs a particular specialized treatment program available in that system, and that no such determination had been made in his case. The District Court denied petitioner's request for relief, and the Court of Appeals affirmed.
Held : Section 5003(a) authorizes a transfer of a state prisoner to the federal system such as occurred in this case. Pp. 2473-2477.
(a) Section 5003(a)'s plain language authorizes contracts not simply for treatment, but also for custody, care, subsistence, education, and training of state prisoners in federal facilities. The requirement for certification by the Director of the Bureau of Prisons is simply a housekeeping measure designed to ensure that the federal system has the capacity to absorb the state prisoners. Nothing in § 5003(a)'s language restricts or limits the use of federal prison facilities to those state prisoners who are in need of some particular treatment. Pp. 480-482.
(b) Section 5003's legislative history reveals that it was enacted to deal with the simple and practical problem of permitting states to transfer their prisoners to federal custody in the same way that the Federal Government had, for some time, been placing prisoners in state custody pursuant to 18 U.S.C. § 4002. And nothing in the legislative history makes this case one of the "rare and exceptional cases" requiring a departure from the statute's plain language. Pp. 483-485.
(c) The contemporaneous and uniform construction of § 5003(a) by the Bureau of Prisons, the agency that proposed its enactment and is charged with its administration, has been that the statute authorizes contracts based on a broad range of purposes, including such a transfer as is shown by the record in this case. In the absence of any evidence of congressional objection, the agency's interpretation must be given great weight. Pp. 485-487.
625 F.2d 454, affirmed.
William A. Nelson, Washington, D. C., for petitioner.
Barbara E. Etkind, Philadelphia, Pa., for the federal respondent.
John J. Easton, Jr., Burlington, Vt., for the state respondent.
Chief Justice BURGER delivered the opinion of the Court.
1
The question presented by this case is whether a State may transfer a prisoner to federal custody pursuant to 18 U.S.C. § 50031 in the absence of a prior determination that the prisoner who is being transferred has a need for specialized treatment available in the federal prison system.
2
* In December 1974, the Commissioner of Corrections for the State of Vermont announced that he would soon close the 187-year-old Windsor prison, the State's only maximum-security facility, because Windsor had become inadequate in several respects. Rebideau v. Stoneman, 398 F.Supp. 805, 808, n. 7 (Vt.1975). In anticipation of that closing, the United States and Vermont entered into an agreement pursuant to 18 U.S.C. § 5003(a) by which the United States agreed to house in federal prisons up to 40 prisoners originally committed to the prisons of Vermont.2 The contract recited that the Director of the United States Bureau of Prisons had certified that facilities were available at federal institutions to accommodate 40 Vermont prisoners.
3
In 1975, when Windsor was finally closed, Vermont was left with several minimum-security community correctional centers and the Vermont Correction and Diagnostic Treatment Facility at St. Albans, Vt. St. Albans has the capacity for short-term incarceration of inmates with high security needs, but it is not designed for long-term incarceration of inmates classified as high security risks.
II
4
The petitioner, Robert Howe, was convicted in a Vermont court of first-degree murder arising out of the rape and strangulation of an elderly female neighbor. He was sentenced to life imprisonment and assigned to the St. Albans facility to begin serving his sentence. Because of the nature of his offense and the length of his term, however, the Classification Committee of the Vermont Department of Corrections determined that he should be kept in a maximum-security facility and recommended that he be transferred to a federal prison. Accordingly, the Vermont Department of Corrections held a hearing to decide whether he should be transferred to a federal institution. Howe was afforded advance notice of the hearing and of the reasons for the proposed transfer; he was present at the hearing; and he was represented by a law advisor from the facility's staff, who submitted various items of evidence in opposition to the proposed transfer.
5
The hearing officer recommended that the petitioner be transferred to a federal institution on the ground that "no treatment programs exist in the State of Vermont, which could provide both treatment and long term maximum security supervision" for him. App. 25. The hearing officer found that Howe was dangerous and could not be integrated into a community-based program. The State relied on a psychiatric report describing Howe as a " 'dangerous person who could well repeat the same pattern of assaultive behavior toward women at any time in the future.' " Id., at 26. The hearing officer also found that Howe would be "highly resistant to treatment" and that he was an escape risk. Indeed, Howe had escaped from the maximum-security wing of St. Albans while detained there prior to his trial.
6
On March 9, 1977, Vermont's Acting Commissioner of Corrections approved Howe's transfer to the federal prison system. Under the terms of the contract between the United States and Vermont, he was incarcerated initially in the federal penitentiary at Atlanta, Ga., and later was transferred to the federal penitentiary at Terre Haute, Ind.
7
As an inmate in the federal maximum-security penitentiaries, Howe enjoyed the same complete freedom of movement within the institution as other prisoners. By contrast, at St. Albans, he had not been given this freedom of movement, but had been generally confined to the maximum-security wing. The programs at St. Albans were substantially the same as those at the federal prisons, although Howe had less opportunity to take advantage of them because of the restrictions on his mobility at the state facility. The only two programs in which he actually participated at St. Albans were psychiatric counseling and educational courses. At Terre Haute, he ran a sewing machine until he had a heart attack. His principal activities now are knitting and crocheting.
8
On December 5, 1978, the petitioner filed this civil action in the United States District Court for the District of Vermont, naming as defendants the Attorney General of the United States and the Director of the Federal Bureau of Prisons. Respondent William Ciuros, Vermont's Commissioner of Corrections, intervened. Relying on Lono v. Fenton, 581 F.2d 645 (CA7 1978) (en banc), the petitioner challenged his transfer to the federal prison system on the ground that the federal officials lacked statutory authority to accept custody. It was the petitioner's position that the sole statutory authority for transfers of state inmates, § 5003, requires federal authorities to make an individual determination that each state prisoner so transferred needs a particular specialized treatment program available in the federal prison system. The petitioner argued that no such individual determination had been made in his case, and that the transfer had not been effected for special treatment needs but for general penological reasons, that is, maximum-security incarceration.
9
Following a hearing, the District Court denied the petitioner's request for relief, holding:
10
"[T]he [A]ct plainly and unambiguously requires no showing of specialized treatment needs or facilities before a Vermont state prisoner may be transferred to the federal prison system in accordance with the contract under which [the petitioner] was so transferred. . . . 18 U.S.C. 5003(a) requires nothing more of the Director of the Bureau of Prisons than a certification that facilities exist within the federal system in which state prisoners may be accommodated. That requirement has been met in the case at hand." 480 F.Supp. 111, 115 (1978).
11
The Court of Appeals for the Second Circuit affirmed. 625 F.2d 454 (1980). The court observed that 18 U.S.C. § 5003 authorizes states to contract not simply for "treatment" but for the "custody, care, subsistence, education, treatment, and training of persons convicted." It reasoned that nothing in the language of the statute gives "treatment" primacy or provides a basis for concluding that, whatever other services are provided, "treatment" must always be furnished to prisoners transferred under the statute. While acknowledging that there was a modicum of support in the legislative history for the petitioner's argument, the Court of Appeals rejected it because it "has no basis in the language of the statute." 625 F.2d, at 457.
12
We granted certiorari to resolve the conflict in the Circuits. Sub nom., Howe v. Civiletti, 449 U.S. 1123, 101 S.Ct. 938, 67 L.Ed.2d 109 (1981).
III
13
The challenge here is not to the action of the State of Vermont in seeking to transfer the petitioner, but to the authority of the Federal Government, in the official person of the Attorney General, to receive and to hold him in a federal penitentiary. Under 18 U.S.C. § 4001(a) "no citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress."3 The petitioner avers that he is being held by the federal authorities illegally because neither § 5003 nor any other provision authorizes his detention. In particular, he argues that § 5003 has a narrow and limited thrust, that is, that a state prisoner may not be transferred to a federal institution except for an identified specialized treatment and that, before any such transfer may be made, the Federal Government must conduct an inquiry and make an individualized determination that the transferee needs, and the federal facility can provide, that treatment.4 On the other hand, the respondents contend that § 5003 is not so limited, and that the petitioner's detention is clearly authorized by the plain language of that provision.
14
Because § 5003 obviously authorizes federal detention of state prisoners under some circumstances, our task is to determine the precise nature of those circumstances and whether appropriate circumstances are present in this case.
A.
15
As in every case involving the interpretation of a statute, analysis must begin with the language employed by Congress. Rubin v. United States, 449 U.S. 424, 430, 101 S.Ct. 698, 702, 66 L.Ed.2d 633 (1981); Reiter v. Sonotone Corp., 442 U.S. 330, 337, 99 S.Ct. 2326, 2330, 60 L.Ed.2d 931 (1979). By its terms, § 5003(a) authorizes the Attorney General to contract with a state or territory "for the custody, care, subsistence, education, treatment, and training of persons convicted of criminal offenses in the courts of [that] State or Territory." On its face, the authority furnished by this language encompasses much more than a limited authority to provide for the specialized treatment needs of state prisoners. "Treatment" is, after all, only one of several services cataloged; the focus of the statute is upon care, custody, subsistence, education, and training as well as upon treatment. Nothing in the construction of the provision supports the view that "treatment" is more important than any of the other listed categories, and nothing in the passage can be fairly read as requiring that some kind of "treatment" must be furnished to every state prisoner transferred to a federal facility pursuant to a contract authorized by § 5003(a).
16
The petitioner does not contest the breadth of the charter granted by the language just quoted. Rather, he focuses on the requirement that the Director of the Federal Bureau of Prisons certify the availability of "proper and adequate treatment facilities and personnel." The petitioner reads this requirement as imposing a substantive limitation or restriction on the purposes for which prisoners may be transferred: to wit, a prisoner may be transferred only for treatment.
17
The petitioner's reading of the statute strains the plain meaning of its language. The act of certification by the Director is nothing more than the starting point in the process of contractual negotiation envisioned by § 5003(a). Absent surplus capacity in the federal system, discussions between federal and state authorities regarding the transfer of state prisoners to federal facilities would be pointless. Once the Director certifies that a surplus capacity exists—that is, that there is room for more inmates—the transfer becomes a possibility. The certification clause cannot be read as requiring any more than that federal facilities and personnel must be available to handle whatever prisoners are received.
18
There is no special significance to the fact that the Director certifies the existence of "treatment facilities," as opposed to prison facilities generally.5 First, the term "treatment facilities" is an appropriate general reference to the existing federal prison facilities. It is true, of course, that other terms may be used—and, in fact, are used6—to describe the federal prisons; that, however, does not belie the appropriateness of the term "treatment facilities" as a general reference to the federal penal system.
19
Second, if, as the petitioner advocates, the phrase "treatment facilities" is read as a substantive restriction upon the purposes for which a prisoner may be transferred, § 5003 is rendered internally inconsistent. According to the petitioner, by virtue of § 5003(a), a state prisoner may be transferred to a federal prison only if that facility affords him specialized treatment found to be needed. However, § 5003(c) provides, with certain exceptions not applicable to this case, that all state prisoners in federal custody are subject to the same statutory and regulatory scheme that governs federal prisoners.7 And that statutory and regulatory scheme contains provisions that would undermine § 5003(a) as that section is read by the petitioner. For example, by statute, federal prisoners may be transferred from one facility to another at the discretion of the Attorney General, 18 U.S.C. § 4082(b), and federal officials have discretion to decide which inmates have access to rehabilitation programs, Moody v. Daggett, 429 U.S. 78, 88, n. 9, 97 S.Ct. 274, 279, n. 9, 50 L.Ed.2d 236 (1976). It makes no sense to interpret § 5003 as forcing federal authorities to accept only a state prisoner who is in need of treatment at a particular facility when those same officials are free to transfer that same prisoner from the facility, thereby denying him access to the treatment program.
20
In sum, the plain language of § 5003(a) authorizes contracts not simply for treatment, but also for the custody, care, subsistence, education, and training of state prisoners in federal facilities. The certification requirement is simply a housekeeping measure designed to ensure that the federal system has the capacity to absorb the state prisoners. Nothing in the language of § 5003(a) restricts or limits the use of federal prison facilities to those state prisoners who are in need of some particular treatment.8
B
21
When the terms of a statute are unambiguous, our inquiry comes to an end, except "in 'rare and exceptional circumstances.' " TVA v. Hill, 437 U.S. 153, 187, n. 33, 98 S.Ct. 2279, 2298, n. 33, 57 L.Ed.2d 117 (1978) (quoting Crooks v. Harrelson, 282 U.S. 55, 60, 51 S.Ct. 49, 50, 75 L.Ed. 156 (1930)). No rare and exceptional circumstances are present here; our reading of the statute is fully supported by the legislative history of § 5003.
22
The petitioner disagrees. He notes that, when asked on the Senate floor to explain § 5003(a), Senator McCarran answered that, whereas 18 U.S.C. § 4002 allows the Federal Government to contract with state officials for the confinement of federal prisoners,
23
"[t]his bill would authorize a more or less reciprocal arrangement whereby, under certain conditions in a limited category of cases . . . the Attorney General may contract with State officials for the custody of persons convicted and sentenced under State laws." 97 Cong.Rec. 13543 (1951).
24
The petitioner finds significance in the Senator's use of the words "under certain conditions" and "in a limited category of cases."
25
Read as a whole, the legislative record reveals that § 5003 was enacted to provide a practical solution to a simple problem, that is, to permit the states to transfer their prisoners to federal custody in the same way that the Federal Government for years had been placing prisoners in state custody pursuant to 18 U.S.C. § 4002. Until this century, there was no federal prison system to speak of; instead, federal prisoners were housed in state prisons. By 1952, however, a sufficient number of federal prisons had been built that Congress could respond to requests from the states that the Federal Bureau of Prisons provide facilities in cases where state facilities were inadequate in some way. Section 5003 was the congressional response to this evolving situation.
26
A desire to help states with insufficient facilities, a sentiment that permeates the legislative history of § 5003, may be detected even in the remarks of Senator McCarran quoted by the petitioner. The Senator described the new section as a "reciprocal" of § 4002, one authorizing the Attorney General to extend to the states the same type of service he was authorized to receive from them under § 4002. Because federal officials exercise broad authority under § 4002, the "reciprocal" authority purportedly extended under § 5003(a) likely was understood by Congress to be equally broad.
27
In addition to Senator McCarran's remarks, the petitioner relies heavily upon a passage in the Report of the House Judiciary Committee on the bill that was to become § 5003. The Committee stated:
28
"The proposed legislation restricts or limits the use of Federal prison facilities to those convicted State offenders who are in need of treatment. The term "treatment" as used in this bill, in addition to its ordinary meaning of providing medical care, is also meant to include corrective and preventive guidance and training as defined in the Youth Corrections Act." H.R.Rep.No.1663, 82d Cong., 2d Sess., 2 (1952), U.S.Code Cong. & Admin.News (1952), pp. 1420, 1421.
29
The petitioner's reliance upon this passage is understandable, but a single sentence—especially one taken from a Report issued five months after one chamber, the Senate, had passed § 5003—cannot obscure the unmistakable intent of Congress to create by § 5003 broad authority in federal officials to accept custody of state prisoners in the federal prisons. Indeed, nowhere is this intent clearer than in another passage from the very same page:
30
"State prisons for many years housed and cared for Federal prisoners—until the Federal Government built its own institutions. Today, by [virtue of § 4002], the Attorney General is authorized to contract for the care and custody of our Federal prisoners. . . . The committee sees no reason why Federal facilities and personnel should not, in turn, be made available for State offenders, provided, of course, the Federal Government is reimbursed for any expenses involved." Ibid.
31
The legislative history of § 5003 reveals that Congress perceived a need to respond to state requests for the federal prison system to undertake "custody, treatment, and training" of state prisoners where the states lacked an institutional capacity to do so themselves. S.Rep.No.978, 82d Cong., 1st Sess., 2 (1951). It is clear that § 5003 was a broad response to this perceived need. Nothing in the legislative history of § 5003 makes this case one of the "rare and exceptional cases" requiring a departure from the plain language of the statute.
C
32
Because the Attorney General, and through him the Bureau of Prisons, are charged with the administration of § 5003, their view of the meaning of the statute is entitled to considerable deference. NLRB v. Bell Aerospace Co., 416 U.S. 267, 274-275, 94 S.Ct. 1757, 1761, 40 L.Ed.2d 134 (1974); Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965). Moreover, in this case, the Bureau's interpretation of the statute merits greater than normal weight because it was the Bureau that drafted the legislation and steered it through Congress with little debate.
33
The contract between the United States and Vermont that served as the basis for the petitioner's transfer to federal custody is just one indication that the Federal Bureau of Prisons has construed § 5003 as broadly authorizing it to accept whatever prisoners are referred to it by state officials. In nearly 30 years of administering this statute, several Attorneys General have interpreted the statute consistently as a grant of plenary authority to contract with the states, limited only by certification that space and personnel were available.
34
Furthermore, Congress has had ample opportunity to express whatever dissatisfaction it might have regarding this administrative interpretation of § 5003. As early as 1952, in its Annual Report, the Bureau of Prisons advised Congress of its view of the statute:
35
"[Section 5003] authorize[s] the Attorney General, when adequate facilities and personnel are available, to contract with State officials for the care and custody of State prisoners. . . .
36
"The confinement of Federal prisoners in State institutions has been authorized since 1776. . . . The present act affords an opportunity for reciprocity which had not hitherto existed. While it is not anticipated that the new statute will be used widely, States may on occasion wish to request Federal care for particular prisoners who need facilities available in the Federal prison system but not in their own. For example, a State may with to transfer a vicious intractable offender who cannot be handled readily in its own institutions, or a female prisoner for whom appropriate facilities are not available, or a prisoner needing special medical or psychiatric care." U.S. Dept. of Justice, Annual Report of the Bureau of Prisons 16-17 (1952) (emphasis added).
37
Congress indicated no reservation or objection to this interpretation of § 5003 in 1952, or in any year thereafter. Furthermore, in 1965, when Congress added § 5003(d) so as to include the Canal Zone within the purview of § 5003, the Senate Report expressly described § 5003(a) as broadly permitting the transfer of persons convicted in the Canal Zone to federal prisons. S.Rep.No. 799, 89th Cong., 1st Sess., 2 (1965), U.S.Code Cong. & Admin.News (1965), p. 3595.
38
The contemporaneous and uniform construction of § 5003(a) by the agency that proposed its enactment and is charged with its enforcement has been that the statute authorizes contracts based upon a broad range of purposes, including the transfer shown by this record. In the absence of any evidence of congressional objection, the agency's interpretation must be given great weight.
IV
39
The plain language, the legislative history, and the longstanding administrative interpretation of § 5003(a) clearly demonstrate that the provision is a broad charter authorizing the transfer of state prisoners to federal custody. There is no basis in § 5003(a) for the petitioner's challenge to his transfer to federal custody. Given our disposition of this issue, it is unnecessary to address the other arguments made by the petitioner.
40
Accordingly, the judgment of the Court of Appeals is
41
Affirmed.
42
Justice STEWART dissents. He would vacate the judgment and remand the case to the District Court with directions to dismiss the complaint. He is of the view that, although the petitioner could have brought a habeas corpus action in the appropriate Federal District Court by virtue of 18 U.S.C. § 4001(a), neither that statute nor any other authorized this independent civil action in the United States District Court for the District of Vermont.
43
Justice STEVENS, concurring in the judgment.
44
As I read 18 U.S.C. § 5003(a), quoted ante, at 475, n. 1, it authorizes the Federal Government to take custody of state prisoners only "under certain conditions in a limited category of cases."1 The history of the legislation indicates that it was intended to authorize the use of federal "treatment facilities," that would not otherwise be available to the States, for the custody and treatment of "those convicted State offenders who are in need of treatment."2 The language of the statute is consistent with this purpose. The requirement of a federal certification "that proper and adequate treatment facilities and personnel are available" surely is inconsistent with the view that nothing more than adequate prison accommodations are necessary to justify the transfer of a state prisoner to the federal system.
45
In this case, however, petitioner presented the State of Vermont with the kind of problem that the federal statute was intended to solve. Petitioner's classification as an especially dangerous offender, together with the closing of Vermont's only maximum-security facility, created a sufficiently unusual situation to cause his transfer to the federal system to fall within the limited category that the statute covers.3 I therefore concur in the Court's judgment, but I do not share its opinion that Congress intended to give the Federal Bureau of Prisons carte blanche to rent out to the States any federal prison accommodations that may be available from time to time.4
1
Title 18 U.S.C. § 5003 provides in pertinent part:
"(a) The Attorney General, when the Director [of the United States Bureau of Prisons] shall certify that proper and adequate treatment facilities and personnel are available, is hereby authorized to contract with the proper officials of a State or Territory for the custody, care, subsistence, education, treatment, and training of persons convicted of criminal offenses in the courts of such State or Territory: Provided, That any such contract shall provide for reimbursing the United States in full for all costs or other expenses involved.
* * * * *
"(c) Unless otherwise specifically provided in the contract, a person committed to the Attorney General hereunder shall be subject to all the provisions of law and regulations applicable to persons committed for violations of laws of the United States not inconsistent with the sentence imposed."
2
The contract between the United States and Vermont provides in pertinent part:
"1. The [United States] will undertake the custody, care and treatment, including the furnishings and subsistence and all necessary medical and hospital services and supplies, of State prisoners committed to the Federal institution. . . .
"2. The State may without prior approval by the [United States] and without individual application to the [United States] transfer up to 40 State prisoners for commitment to a Bureau of Prisons facility." 625 F.2d 454, 455, n. 1 (1980).
3
The federal respondents argue that the petitioner lacked standing to bring this action because he is not a federal prisoner, but merely a prisoner of the State of Vermont temporarily in the custody of the Federal Government. This argument, raised for the first time in this Court, fails to give adequate weight to the plain language of § 4001(a) proscribing detention of any kind by the United States, absent a congressional grant of authority to detain. If the petitioner is correct that neither § 5003 nor any other Act of Congress authorizes his detention by federal authorities, his detention would be illegal even though that detention is on behalf, and at the pleasure, of the State of Vermont.
4
Though the Seventh Circuit, in both Lono v. Fenton, 581 F.2d 645 (1978) (en banc), and Anthony v. Wilkinson, 637 F.2d 1130 (1980), held that absence of suitable state facilities is a precondition for a § 5003 transfer, the petitioner expressly disavows that contention in this Court. Reply Brief for the Petitioner 7. The petitioner argues only that § 5003 requires a finding that the proposed transferee is in need of specialized treatment and that the needed treatment is in fact available in the federal system.
5
The petitioner argues that the concept of "treatment" is limited to such things as medical treatment, psychiatric treatment, alcohol or drug rehabilitation programs, and special programs for juveniles. In his view, the concept does not include secure incarceration for dangerous offenders.
6
The petitioner notes that there are statutes referring to federal prisons as "penal institutions" or "correctional institutions." But those statutes were passed by Congresses other than the Congress that passed § 5003. Moreover, those statutes typically concern the operation or management of prisons as institutional entities rather than processing of prisoners within them. In any event, places of confinement under sentence have long been described in alternative terms.
7
See n. 1, supra.
8
Only one Circuit has adopted the reading of § 5003(a) urged by the petitioner. Lono v. Fenton, 581 F.2d 645 (CA7 1978) (en banc). Each of the other Circuits to consider the meaning of § 5003(a) has rejected the petitioner's interpretation of that provision. Sisbarro v. Warden, 592 F.2d 1 (CA1 1979); Beshaw v. Fenton, 635 F.2d 239 (CA3 1980); United States ex rel. Gereau v. Henderson, 526 F.2d 889 (CA5 1976); Fletcher v. Warden, 641 F.2d 850 (CA10 1981).
1
Those were the words used by the Chairman of the Senate Judiciary Committee in explaining the purpose of the bill that became § 5003. See 97 Cong.Rec. 13543 (1951).
2
That is the language in the Report of the House Judiciary Committee. H.R.Rep.No.1663, 82d Cong., 2d Sess., 2 (1952) (House Report), U.S.Code Cong. & Admin.News 1952, p. 1421. That Report made it clear that the word "treatment" had been purposefully selected as a limitation upon the authority of the Bureau of Prisons to accept state prisoners into federal custody:
"Frequently, State officials request the Bureau of Prisons to undertake the custody, treatment, and training of State prisoners where specialized types of institutions and training programs are indicated but are not available in the States. These requests usually relate to juveniles and drug addicts, concerning whom many of the States are without satisfactory institutions and training programs. The Bureau of Prisons points out that it now has Federal facilities available, including medical and administrative personnel, to accommodate those State offenders that are in need of the various types of treatment that Federal institutions are providing.
* * * * *
"The proposed legislation restricts or limits the use of Federal prison facilities to those convicted State offenders who are in need of treatment. The term 'treatment' as used in this bill, in addition to its ordinary meaning of providing medical care, is also meant to include corrective and preventive guidance and training as defined in the Youth Corrections Act (sec. 5006g, title 18, U.S.C.)." Id., at 1, 2, U.S.Code Cong. & Admin.News 1952, p. 1421.
Attached to the House Report was a letter from the Deputy Attorney General supporting the proposed legislation. The Deputy Attorney General's understanding of the purpose of § 5003 was the same as that of the House Judiciary Committee. See House Report, at 3. The same letter was attached to and quoted in the Senate Report accompanying the bill that became § 5003. See S.Rep.No.978, 82d Cong., 1st Sess., 1-2 (1951).
3
Cf. Anthony v. Wilkinson, 637 F.2d 1130, 1140 (CA7 1980) ("[E]ven something so far removed from traditional notions of 'treatment' as high security incarceration, with the opportunity to participate in attendant religious, educational, recreational and other programs, in particular cases may satisfy § 5003"), cert. pending, No. 80-1315.
4
I essentially agree with the Seventh Circuit's interpretation of the statute:
"It was not intended by Section 5003 to put the federal government in the rent-a-prison business unless there was some special treatment need with which the state required assistance. Absent that special need the states were left to care for their own." Lono v. Fenton, 581 F.2d 645, 648 (1978) (en banc).
In itself this case is not terribly important, but it is another example of the easy way in which the Executive Branch and this Court cooperate in the continuing transfer of governmental responsibilities from the States to the federal sovereign.
| 34
|
452 U.S. 594
101 S.Ct. 2534
69 L.Ed.2d 262
Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor, Appellant,v.Douglas DEWEY et al.
No. 80-901.
Argued April 28, 1981.
Decided June 17, 1981.
Syllabus
Section 103(a) of the Federal Mine Safety and Health Act of 1977 requires federal mine inspectors to inspect underground mines at least four times a year and surface mines at least twice a year to ensure compliance with health and safety standards, and to make followup inspections to determine whether previously discovered violations have been corrected. The section also grants inspectors the right of entry to any coal or other mine and provides that no advance notice of an inspection need be given. If a mine operator refuses to allow a warrantless inspection under § 103(a), the Secretary of Labor is authorized to bring a civil action for injunctive or other relief. When a federal inspector attempted a followup inspection of appellee company's stone quarries, appellee officer of the company refused to allow the inspection to continue. Subsequently, the Secretary of Labor filed suit in Federal District Court seeking to enjoin the company from refusing to permit warrantless searches of its facility. The District Court granted summary judgment for appellees on the ground that the Fourth Amendment prohibited the warrantless searches authorized by § 103(a).
Held: The warrantless inspections required by § 103(a) do not violate the Fourth Amendment but instead are reasonable within the meaning of the Amendment. Pp. 598-606.
(a) Unlike searches of private homes, which generally must be conducted pursuant to a warrant in order to be reasonable under the Fourth Amendment, legislative schemes authorizing warrantless administrative searches of commercial property do not necessarily violate that Amendment. A warrant may not be constitutionally required when Congress has reasonably determined that warrantless searches are necessary to further a regulatory scheme, and the federal regulatory presence is sufficiently comprehensive and defined that the owner of commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes. Pp. 598-602.
(b) Here, in view of the substantial federal interest in improving the health and safety conditions in mines, and of Congress' awareness that the mining industry is among the most hazardous and that this industry's poor health and safety record has significant deleterious effects on interstate commerce, Congress could reasonably determine that a system of warrantless inspections was necessary "if the law is to be properly enforced and inspection made effective." United States v. Biswell, 406 U.S. 311, 316, 92 S.Ct. 1593, 1596, 32 L.Ed.2d 87. Pp. 602-603.
(c) Moreover, the statute's inspection program, in terms of the certainty and regularity of its application, provides a constitutionally adequate substitute for a warrant. Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305, distinguished. Pp. 603-604.
(d) The fact that stone quarries, as opposed to underground mines, do not have a long tradition of Government regulation, does not, in itself, mean that the warrantless inspection in question violated the Fourth Amendment. It is the pervasiveness and regularity of federal regulation that ultimately determines whether a warrant is necessary to render an inspection program reasonable under that Amendment. If the length of regulation were the only criterion, absurd results would occur which the Fourth Amendment's concept of reasonableness would not tolerate. Pp. 604-606.
493 F.Supp. 963, reversed and remanded.
Kenneth S. Geller, Washington, D.C., for appellant.
Francis R. Croak, Milwaukee, Wis., for appellees.
Justice MARSHALL delivered the opinion of the Court.
1
In this case we consider whether § 103(a) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 813(a) (1976 ed., Supp. III), which authorizes warrantless inspections of underground and surface mines, violates the Fourth Amendment. Concluding that searches conducted pursuant to this provision are reasonable within the meaning of the Fourth Amendment, we reverse the judgment of the District Court for the Eastern District of Wisconsin invalidating the statute.
2
* The Federal Mine Safety and Health Act of 1977, 91 Stat. 1290, 30 U.S.C. § 801 et seq. (1976 ed. and Supp. III), requires the Secretary of Labor to develop detailed mandatory health and safety standards to govern the operation of the Nation's mines. 30 U.S.C. § 811 (1976 ed., Supp. III).1 Section 103(a) of the Act, 30 U.S.C. § 813(a) (1976 ed., Supp. III), provides that federal mine inspectors are to inspect underground mines at least four times per year and surface mines at least twice a year to insure compliance with these standards, and to make followup inspections to determine whether previously discovered violations have been corrected. This section also grants mine inspectors "a right of entry to, upon, or through any coal or other mine"2 and states that "no advance notice of an inspection shall be provided to any person." If a mine operator refuses to allow a warrantless inspection conducted pursuant to § 103(a), the Secretary is authorized to institute a civil action to obtain injunctive or other appropriate relief. 30 U.S.C. § 818(a)(1)(C) (1976 ed., Supp. III.)
3
In July 1978, a federal mine inspector attempted to inspect quarries owned by appellee Waukesha Lime and Stone Co. in order to determine whether all 25 safety and health violations uncovered during a prior inspection had been corrected. After the inspector had been on the site for about an hour, Waukesha's president, appellee Douglas Dewey, refused to allow the inspection to continue unless the inspector first obtained a search warrant. The inspector issued a citation to Waukesha for terminating the inspection,3 and the Secretary subsequently filed this civil action in the District Court for the Eastern District of Wisconsin seeking to enjoin appellees from refusing to permit warrantless searches of the Waukesha facility.
4
The District Court granted summary judgment in favor of appellees on the ground that the Fourth Amendment prohibited the warrantless searches of stone quarries authorized by § 103(a) of the Act.4 493 F.Supp. 963 (1980). The Secretaryappealed directly to this Court pursuant to 28 U.S.C. § 1252. Because the District Court's ruling invalidated an important provision of the Mine Safety and Health Act, we noted probable jurisdiction.5 Sub nom. Marshall v. Dewey, 449 U.S. 1122, 101 S.Ct. 937, 67 L.Ed.2d 108 (1981).
II
5
Our prior cases have established that the Fourth Amendment's prohibition against unreasonable searches applies to administrative inspections of private commercial property. Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978); See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967). However, unlike searches of private homes, which generally must be conducted pursuant to a warrant in order to be reasonable under the Fourth Amendment,6 legislative schemes authorizing warrantless administrative searches of commercial property do not necessarily violate the Fourth Amendment. See, e. g., United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972); Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 775, 25 L.Ed.2d 60 (1970). The greater latitude to conduct warrantless inspections of commercial property reflects the fact that the expectation of privacy that the owner of commercial property enjoys in such property differs significantly from the sanctity accorded an individual's home, and that this privacy interest may, in certain circumstances, be adequately protected by regulatory schemes authorizing warrantless inspections. United States v. Biswell, supra, 406 U.S., at 316, 92 S.Ct., at 1596.
6
The interest of the owner of commercial property is not one in being free from any inspections. Congress has broad authority to regulate commercial enterprises engaged in or affecting interstate commerce, and an inspection program may in some cases be a necessary component of federal regulation. Rather, the Fourth Amendment protects the interest of the owner of property in being free from unreasonable intrusions onto his property by agents of the government. Inspections of commercial property may be unreasonable if they are not authorized by law or are unnecessary for the furtherance of federal interests. Colonnade Catering Corp. v. United States, supra, 397 U.S., at 77, 90 S.Ct., at 777. Similarly, warrantless inspections of commercial property may be constitutionally objectionable if their occurrence is so random, infrequent, or unpredictable that the owner, for all practical purposes, has no real expectation that his property will from time to time be inspected by government officials. Marshall v. Barlow's, Inc., supra, at 323, 98 S.Ct., at 1826. "Where Congress has authorized inspection but made no rules governing the procedures that inspectors must follow, the Fourth Amendment and its various restrictive rules apply." Colonnade Corp. v. United States, supra, 397 U.S., at 77, 90 S.Ct., at 777. In such cases, a warrant may be necessary to protect the owner from the "unbridled discretion [of] executive and administrative officers," Marshall v. Barlow's, Inc., supra, 436 U.S., at 323, 98 S.Ct., at 1826, by assuring him that "reasonable legislative or administrative standards for conducting an . . . inspection are satisfied with respect to a particular [establishment]." Camara v. Municipal Court, 387 U.S. 523, 538, 87 S.Ct. 1727, 1735, 18 L.Ed.2d 930 (1967).
7
However, the assurance of regularity provided by a warrant may be unnecessary under certain inspection schemes. Thus, in Colonnade Corp. v. United States, we recognized that because the alcoholic beverage industry had long been "subject to close supervision and inspection," Congress enjoyed "broad power to design such powers of inspection . . . as it deems necessary to meet the evils at hand." 397 U.S., at 76-77, 90 S.Ct., at 776-777. Similarly, in United States v. Biswell, this Court concluded that the Gun Control Act of 1968, 18 U.S.C. § 921 et seq., provided a sufficiently comprehensive and predictable inspection scheme that the warrantless inspections mandated under the statute did not violate the Fourth Amendment. After describing the strong federal interest in conducting unannounced, warrantless inspections, we noted:
8
"It is also plain that inspections for compliance with the Gun Control Act pose only limited threats to the dealer's justifiable expectations of privacy. When a dealer chooses to engage in this pervasively regulated business . . ., he does so with the knowledge that his records, firearms, and ammunition will be subject to effective inspection. . . . The dealer is not left to wonder about the purposes of the inspector or the limits of his task." 406 U.S., at 316, 92 S.Ct., at 1596.
9
These decisions make clear that a warrant may not be constitutionally required when Congress has reasonably determined that warrantless searches are necessary to further a regulatory scheme and the federal regulatory presence is sufficiently comprehensive and defined that the owner of commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes.
10
We re-emphasized this exception to the warrant requirement most recently in Marshall v. Barlow's, Inc. In that case, we held that absent consent a warrant was constitutionally required in order to conduct administrative inspections under § 8(a) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 657(a). That statute imposes health and safety standards on all businesses engaged in or affecting interstate commerce that have employees, 29 U.S.C. § 652(5), and authorizes representatives of the Secretary to conduct inspections to ensure compliance with the Act. 29 U.S.C. § 657(a). However, the Act fails to tailor the scope and frequency of such administrative inspections to the particular health and safety concerns posed by the numerous and varied businesses regulated by the statute. Instead, the Act flatly authorizes administrative inspections of "any factory, plant, establishment, construction site, or other area, workplace, or environment where work is performed by an employee of an employer" and empowers inspectors conducting such searches to investigate "any such place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and to question privately any such employer, owner, operator, agent, or employee." Ibid. Similarly, the Act does not provide any standards to guide inspectors either in their selection of establishments to be searched or in the exercise of their authority to search. The statute instead simply provides that such searches must be performed "at . . . reasonable times, and within reasonable limits and in a reasonable manner." Ibid.
11
In assessing this regulatory scheme, this Court found that the provision authorizing administrative searches "devolves almost unbridled discretion upon executive and administrative officers, particularly those in the field, as to when to search and whom to search." 436 U.S., at 323, 98 S.Ct., at 1826. Accordingly, we concluded that a warrant was constitutionally required to assure a nonconsenting owner, who may have little real expectation that his business will be subject to inspection, that the contemplated search was "authorized by statute, and . . . pursuant to an administrative plan containing specific neutral criteria." Ibid. However, we expressly limited our holding to the inspection provisions of the Occupational Safety and Health Act, noting that the "reasonableness of a warrantless search . . . will depend upon the specific enforcement needs and privacy guarantees of each statute" and that some statutes "apply only to a single industry, where regulations might already be so pervasive that a Colonnade-Biswell exception to the warrant requirement could apply." Id., 436 U.S., at 321, 98 S.Ct., at 1825.
12
Applying this analysis to the case before us, we conclude that the warrantless inspections required by the Mine Safety and Health Act do not offend the Fourth Amendment. As an initial matter, it is undisputed that there is a substantial federal interest in improving the health and safety conditions in the Nation's underground and surface mines. In enacting the statute, Congress was plainly aware that the mining industry is among the most hazardous in the country and that the poor health and safety record of this industry has significant deleterious effects on interstate commerce.7 Nor is it seriously contested that Congress in this case could reasonably determine, as it did with respect to the Gun Control Act in Biswell, that a system of warrantless inspections was necessary "if the law is to be properly enforced and inspection made effective." United States v. Biswell, 406 U.S., at 316, 92 S.Ct., at 1596. In designing an inspection program, Congress expressly recognized that a warrant requirement could significantly frustrate effective enforcement of the Act. Thus, it provided in § 103(a) of the Act that "no advance notice of an inspection shall be provided to any person." In explaining this provision, the Senate Report notes:
13
"[I]n [light] of the notorious ease with which many safety or health hazards may be concealed if advance warning of inspection is obtained, a warrant requirement would seriously undercut this Act's objectives." S.Rep.No.95-181, p. 27 (1977), U.S.Code Cong. & Admin.News 1977, pp. 3401, 3427.
14
We see no reason not to defer to this legislative determination. Here, as in Biswell, Congress could properly conclude: "[I]f inspection is to be effective and serve as a credible deterrent, unannounced, even frequent, inspections are essential. In this context, the prerequisite of a warrant could easily frustrate inspection." 406 U.S., at 316, 92 S.Ct., at 1596.
15
Because a warrant requirement clearly might impede the "specific enforcement needs" of the Act, Marshall v. Barlow's, Inc., 436 U.S., at 321, 98 S.Ct., at 1825, the only real issue before us is whether the statute's inspection program, in terms of the certainty and regularity of its application, provides a constitutionally adequate substitute for a warrant. We believe that it does. Unlike the statute at issue in Barlow's, the Mine Safety and Health Act applies to industrial activity with a notorious history of serious accidents and unhealthful working conditions. The Act is specifically tailored to address those concerns,8 and the regulation of mines it imposes is sufficiently pervasive and defined that the owner of such a facility cannot help but be aware that he "will be subject to effective inspection." United States v. Biswell, supra, 406 U.S., at 316, 92 S.Ct., at 1596. First, the Act requires inspection of all mines and specifically defines the frequency of inspection. Representatives of the Secretary must inspect all surface mines at least twice annually and all underground mines at least four times annually. 30 U.S.C. § 813(a) (1976 ed., Supp. III). Similarly, all mining operations that generate explosive gases must be inspected at irregular 5-, 10-, or 15-day intervals. § 813(i). Moreover, the Secretary must conduct followup inspections of mines where violations of the Act have previously been discovered, § 813(a), and must inspect a mine immediately if notified by a miner or a miner's representative that a violation of the Act or an imminently dangerous condition exists. § 813(g).9 Second, the standards with which a mine operator is required to comply are all specifically set forth in the Act or in Title 30 of the Code of Federal Regulations. Indeed, the Act requires that the Secretary inform mine operators of all standards proposed pursuant to the Act. § 811(e). Thus, rather than leaving the frequency and purpose of inspections to the unchecked discretion of Government officers, the Act establishes a predictable and guided federal regulatory presence. Like the gun dealer in Biswell, the operator of a mine "is not left to wonder about the purposes of the inspector or the limits of his task." 406 U.S., at 316, 92 S.Ct., at 1596.
16
Finally, the Act provides a specific mechanism for accommodating any special privacy concerns that a specific mine operator might have. The Act prohibits forcible entries, and instead requires the Secretary, when refused entry onto a mining facility, to file a civil action in federal court to obtain an injunction against future refusals. 30 U.S.C. § 818(a) (1976 ed., Supp. III). This proceeding provides anadequate forum for the mineowner to show that a specific search is outside the federal regulatory authority, or to seek from the district court an order accommodating any unusual privacy interests that the mineowner might have. See, e. g., Marshall v. Stoudt's Ferry Preparation Co., 602 F.2d 589, 594 (CA 3 1979) (inspectors ordered to keep confidential mine's trade secrets) cert. denied, 444 U.S. 1015, 100 S.Ct. 665, 62 L.Ed.2d 644 (1980).
17
Under these circumstances, it is difficult to see what additional protection a warrant requirement would provide. The Act itself clearly notifies the operator that inspections will be performed on a regular basis. Moreover, the Act and the regulations issued pursuant to it inform the operator of what health and safety standards must be met in order to be in compliance with the statute. The discretion of Government officials to determine what facilities to search and what violations to search for is thus directly curtailed by the regulatory scheme. In addition, the statute itself embodies a means by which any special Fourth Amendment interests can be accommodated. Accordingly, we conclude that the general program of warrantless inspections authorized by § 103(a) of the Act does not violate the Fourth Amendment.
18
Appellees contend, however, that even if § 103(a) is constitutional as applied to most segments of the mining industry, it nonetheless violates the Fourth Amendment as applied to authorize warrantless inspections of stone quarries. Appellees' argument essentially tracks the reasoning of the court below. That court, while expressly acknowledging our decisions in Colonnade and Biswell, found the exception to the warrant requirement defined in those cases to be inapplicable solely because surface quarries, which came under federal regulation in 1966,10 do "not have a long tradition of government regulation." 493 F.Supp., at 964. To be sure, in Colonnade this Court referred to "the long history of the regulation of the liquor industry," 397 U.S., at 75, 90 S.Ct., at 776, and more recently in Marshall v. Barlow's, Inc., 436 U.S., at 313, 98 S.Ct., at 1820, we noted that a "long tradition of close government supervision" militated against imposition of a warrant requirement. However, as previously noted, see supra, at 599, it is the pervasiveness and regularity of the federal regulation that ultimately determines whether a warrant is necessary to render an inspection program reasonable under the Fourth Amendment. Thus in United States v. Biswell, this Court upheld the warrantless search provisions of the Gun Control Act of 1968 despite the fact that "[f]ederal regulation of the interstate traffic in firearms is not as deeply rooted in history as is governmental control of the liquor industry." 406 U.S., at 315, 92 S.Ct., at 1596. Of course, the duration of a particular regulatory scheme will often be an important factor in determining whether it is sufficiently pervasive to make the imposition of a warrant requirement unnecessary. But if the length of regulation were the only criterion, absurd results would occur. Under appellees' view, new or emerging industries, including ones such as the nuclear power industry that pose enormous potential safety and health problems, could never be subject to warrantless searches even under the most carefully structured inspection program simply because of the recent vintage of regulation.
19
The Fourth Amendment's central concept of reasonableness will not tolerate such arbitrary results, and we therefore conclude that warrantless inspection of stone quarries, like similar inspections of other mines covered by the Act, are constitutionally permissible. The judgment of the District Court is reversed, and the case is remanded for further proceedings consistent with this opinion.
20
So ordered.
21
Justice STEVENS, concurring.
22
Like Justice STEWART, I believe the Court erred in Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930, when it overruled Frank v. Maryland, 359 U.S. 360, 79 S.Ct. 804, 3 L.Ed.2d 877. See post, at 609 (dissenting opinion). I also share Justice STEWART's conviction that each of us has a duty to accept the law as it is; disagreement with the holding in a prior case is not a sufficient reason for refusing to honor it.1 Unlike him, however, I also think the Court erred in Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305, when it concluded that Camara required it to invalidate the safety inspection program authorized by Congress in the Occupational Safety and Health Act. As I explained in my dissent in that case, neither the longevity of a regulatory program nor a businessman's implied consent to regulations imposed by the Federal Government determines the reasonableness of a congressional judgment that the public interest in occupational health or safety justifies a program of warrantless inspections of commercial premises. See 436 U.S., at 336-339, 98 S.Ct., 1832-1834 (Stevens, J., dissenting).
23
Justice STEWART has cogently demonstrated that the rationale of today's decision is much closer to the reasoning in my dissent than to the reasoning in the majority opinion in Barlow's, Inc. Nevertheless, I am not persuaded that the holding in Barlow's, Inc., requires the Court to invalidate the program of mine inspections authorized by the statute we construe today.2 I accept the Court's explanation of the differences between the scope of these statutes as sufficient to support a different result in this case. Because I agree with today's majority that the cases are distinguishable, I need not confront the more difficult question whether Camara represented such a fundamental misreading of the Fourth Amendment that it should be overruled. I would merely observe that that option is more viable today than when some of the reasoning that would support it could only be found in dissenting opinions, see 387 U.S., at 546-555, 87 S.Ct., at 1741-1745 (Clark, J., dissenting); 436 U.S., at 325-339, 98 S.Ct., at 1827-1834 (Stevens, J., dissenting), or in the earlier Court opinion in Frank that had itself been overruled in Camara.
24
Justice REHNQUIST, concurring in the judgment.
25
Our prior cases hold that, absent consent or exigent circumstances, the government must obtain a warrant to conduct a search or effect an arrest in a private home. Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981); Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). This case, however, involves the search of commercial property. Though the proprietor of commercial property is protected from unreasonable intrusions by governmental agents, the Court correctly notes that "legislative schemes authorizing warrantless administrative searches of commercial property do not necessarily violate the Fourth Amendment." Ante, at 598.
26
I do not believe, however, that the warrantless entry authorized by Congress in this case, § 103(a) of the Federal Mine Safety and Health Act of 1977, can be justified by the Court's rationale. The Court holds that warrantless searches of stone quarries are permitted because the mining industry has been pervasively regulated. But I have no doubt that had Congress enacted a criminal statute similar to that involved here authorizing, for example, unannounced warrantless searches of property reasonably thought to house unlawful drug activity—the warrantless search would be struck down under our existing Fourth Amendment line of decisions. This Court would invalidate the search despite the fact that Congress has a strong interest in regulating and preventing drug-related crime and has in fact pervasively regulated such crime for a longer period of time than it has regulated mining.
27
I nonetheless concur in the judgment of the Court. As far as I can tell, the stone quarry here was largely visible to the naked eye without entrance onto the company's property. As this Court has held, the "protection accorded by the Fourth Amendment to the people in their 'persons, houses, papers, and effects,' is not extended to the open fields." Hester v. United States, 265 U.S. 57, 59, 44 S.Ct. 445, 446, 68 L.Ed. 898 (1924). I necessarily reserve judgment on the extent to which the Fourth Amendment would prevent the implementation of § 103(a) of the Act in the absence of the particular fact situation presented here.
28
Justice STEWART, dissenting.
29
In Frank v. Maryland, 359 U.S. 360, 79 S.Ct. 804, 3 L.Ed.2d 877, the Court concluded that warrantless administrative inspections are not subject to the restrictions that the Fourth and Fourteenth Amendments place upon conventional searches. The Frank, decision was overruled eight years later in Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930, over the dissent of three Members of the Court, of whom I was one. I believed then that the Frank case had been correctly decided, and that warrantless health and safety inspections do not "requir[e] . . . the safeguards necessary for a search of evidence of criminal acts." Frank, supra, at 372, 79 S.Ct., at 811 (dissenting opinion).1
30
I must, nonetheless, accept the law as it is, and the law is now established that administrative inspections are searches within the meaning of the Fourth Amendment. As such, warrantless administrative inspections of private property without consent, are, like other searches, constitutionally invalid except in a few precisely defined circumstances. Camara, supra, at 528-529, 87 S.Ct., at 1730-1731. This principle was re-emphasized most recently in Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305, a case in which the Court carefully and explicitly defined the scope of the exception to the general rule of Camara: a search warrant is required for administrative inspections except in those businesses with "a long tradition of close government supervision, of which any person who chooses to enter such a business must already be aware." 436 U.S., at 313, 98 S.Ct., at 1820. Because the Court today departs far from this principle, I respectfully dissent.
A.
31
In Camara, the Court announced the general rule that a warrantless inspection of a private dwelling by municipal administrative officers without proper consent is unconstitutional "unless it has been authorized by a valid search warrant." 387 U.S., at 528-529, 87 S.Ct., at 1730-1731. In the companion case, See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943, the Court held that the general rule of Camara applies also to administrative inspections of commercial premises.
32
Until today, exceptions to the general rule have been found in only two cases. In Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60, the Court upheld against constitutional attack a statute that authorized warrantless searches of a liquor licensee's premises by Internal Revenue agents. And in United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87, the Court held that federal Treasury agents could search the premises of a licensed gun dealer to determine whether he was in compliance with the Gun Control Act.
33
In Marshall v. Barlow's, Inc., supra, the Court made clear that Colonnade and Biswell were only limited exceptions to the general rule of Camara, and that they did not signal a trend away from that rule. The Court stated that "unless some recognized exception to the warrant requirement applies," warrants for administrative inspections are mandatory. 436 U.S., at 313, 98 S.Ct., at 1820.
34
The Barlow's Court could not have been more clear in its explanation for and description of the Colonnade-Biswell exception: "The element that distinguishes these enterprises from ordinary businesses is a long tradition of close government supervision, of which any person who chooses to enter such a business must be aware." 436 U.S., at 313, 98 S.Ct., at 1820 (emphasis added). The rationale for the exception was unmistakably that of implied consent. The Court reasoned that " '[t]he businessman [in an industry with a long tradition of close government supervision] in effect consents to the restrictions placed upon him.' "2 (quoting Almeida-Sanchez v. United States, 413 U.S. 266, 271, 93 S.Ct. 2535, 2538, 37 L.Ed.2d 596).
35
Thus, as explained in Barlow's, the Colonnade-Biswell exception is a single and narrow one: the exception applies to businesses that are both pervasively regulated and have a long history of regulation. Today the Court conveniently discards the latter portion of the exception.3 Yet the very rationale for the exception—that the "businessman . . . in effect consents to the restrictions placed upon him"—disappears without it. It can hardly be said that a businessman consents to restrictions on his business when those restrictions are not imposed until after he has entered the business. Yet, because it does not overrule Barlow's, that is precisely what the Court says today to many stone quarry operators.4
36
Under the peculiar logic of today's opinion, the scope of the Fourth Amendment diminishes as the power of governmental regulation increases. Yet I would have supposed that the mandates of the Fourth Amendment demand heightened, not lowered, respect, as the intrusive regulatory authority of government expands.
B
37
Because Barlow's states that the Colonnade-Biswell exception applies only when business is both pervasively regulated and has a long tradition of regulation, it follows that the exception does not apply to stone quarries, and that the Fourth Amendment requires that an inspection that is not consented to can be made only under the authority of a search warrant.5 Although quarries have existed at least since the beginning of the Republic, the District Court properly noted that it was only in 1966, when Congress added them to the scope of the Mine Safety and Health Act, that they became pervasively regulated. 493 F.Supp. 963, 965-966.
38
As I read today's opinion, Congress is left free to avoid the Fourth Amendment industry by industry even though the Court held in Barlow's that Congress could not avoid that Amendment all at once.6 Congress after today can define any industry as dangerous, regulate it substantially, and provide for warrantless inspections of its members. But, because I do not believe that Congress can, by legislative fiat, rob the members of any industry of their constitutional protection, I dissent from the opinion and judgment of the Court.
1
The Act supersedes the Federal Coal Mine Health and Safety Act of 1969, formerly 30 U.S.C. § 801 et seq., and repeals and replaces the Federal Metal and Nonmetallic Mine Safety Act of 1966, formerly 30 U.S.C. § 721 et seq.
2
The Act defines "coal or other mine" to include "an area of land from which minerals are extracted in nonliquid form or, if in liquid form, are extracted with workers underground." 30 U.S.C. § 802(h)(1) (1976 ed., Supp. III). It is undisputed that the quarry operated by appellee company falls within this definition.
3
The Act provides that the Secretary shall issue citations and propose civil penalties for violations of the Act or standards promulgated under the Act. 30 U.S.C. §§ 814(a), 820(a) (1976 ed., Supp. III). The Secretary's regulations call for issuance of a citation and the assessment of a civil penalty for denial of entry. 30 CFR § 100.4 (1980). The Act also allows a mine operator to contest any citation in a hearing before an administrative law judge, whose decision is subject to discretionary review by the Mine Safety and Health Review Commission. 30 U.S.C. §§ 815(d), 823(d) (1976 ed., Supp. III). The operator thereafter is entitled to review of a final administrative ruling in the appropriate court of appeals. 30 U.S.C. § 816 (1976 ed., Supp. III).
In this case, the Administrative Law Judge upheld a $1,000 civil penalty proposed by the Secretary. This decision is currently under review by the Mine Safety and Health Review Commission.
4
Although the District Court limited its holding to the constitutionality of § 103(a) as applied to warrantless inspections of stone quarries, the Act makes no distinction as to the type of mine to be inspected, and our conclusions here apply equally to all warrantless inspections authorized by the Act.
5
Three Courts of Appeals have upheld the warrantless inspection provisions of the Act as they apply to quarry operations similar to appellees' facility. See Marshall v. Texoline Co., 612 F.2d 935 (CA5 1980); Marshall v. Nolichuckey Sand Co., 606 F.2d 693 (CA6 1979), cert. denied, 446 U.S. 908, 100 S.Ct. 1835, 64 L.Ed.2d 261 (1980); Marshall v. Stoudt's Ferry Preparation Co., 602 F.2d 589 (CA3 1979), cert. denied, 444 U.S. 1015, 100 S.Ct. 665, 62 L.Ed.2d 644 (1980).
6
Absent consent or exigent circumstances, a private home may not be entered to conduct a search or effect an arrest without a warrant. Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981); Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948). Of course, these same restrictions pertain when commercial property is searched for contraband or evidence of crime. G. M. Leasing Corp. v. United States, 429 U.S. 338, 352-359, 97 S.Ct. 619, 628-632, 50 L.Ed.2d 530 (1977).
7
In the preamble to the Act, Congress declared:
"[T]here is an urgent need to provide more effective means and measures for improving the working conditions and practices in the Nation's coal or other mines in order to prevent death and serious physical harm, and in order to prevent occupational diseases originating in such mines. . . .
"[T]he existence of unsafe and unhealthful conditions and practices in the Nation's coal or other mines is a serious impediment to the future growth of the coal and other mining industry and cannot be tolerated. . . .
* * * * *
"[T]he disruption of production and the loss of income to operators and miners as a result of coal or other mine accidents or occupationally caused diseases unduly impedes and burdens commerce." 30 U.S.C. §§ 801(c), (d), (f).
These congressional findings were based on extensive evidence showing that the mining industry was among the most hazardous of the Nation's industries. See S.Rep.No.95-181 (1977); H.R.Rep.No.95-312 (1977). Although Congress did not make explicit reference to stone quarries in these findings, stone quarries were deliberately included within the scope of the statute. Since the Mine Safety and Health Act, unlike the Occupational Safety and Health Act, is narrowly and explicitly directed at inherently dangerous industrial activity, the inclusion of stone quarries in the statute is presumptively equivalent to a finding that the stone quarrying industry is inherently dangerous.
8
Cf. H.R.Rep.No.95-312, supra, at 1 (mining operations are "so unique, so complex, and so hazardous as to not fit neatly under the Occupational Safety and Health Act").
9
In contrast, the inspection scheme considered in Barlow's did not require the periodic inspection of businesses covered by the Occupational Safety and Health Act, and instead left the decision to inspect within the broad discretion of agency officials. Thus, when a Government official attempted to inspect the facility in that case, the owner had no indication of "why an inspection of [his] establishment was within the program." 436 U.S., at 323, n.20, 98 S.Ct., at 1826, n.20.
10
Stone quarries were first subjected to federal health and safety inspections under the Federal Metal and Nonmetallic Mine Safety Act of 1966, 30 U.S.C. §§ 723, 724.
1
See Florida Dept. of Health & Rehabilitative Services v. Florida Nursing Home Assn., 450 U.S. 147, 151, 101 S.Ct. 1032, 1034, 67 L.Ed.2d 132 (Stevens, J., concurring).
2
I do not agree with Justice STEWART's view that the doctrine of stare decisis requires that we respect dictum unnecessary to the decision in Barlow's, Inc. Cf. McDaniel v. Sanchez, 452 U.S. 130, 154, 101 S.Ct. 2224, 2238, 68 L.Ed.2d 724 (Stewart, J., dissenting).
1
This is not to say that evidence of criminality seized in the course of a warrantless administrative inspection should not be excluded at a criminal trial.
2
In Barlow's, consent could not be found for inspections of the premises of the myriad businesses regulated by the Occupational Safety and Health Administration. The Court was unmoved by the Government's claims that warrantless inspections were necessary for effective enforcement, and that warrants would impose serious burdens upon the inspection system and the courts. 436 U.S., at 316-320, 98 S.Ct., at 1822-1824. And the Court found similarly unpersuasive the Secretary of Labor's argument that a warrant requirement for OSHA inspections would mean that "as a practical matter, warrantless-search provisions in other regulatory statutes are also constitutionally infirm," id., at 321, 98 S.Ct., at 1825.
3
The Court's recasting of what the Court said in Barlow's is remarkable. After discussing Colonnade and Biswell, it states that those decisions create an exception to the warrant requirement when "Congress has reasonably determined that warrantless searches are necessary to further a regulatory scheme and the federal regulatory presence is sufficiently comprehensive and defined that the owner of commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes." Ante, at 600. It then says that "this" exception to the warrant requirement was re-emphasized in Barlow's. Ante, at 600. It then says that "this" exception to the warrant requirement was re-emphasized in Barlow's. Ante, at 600.
Nothing of the sort was re-emphasized in Barlow's. Rather, the Court re-emphasized that "[t]he element that distinguishes these enterprises from ordinary businesses is a long tradition of close government supervision, of which any person who chooses to enter such a business must . . . be aware." 436 U.S., at 313, 98 S.Ct., at 1820.
The Court today does not, to be sure, rid its reinterpretation of Colonnade and Biswell of all traces of implied consent. It says that under its new test, "the owner . . . cannot help but be aware that his property will be subject to periodic inspections for specific purposes." Ante, at 600. But, as the Court must realize, this purported limitation is meaningless. The Court never explains how operators of stone quarries could possibly be aware that the quarries would be subject to warrantless inspections until Congress told them they would be.
4
The Court of Appeals for the Ninth Circuit correctly rejected the notion that the pervasiveness of regulation alone is enough to vitiate a quarry operator's reasonable expectation of privacy: "It would be far more accurate to state that [the] legislation and regulations . . . 'entered' [the operator's] business activity" than to state that the operator "subject[ed] himself to governmental supervision and regulation." Marshall v. Wait, 628 F.2d 1255, 1259.
5
Warrants are issued ex parte. If a warrant were sought after a mine operator's refusal to permit inspection, the time of execution of the warrant would not have to be made known to the operator. Barlow's, 436 U.S., at 320, 98 S.Ct., at 1824. And when it was anticipated that consent would not be given for a search, a warrant could be issued in accordance with an administrative plan based on specific neutral criteria in advance of the planned inspection. The Court's expressed fear that the obtaining of a warrant would given advance notice to a quarry operator of a forthcoming inspection is thus groundless.
Contrary to the Court's expressed belief today, ante, at 604-605, a warrant would not be an empty gesture, but would assure the quarry operator of the authority for the search and advise him of is scope and objectives. A warrant protects the proprietor's privacy interests of assuring him that a neutral judicial officer has reviewed the decision to inspect and found it "reasonable under the Constitution, . . . authorized by statute, and [made] pursuant to an administrative plan containing specific neutral criteria." Barlow's, 436 U.S., at 323, 98 S.Ct., at 1826. On the other hand, warrantless inspections will allow inspectors "almost unbridled discretion . . . as to when to search and whom to search," ibid., precisely the type of arbitrary government interference with privacy that, it has been held in this context, the Fourth Amendment was designed to prevent. Camara, 387 U.S., at 528, 87 S.Ct., at 1730; See v. City of Seattle, 387 U.S. 541, 545, 87 S.Ct. 1737, 1740, 18 L.Ed.2d 943.
6
Factually, Barlow's and this case are nearly identical. Both cases arose when a business proprietor refused entry to a federal inspector who had come to conduct a warrantless health and safety inspection of business premises. In both cases, warrantless inspections were authorized by statute, § 8(a) of the Occupational Health and Safety Act in Barlow's and § 103(a) of the Federal Mine Safety and Health Act of 1977 in this case. Both statutes were similarly intended to improve health and safety standards in the Nation's workplaces, and their language is unmistakably parallel. Compare 29 U.S.C. § 651 et seq. with 30 U.S.C. § 801 et seq. (1976 ed., Supp. III).
Moreover, Barlow's cannot be distinguished from this case because MSHA relates to a specific industry, whereas the Occupational Safety and Health Act sought to regulate a far broader range of workplaces. MSHA, like the Occupational Safety and Health Act, relates to many different industries with widely disparate characteristics and occupational injury rates. Limestone quarries, sand and gravel operations, surface operations, and various noncoal underground mines are all quite distinct, and cannot be equivalent for constitutional purposes to underground coal mines. The Court today does not so much as mention the voluminous materials submitted by appellees and amici that show this to be true.
| 01
|
452 U.S. 615
101 S.Ct. 2546
69 L.Ed.2d 280
UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF the PLUMBING AND PIPEFITTING INDUSTRY OF the UNITED STATES AND CANADA, AFL-CIO, et al., Petitioners,v.LOCAL 334, UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF the PLUMBING AND PIPEFITTING INDUSTRY OF the UNITED STATES AND CANADA, et al.
No. 80-710.
Argued April 29, 1981.
Decided June 22, 1981.
Syllabus
Held : A suit brought by respondent local union against petitioner parent international union alleging a violation of the international union's constitution arising from the international union's issuance of an order requiring consolidation of certain local unions, including respondent—which suit was instituted in state court but removed to federal court by the international union—falls within the jurisdiction of the federal district courts under § 301(a) of the Labor Management Relations Act, 1947. That section establishes such jurisdiction for "[s]uits for violation of contracts . . . between any . . . labor organizations" representing employees in a covered industry. A union constitution is a "contract between labor organizations" and the unions are "labor organizations" within the plain meaning of § 301(a), and there is no legislative history contrary to such an interpretation. Section 301(a) jurisdiction over disputes between local and parent unions based on the parent's constitution does not depend upon allegations that the dispute potentially could have a significant impact on labor-management relations or industrial peace. Congress could have concluded that the enforcement of the terms of union constitutions—documents that prescribe the legal relationship and the rights and obligations between the parent and affiliated locals—would contribute to the achievement of labor stability. Pp. 619-627.
628 F.2d 812 (3 Cir.), reversed.
Laurence S. Gold, Washington, D. C., for petitioners.
Jonathan G. Axelrod, Washington, D. C., for respondents.
Justice BRENNAN delivered the opinion of the Court.
1
Section 301(a) of the Labor Management Relations Act, 1947 (the Taft-Hartley Act) provides jurisdiction in the federal district courts over "[s]uits 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." 61 Stat. 156, 29 U.S.C. § 185(a) (emphasis added). The question presented in this case is whether a suit brought by a local union against its parent international union, alleging a violation of the international's constitution, falls within § 301(a) jurisdiction of the federal district courts.
2
* Respondent Local 334, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada (Local 334 or respondent), was a labor organization chartered by and affiliated with petitioner United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada (International or United Association), an international labor organization.1 Composed of both plumbers and pipefitters in Morris County, N.J., Local 334 was one of 27 NewJersey locals affiliated with the International prior to 1977. After failing in its attempt to urge the New Jersey locals to agree upon a voluntary consolidation plan, the International proposed its own plan that would consolidate nine northern New Jersey locals, including Local 334, into two locals, one representing plumbers, the other pipefitters.2 Under the plan, the plumber members of Local 334 would be transferred into Plumbers Local 14, and the pipefitters members of Local 334 into Pipefitters Local 274.
3
When the locals declined to agree to the International's plan,3 the International issued an order of consolidation on August 4, 1977, based on the proposed plan pursuant to § 86 of the constitution of the United Association. That section, entitled "Consolidation of Locals," provides:
4
"Whenever, in the judgment of the General President, it is apparent that there is a superfluous number of Local Unions in any locality, and that a consolidation would be for the best interest of the United Association, locally or at large, he shall have the power to order Local Unions to consolidate and to enforce the consolidation of said Local Unions, or said territory in one or more Local Unions, provided such course received the sanction of the General Executive Board." App. 25.
5
After receiving no response to a letter sent to the General Executive Board requesting a stay of the order pending appeal, Local 334 on August 22, 1977, filed suit against the International in the Superior Court of New Jersey seeking to enjoin enforcement of the order of consolidation. Local 334 alleged in its complaint, inter alia, that § 86 did not permit division of the membership of a local into separate work classifications, that the action of United Association did not constitute a consolidation of local unions, and that the general president had abused his discretion. Complaint ¶ 11, id., at 21. Claiming that it would suffer "substantial and irreparable injury to plaintiffs' [sic ] property and property rights as members of Local 334" unless the consolidation was prevented, Complaint ¶ 13, id., at 21, the Local requested equitable relief enjoining United Association to return the Local's charter and seal, directing it to process the Local's internal appeal to the International's General Executive Board, and preventing it from threatening the Local's officers and members with expulsion and loss of membership. Id., at 22.4
6
The International removed the case to the United States District Court for the District of New Jersey, pursuant to 28 U.S.C. § 1441.5 Local 334 filed a motion to remand the case to the state court, which the District Court denied. App. 98-99. Following completion of discovery and cross-motions for summary judgment, the District Court ruled in favor of the International. The court first concluded that it lacked jurisdiction to hear the case because the Local had failed to exhaust internal union remedies. App. to Pet. for Cert. 22a-23a. In the alternative, the court ruled on the merits that there was "ample basis for the [International's] interpretation of the Constitution as well as the application of that interpretation in the Order of Consolidation of August 4, 1977." Id., at 28a.
7
On appeal, the United States Court of Appeals for the Third Circuit, sua sponte, raised the question of federal-court jurisdiction under § 301(a) and requested supplemental briefing on that issue from the parties. 628 F.2d 812, 813 (1980). After canvassing treatment of this issue by other Courts of Appeals, the court held that "[s]uits concerning intra-union matters that do not have a significant impact on labor-management relations or industrial peace are outside the scope of § 301(a)." Id., at 820. Examining Local 334's allegations in its complaint, the court concluded that any alleged potential effect of the order of consolidation on labor-management relations or industrial peace would not pass the "significant impact" test and that the District Court therefore lacked jurisdiction under § 301(a). Ibid. Accordingly, the court vacated the judgment of the District Court and remanded with instructions to remand the case to the state court. Ibid. We granted the International's petition for certiorari, 449 U.S. 1123, 101 S.Ct. 937, 67 L.Ed.2d 108 (1981), to resolve this important question of labor law. We reverse.
II
8
Section 301(a) establishes federal district court jurisdiction for "[s]uits for violation of contracts . . . between any . . . labor organizations [representing employees in an industry affecting commerce as defined in this chapter]." 29 U.S.C. § 185(a). On its face, the statute appears to comprehend the instant dispute. First, United Association's constitution may be fairly characterized as a contract between labor organizations. We have described a union constitution as a "fundamental agreement of association." Coronado Coal Co. v. Mine Workers, 268 U.S. 295, 304, 45 S.Ct. 551, 554, 69 L.Ed. 963 (1925);6 see Carbon Fuel Co. v. Mine Workers, 444 U.S. 212, 217, 100 S.Ct. 410, 414, 62 L.Ed.2d 394 (1979). The Courts of Appeals are unanimous that a union constitution can be a "contract between labor organizations" within the meaning of § 301(a). See, e. g., Alexander v. International Union of Operating Engineers, AFL-CIO, 624 F.2d 1235, 1238 (CA5 1980); Studio Electrical Technicians Local 728 v. International Photographers of the Motion Picture Industries, Local 659, 598 F.2d 551, 553 (CA9 1979); Local Union No. 657 v. Sidell, 552 F.2d 1250, 1252-1256 (CA7), cert. denied, 434 U.S. 862, 98 S.Ct. 190, 54 L.Ed.2d 135 (1977); Trail v. International Brotherhood of Teamsters, 542 F.2d 961, 968 (CA6 1976); National Assn. of Letter Carriers, AFL-CIO v. Sombrotto, 449 F.2d 915, 918 (CA2 1971); Parks v. International Brotherhood of Electrical Workers, 314 F.2d 886, 916-917 (CA4), cert. denied, 372 U.S. 976, 83 S.Ct. 1111, 10 L.Ed.2d 142 (1963).7 Indeed, even the decision of the Court of Appeals for the Third Circuit on review here recognized that a union constitution would be a "contract" within the meaning of § 301(a) as long as the plaintiff made "specific factual allegations of actions which have a significant impact on labor-management relations or industrial peace." 628 F.2d at 820.8 And respondent in its complaint alleged that "[t]he relationship (rights and duties) between Local 334 and the International is governed by the said Constitution." Amended Complaint, First Count ¶ 3, App. 55.
9
We have also noted that the prevailing state-law view is that a union constitution is a contract. Machinists v. Gonzales, 356 U.S. 617, 618-619, 78 S.Ct. 923, 924, 2 L.Ed.2d 1018 (1958) (discussing that aspect of union constitution constituting a contract between members and union). In particular, the view of a union constitution as a contract between parent and local unions was widely held in the States around the time § 301(a) was enacted. See, e. g., Locals 1140 and 1145 v. United Electrical, Radio and Machine Workers of America, 232 Minn. 217, 221-222, 45 N.W.2d 408, 411 (1950); International Union of United Brewery, Flour, Cereal, Soft Drink & Distillery Workers of America, C. I. O. v. Becherer, 4 N.J.Super. 456, 459, 67 A.2d 900, 901, cert. denied, 3 N.J. 374, 70 A.2d 537 (1949); Local Union 13013, District 50, U. M. W. v. Cikra, 86 Ohio App. 41, 49, 90 N.E.2d 154, 158 (1949); Bridgeport Brass Workers Union, Local 320 of the International Union of Mine, Mill and Smelter Workers v. Smith, 15 Conn.Supp. 505, 511-512 (Super.Ct.1948), aff'd, 136 Conn. 654, 74 A.2d 191 (1950); Textile Workers Local 204 v. Federal Labor Union No. 21500, 240 Ala. 239, 243, 198 So. 606, 609 (1940). See also Alexion v. Hollingsworth, 289 N.Y. 91, 96-97, 43 N.E.2d 825, 827 (1942). See generally 87 C.J.S., Trade Unions §§ 42-43, pp. 836-842, 837, n. 39, 838, n. 53 (1954).
10
Second, just as a union constitution is a "contract" within the plain meaning of § 301(a), so too is it clear that United Association and Local 334 are "labor organization[s] representing employees in an industry affecting commerce as defined in this chapter." As defined in the Act, 29 U.S.C. § 152(5), the term "labor organization" means
11
"any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists 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."
12
We have entertained numerous cases brought under § 301(a) where one of the parties was an international union, see, e. g., Automobile Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966), or a local union, see, e. g., Drake Bakeries, Inc. v. Bakery & Confectionery Workers, 370 U.S. 254, 82 S.Ct. 1346, 8 L.Ed.2d 474 (1962). Indeed, in Carbon Fuel Co. v. Mine Workers, we did not even pause to question the existence of § 301(a) jurisdiction in a suit brought by a coal company against an international union, an affiliated district union, and three affiliated local unions. 444 U.S., at 214, 100 S.Ct., at 412.
13
If the plain meaning of the "contracts between labor organizations" clause of § 301(a) supports jurisdiction in the instant case, its legislative history hardly upsets such an interpretation. That is because there is no specific legislative history on that phrase to explain what Congress meant. The provision for suits between labor organizations was inserted late in the bill's history by the House-Senate Conference Committee. H.R.Conf.Rep.No.510, 80th Cong., 1st Sess., 65-66, U.S.Code Cong.Serv.1947, 1135 (1947), 1 NLRB, Legislative History of the Labor Management Relations Act, 1947, pp. 569-570 (hereafter Leg. Hist.); 93 Cong.Rec. 6445 (1947); 2 Leg. Hist., at 1535, 1543; see Retail Clerks v. Lion Dry Goods, Inc., 369 U.S. 17, 26, 82 S.Ct. 541, 547, 7 L.Ed.2d 503 (1962). The Conference Report and postconference debates contain no explanatory remarks about this addition. The only reference to the clause was made in a summary of the Act prepared by Senator Taft and inserted in the Congressional Record, which merely recited: "Section 301 differs from the Senate bill in two respects. Subsection (a) provides that suits for violation of contracts between labor organizations, as well as between a labor organization and an employer, may be brought in the Federal courts." 93 Cong.Rec. 6445 (1947), 2 Leg. Hist., at 1543.
14
Relying primarily on decisions from other Courts of Appeals, the Court of Appeals below was "persuaded by the view that disputes between local and parent unions must involve events which potentially have a significant impact on labor-management relations or industrial peace in order for there to be jurisdiction under § 301(a)." 628 F.2d, at 818. It is no doubt true that the primary purpose of the Taft-Hartley Act was "to promote the achievement of industrial peace through encouragement and refinement of the collective bargaining process." Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 509, 82 S.Ct. 519, 523, 7 L.Ed.2d 483 (1962); see Textile Workers v. Lincoln Mills, 353 U.S. 448, 452-455, 77 S.Ct. 912, 915-17, 1 L.Ed.2d 172 (1957). As the Senate observed, "[s]tatutory recognition of the collective agreement as a valid, binding and enforceable contract . . . will promote a higher degree of responsibility upon the parties to such agreements, and will thereby promote industrial peace." S.Rep.No.105, 80th Cong., 1st Sess., 17 (1947), 1 Leg. Hist., at 423.
15
But apparently Congress was also concerned that unions be made legally accountable for agreements into which they entered among themselves, an objective that itself would further stability among labor organizations. Therefore, § 301(a) provided federal jurisdiction for enforcement of contracts made by labor organizations to counteract jurisdictional defects in many state courts that made it difficult or impossible to bring suits against labor organizations by reason of their status as unincorporated associations. See Charles Dowd Box Co. v. Courtney, supra, 368 U.S., at 510, 82 S.Ct., at 524; 93 Cong.Rec. 5014 (1947) (comments of Sen. Ball, a floor leader of the bill) ("because unions are voluntary associations, the common law in a great many States requires service on every member of the union, which is very difficult");9 S.Rep.No.105, supra, at 15, 1 Leg. Hist., at 421; Comment, Applying the "Contracts Between Labor Organizations" Clause of Taft-Hartley Section 301: A Plea for Restraint, 69 Yale L.J. 299, n. 2 (1959). Surely Congress could conclude that the enforcement of the terms of union constitutions documents that prescribe the legal relationship and the rights and obligations between the parent and affiliated locals—would contribute to the achievement of labor stability. Since union constitutions were probably the most commonplace form of contract between labor organizations when the Taft-Hartley Act was enacted (and probably still are today), and Congress was obviously familiar with their existence and importance, we cannot believe that Congress would have used the unqualified term "contract" without intending to encompass that category of contracts represented by union constitutions. Nothing in the language and legislative history of § 301(a) suggests any special qualification or limitation on its reach, and we decline to interpose one ourselves.10
16
Respondent goes even further than the Court of Appeals view that only disputes with a "significant impact" on labor-management relations should trigger § 301(a) jurisdiction, arguing that § 301(a) should never extend to disputes arising under union constitutions because "[t]he 80th Congress clearly did not intend to intervene in the internal affairs of labor unions." Brief for Respondent 16-17. In support of its position, respondent cites several provisions of the Labor Management Relations Act,11 some general statements in the legislative history,12 and our decision in NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 184, 87 S.Ct. 2001, 2009, 18 L.Ed.2d 1123 (1967), where we observed in connection with § 8(b)(2) of the Act13 that "Congress expressly disclaimed . . . any intention to interfere with union self-government or to regulate a union's internal affairs."14 Respondent's argument falls wide of the mark. There is an obvious and important difference between substantive regulation by the National Labor Relations Board of internal union governance of its membership, and enforcement by the federal courts of freely entered into agreements between separate labor organizations.15 See Parks v. International Brotherhood of Electrical Workers, 314 F.2d, at 915-916. In discussing the section in the Taft-Hartley Act on unfair labor practices with respect to the employer-union relationship, the House-Senate Conference stated: "Once parties have made a collective bargaining contract the enforcement of that contract should be left to the usual processes of the law and not to the National Labor Relations Board." H.R.Conf.Rep.No.510, 80th Cong., 1st Sess., 42 (1947) (emphasis added), U.S.Code Cong.Serv.1947, 1147, 1 Leg. Hist., at 546; see Teamsters v. Lucas Flour Co., 369 U.S. 95, 101, n. 9, 82 S.Ct. 571, 575, n. 9, 7 L.Ed.2d 573 (1962). Similarly, Congress chose in § 301(a) to have contracts between labor organizations enforced by the federal courts.
17
We need not decide today what substantive law is to be applied in § 301(a) cases involving union constitutions. It is enough to observe that the substantive law to apply "is federal law, which the courts must fashion from the policy of our national labor laws." Textile Workers v. Lincoln Mills, 353 U.S., at 456, 77 S.Ct., at 917. Whether the source of that federal law will be state law, id., at 457, 77 S.Ct., at 918, see Automobile Workers v. Hoosier Cardinal Corp., 383 U.S., at 704-705, 86 S.Ct., at 1112-1113, or other principles can be left to another case.16 But it is far too late in the day to deny that Congress intended the federal courts to enjoy wide-ranging authority to enforce labor contracts under § 301. We do not need to say that every contract imaginable between labor organizations is within § 301(a). It is enough to hold, as we do now, that union constitutions are.
18
Reversed.
19
Chief Justice BURGER, dissenting.
20
The Court holds today that union constitutions are "contracts between . . . labor organizations" within the meaning of § 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a). To reach this result, the Court claims to rely on the plain meaning of the statute, uncontradicted by the legislative history. Unlike the Court, I cannot construe these simple English words in such a convoluted fashion. To me, it is abundantly clear that a union constitution is not a contract between labor organizations, and the legislative history confirms that this reading comports with Congress' intent in adopting the Act.
21
I agree with the Court, of course, that a union and its locals are "labor organizations" as defined by § 2(5) of the National Labor Relations Act, 29 U.S.C. § 152(5). I also am willing to accept, at least for purposes of this case, the Court's conclusion that a union constitution is a "contract." But I do not believe it reasonably can be described as a contract between labor organizations. To the extent a union constitution is a contract at all, it is a contract only between the union and its members or among the members themselves; it is not between the national or international union and its constituent locals. Although the degree of autonomy given locals may vary from union to union, they nonetheless are "subordinate bodies." Roomkin, Union Structure, Internal Control, and Strike Activity, 29 Ind. & Lab.Rel.Rev. 198, 199 (1976). "Local unions are mere subdivisions of the national organizations whose constitutions provide for their government as a state does for its counties, cities, towns, and villages." W. Leiserson, American Trade Union Democracy 87 (1959) (emphasis added). Accord, id., at 280; Cook, Dual Government in Unions: A Tool for Analysis, 15 Ind. & Lab.Rel.Rev. 322, 330, 331 (1962). Thus, locals are creatures of the national or international union and, indirectly, of the workers. Obviously, then, union constitutions are not "contracts between . . . labor organizations"; the plain meaning of § 301(a) does not confer jurisdiction over disputes arising out of violations of union constitutions.1
22
As we recently noted in Rubin v. United States, 449 U.S. 424, 430, 101 S.Ct. 698, 701, 66 L.Ed.2d 633 (1981), "[w]hen we find the terms of a statute unambiguous, judicial inquiry is complete," unless unusual circumstances are present. One of those circumstances may be a clear indication in the legislative history that Congress intended some other meaning. Here, however, no such indication is present. The Court recognizes that "there is no specific legislative history on that phrase to explain what Congress meant,"ante, at 623; accordingly, the plain meaning, which does not confer jurisdiction over constitutional disputes, should govern. Indeed Justice BRENNAN, in the opinion for the Court in NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 185-187, 87 S.Ct. 2001, 2009, 2010, 18 L.Ed.2d 1123 (1967), amply demonstrated that the only discussion in the legislative history of regulatinginternal union matters indicates that the principal authors of the Act expressly disclaimed any intention of intervening in such disputes. See also ante, at 625-626.2
23
The Court attempts to explain these passages by saying that Congress, in enacting § 301(a), merely was providing for the "enforcement . . . of freely entered into agreements . . . ." Ante, at 626. This is no answer when the Court also holds that the substantive law applicable " 'is federal law, which the courts must fashion from the policy of our national labor laws.' "Ante, at 627 (quoting Textile Workers v. Lincoln Mills, 353 U.S. 448, 456, 77 S.Ct. 912, 917, 1 L.Ed.2d 172 (1957).) Similarly, remarks in Committee Reports and on the floor regarding the accountability of unions for their agreements were all made in relation to collective-bargaining agreements with employers; there is no reference to a local's invoking the jurisdiction of the federal courts to enforce the provisions of union constitutions. Thus, the legislative history is fully consistent with holding that a union constitution is not a contract between labor organizations as such.
24
It is not irrelevant that, 12 years after the adoption of the Labor Management Relations Act in 1947, Congress expressly chose to engage in regulation of internal union matters by enacting the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 519 (codified at 29 U.S.C. § 401 et seq.).3 The Court has recognized before that the 1959 Act was "the first comprehensive regulation by Congress of the conduct of internal union affairs . . . ." NLRB v. Allis-Chalmers Mfg. Co., supra, 388 U.S., at 193, 87 S.Ct., at 2008 (emphasis added). Moreover, the careful construction and the comprehensiveness of the provisions adopted in 1959 lead to a presumption that Congress deliberately excluded from the regulatory scheme other remedies regarding internal union disputes. See Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 644-645, 101 S.Ct. 2061, 2069, 68 L.Ed.2d 500 (1981); Northwest Airlines, Inc. v. Transport Workers, 451 U.S. 77, 97, 101 S.Ct. 1571, 1583-1584, 67 L.Ed.2d 750 (1981).4
25
When examined in terms of its plain meaning, its legislative history, and the whole fabric of federal labor law, § 301(a) clearly does not confer jurisdiction over disputes under union constitutions. Moreover, the Court's decision today invites resort to the federal courts for cases better resolved outside the federal judiciary. Accordingly, I dissent.
26
Justice STEVENS, with whom Justice REHNQUIST joins, dissenting.
27
Congress has defined the essential elements of the Nation's labor policy by creating certain basic federal rights and providing procedures for their enforcement. To enable the federal courts to carry out that basic policy, the Court in Textile Workers v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 172 construed § 301(a) of the Labor Management Relations Act, 1947, 61 Stat. 156, 29 U.S.C. § 185(a) as a grant of authority to fashion substantive rules of law concerning the making and enforcement of contracts between management and labor. The question this case presents is whether that statute conferred an such lawmaking power on the federal courts in cases arising out of contracts between two labor organizations.
28
In Textile Workers v. Lincoln Mills, supra, the Court was presented with the question whether § 301(a), which "is drafted in terms which appear to be exclusively jurisdictional," Textile Workers Union v. American Thread Co., 113 F.Supp. 137, 139 (Mass.1953), was meant by Congress to be an authorization for "federal courts to fashion a body of federal law for the enforcement of . . . collective bargaining agreements . . .." 353 U.S., at 451, 77 S.Ct., at 915. After examining the legislative history of § 301, the Court concluded that Congress intended to make collective-bargaining agreements between unions and employers binding on both parties and, more importantly, to provide for a "procedure for making such agreements enforceable in the courts by either party." Id., at 453, 77 S.Ct., at 916.1 Because Congress had unambiguously declared its purpose to encourage the collective-bargaining process by making collective-bargaining agreements enforceable by the Judiciary, see id., at 453-456, 77 S.Ct., at 916-17, the Court concluded that the remedy fashioned by the District Court, specific performance of an agreement to arbitrate a dispute over a grievance, was a proper implementation of the national policy that Congress had defined. Thus the Court's holding that a federal court could order specific enforcement of such an agreement created a new rule of law not supported by express statutory authority. Rather it was one example of the "range of judicial inventiveness" implicitly authorized by Congress. Id., at 457, 77 S.Ct., at 918. The Court also concluded that such authorization was not unconstitutional, because "[t]he power of Congress to regulate these labor-management controversies under the Commerce Clause is plain." Ibid.2
29
Two important conclusions may be derived from the Court's opinion in Lincoln Mills. First, underlying the Court's holding was the settled principle that because of the effect of collective-bargaining agreements on industrial peace, the regulation of those agreements is a permissible exercise of Congress' power under the Commerce Clause. Therefore, if § 301 authorized the creation of federal common law, then cases brought pursuant to that section would be cases "arising under" the "laws" of the United States within the meaning of Art. III, § 2, of the Constitution.3 Second, the legislative history of § 301 provided the basis for the Court's conclusion that § 301 was not merely a grant of jurisdiction in cases involving agreements between unions and employers but rather was a congressional authorization for the federal courts to create substantive rules to promote the important federal interests underlying the enforcement of collective-bargaining agreements. Therefore, the federal interest in industrial peace and the authorization to federal courts under § 301 to create rules to enforce collective-bargaining agreements have together resulted in the creation of federal rights for both unions and employers.4
30
Neither of the basic conclusions emerging from Lincoln Mills is applicable to suits on contracts between labor unions. First, there is no indication in the statute that Congress has concluded that disputes over contracts between unions present the threat to industrial peace sufficient to justify Congress' exercise of its power under the Commerce Clause.5 More importantly, even were there such indication, the legislative history of § 301 provides no support for a conclusion that Congress intended the courts to create substantive law to govern contractual disputes between unions. The legislative history of the clause relating to agreements between labor organizations does not contain even the "few shafts of light" which the Court in Lincoln Mills found helpful in construing the clause relating to contracts between employers and unions. As the Court recognizes, at 2550, "there is no specific legislative history on the phrase to explain what Congress meant." The absence of such legislative history dictates the conclusion that Congress intended the clause "or between any such labor organizations" to be a mere grant of jurisdiction over all cases arising out of contracts between unions in which a federal question otherwise exists.6 There is no justification for the conclusion that Congress perceived contracts between unions to involve any federal interest sufficient to warrant the creation of federal rights.
31
As the Court construes the statute, however, it purports to confer authorization on federal courts to create substantive federal common law to govern disputes between two unions over a union constitution. The local union in this case, however, has no federal right to autonomy and the international has no federal right to consolidate its locals. Congress has identified no national policy favoring or disfavoring the consolidation of local unions.7 Unless contracts between unions have some form of federal protection, the statute as the Court construes it is the equivalent of a statute authorizing federal jurisdiction over all litigation between people named Smith, Jones, or Stevens. Some such cases would present federal questions; some would not.8 One union may rent office space to another, lend it money, or manage its credit union. No federal power is implicated by contracts of that kind,9 and no federal rights support the conclusion that courts with the limited jurisdiction described in Art. III of the Constitution may adjudicate issues arising out of such contracts.10
32
The conclusion that suits on contracts between labor unions are not cases "arising under" federal law is further illustrated by the choice of law that district courts would have to make in such cases. The Court states, ante, at 627, that courts must follow the command of Lincoln Mills by fashioning the federal law by looking to the " 'policy of our national labor laws.' " See Lincoln Mills, 353 U.S., at 456, 77 S.Ct., at 917. But in explaining the conclusion that federal interest justified the creation of a body of law to govern the enforceability of collective-bargaining agreements, the Lincoln Mills Court indicated that the broad lawmaking powers would be limited and guided by "the penumbra of express statutory mandates" and "by looking at the policy of the legislation and fashioning a remedy that will effectuate that policy." Id., 353 U.S., at 457, 77 S.Ct., at 918. Five years later, in Teamsters v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 573, the Court indicated that this national policy was best served by the establishment of a uniform body of law applicable to § 301 suits and held that state courts deciding § 301 suits must apply the federal common law.11 In the context presented by this case, however, because the statute does not give a clue as to the federal interest regarding contracts between unions, and because there is thus no federal scheme to follow, district courts will have little choice but to borrow state law.12 Moreover, in the absence of some guideposts planted in federal interests, the ability to obtain—and the need for—uniformity will be greatly reduced. It is difficult to conceive how the Nation's interest in industrial peace will be served by the creation of a body of federal law which will be based on state law and which will in large part vary from State to State.
33
I believe that this case presents no substantive federal question.13 The case does not arise under "the laws of the United States," and the Court of Appeals was quite right in holding that it had no subject-matter jurisdiction.
34
I respectfully dissent.
1
United Association has approximately 550 affiliated local unions and 335,000 members in the United States and Canada. 628 F.2d 812, 813 (CA3 1980).
2
The plan also transferred plumber members of other locals into Plumbers Local 14, and pipefitter members of other locals into Pipefitters Local 274. A third local, representing metal trades employees of the New Jersey Public Service Electric and Gas Co., was also established under the proposed plan. Local 334 members were not involved with this third local.
3
On behalf of United Association, a hearing officer conducted a hearing at which each of the locals affected by the consolidation plan was allowed to present its view of the plan. Following the hearing, the officer recommended adoption of the proposed consolidation plan to United Association's general president.
4
The Local subsequently amended its complaint, alleging in addition that the general president abused his discretion within the meaning of § 86 "by failing to specify facts which would support his conclusion that Local 334 is a 'superfluous' local union insofar as the Morris County, New Jersey area is concerned or that the elimination of Local 334 would be in the best interests of the United Association, locally or at large." Amended Complaint, Second Count ¶ 4, App. 61.
5
Immediately following removal, Local 334 obtained a temporary restraining order against United Association enjoining enforcement of the order of consolidation. Id., at 66-67. The temporary restraining order was subsequently dissolved when the District Court denied the Local's request for a preliminary injunction.
6
In Coronado, one of the issues in the case was whether the International union could be held liable for damages to property caused by a local strike called by an affiliated district organization. The International's constitution provided: "No district shall be permitted to engage in a strike involving all or a major portion of its members, without the sanction of an International Convention or the International Executive Board," and "Districts may order local strikes within their respective districts on their own responsibility, but where local strikes are to be financed by the International Union, they must be sanctioned by the International Executive Board." 268 U.S., at 299-300, 45 S.Ct., at 552. Chief Justice Taft, writing for the Court, observed that "it must be clearly shown in order to impose . . . liability on [the International union] that what was done was done by their agents in accordance with their fundamental agreement of association." Id., at 304, 45 S.Ct., at 554.
7
In Smith v. United Mine Workers of America, 493 F.2d 1241, 1243 (1974) (emphasis added), the Court of Appeals for the Tenth Circuit appeared to suggest that the word "contracts" in § 301 did not encompass union constitutions, although the court also noted that the controversy in that case "relates only to the construction and application of the union constitution and has nothing to do with labor-management relations," thus leaving open the question whether a constitution affecting labor-management relations might be a "contract" in the view of that court.
The Court of Appeals for the First Circuit, without deciding, has given strong indication that a union constitution can be a "contract" within the meaning of § 301(a). In Local Union 1219 v. United Brotherhood of Carpenters and Joiners of America, 493 F.2d 93, 96 (1974), the court noted that a charter given by an international to a local union could be a "contract." The Court of Appeals for the District of Columbia Circuit, in 1199 DC, National Union of Hospital and Health Care Employees v. National Union of Hospital and Health Care Employees, 175 U.S.App.D.C. 70, 72-73, 533 F.2d 1205, 1207-1208 (1976), asserted that it "need not face the issue whether a union constitution is a § 301(a) contract," absent the factual allegation of "actual threats to industrial peace."
8
Even respondent concedes that a union constitution is a contract, albeit one "between members and their union and only secondarily . . . between affiliated bodies of a labor organization." Brief for Respondent 14-15, n. 10.
9
Congress carefully reviewed data compiled on the laws of the States as to the status of labor organizations as legal entities. See, e. g., S.Rep.No.105, 80th Cong., 1st Sess., 15-18 (1947), 1 Leg. Hist., at 421-424; H.R.Rep.No.245, 80th Cong., 1st Sess., 108-109 (1947), 1 Leg. Hist., at 399-400.
10
Respondent notes that, "had Congress intended in 1947 to make the provisions of a union's constitution enforceable in federal court, it could easily have done so explicitly." Brief for Respondent 13, n. 8. We find this a strange suggestion of statutory construction, for Congress specifically left the term "contracts" unqualified and inclusive. We also note that adoption of the "significant impact" test urged by the Court of Appeals would engage the federal courts in the sort of ad hoc judgments on the jurisdictional sufficiency of the pleadings that the unfettered language of § 301(a) belies.
11
Sections 8(a)(3), 8(b)(1)(A), and 8(b)(2) of the Act, 29 U.S.C. §§ 158(a)(3), (b)(1)(A), and (b)(2). For example, § 8(b)(1)(A) states that "this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein."
12
For example, Senator Ball, commenting on the proviso in § 8(b)(1)(A), see n. 11, supra, stated: "It was never the intention of the sponsors of the pending amendment to interfere with the internal affairs or organization of unions." 93 Cong.Rec. 4272 (1947), 2 Leg. Hist., at 1141.
13
Section 8(b)(2) of the Act, 29 U.S.C. § 158(b)(2), states:
"(b) It shall be an unfair labor practice for a labor organization and its agents—
"(2) to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a)(3) of this section or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership; . . ."
14
Respondent also cites the passage 12 years after the Taft-Hartley Act of the Landrum-Griffin Act of 1959, which we have described as "the first comprehensive regulation by Congress of the conduct of internal union affairs," NLRB v. Allis-Chalmers Mfg. Co., 388 U.S., at 193, 87 S.Ct., at 2013, as confirmation that, in the Taft-Hartley Act, Congress did not contemplate that § 301(a) would reach union constitutions.
15
In Allis-Chalmers, the issue was whether § 8(b)(1)(A)'s prohibition of union activity to "restrain or coerce" employees in the exercise of their rights prevented the union from collecting fines from union members who declined to honor an authorized strike. We held that it did not, 388 U.S., at 195, 87 S.Ct., at 2014, and indeed suggested that the Act allowed court enforcement of reasonable fines, id., at 192-193, 87 S.Ct., at 2012-13. Allis-Chalmers thus dealt with substantive regulation by the NLRB of internal union affairs, not with enforcement of pre-existing contracts in the federal courts.
16
We also need not decide whether individual union members may bring suit on a union constitution against a labor organization. See generally Smith v. Evening News Assn., 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962). Compare Abrams v. Carrier Corp., 434 F.2d 1234, 1247 (CA2 1970), cert. denied sub nom. Steelworkers v. Abrams, 401 U.S. 1009, 91 S.Ct. 1253, 28 L.Ed.2d 545 (1971), with Trail v. International Brotherhood of Teamsters, 542 F.2d 961, 968 (CA6 1976).
1
I intimate no view on whether a typical contract between a union and one of its locals—for example, for the sale of office equipment or the lease of property—would give rise to jurisdiction under § 301(a).
2
Although these remarks were made with reference to another provision of the Act, they indicate that congressional silence, if anything, betokens no intent to subject internal union disputes to federal regulation.
3
Of course, it is seldom, if ever, proper to construe a statute on the basis of statements made in subsequent Congresses. Nevertheless, as Justice BRENNAN, writing for the Court in NLRB v. Drivers, 362 U.S. 274, 291, 80 S.Ct. 706, 716, 4 L.Ed.2d 710 (1960) (emphasis added) stated:
"To be sure, what Congress did in 1959 does not establish what it meant in 1947. However, as another major step in an evolving pattern of regulation of union conduct, the 1959 Act is a relevant consideration. Courts may properly take into account the later Act when asked to extend the reach of the earlier Act's vague language . . . ."
Assuming, arguendo, that § 301(a) is vague, the adoption of provisions regulating internal union matters becomes relevant.
4
The Court also relies on state cases that have treated union constitutions as contracts. Ante, at 621-622. How state courts, which have plenary authority to construe and develop the common law of contracts, regard union constitutions has little bearing on the construction of the Labor Management Relations Act.
1
The Court admitted that the legislative history of § 301 is "somewhat cloudy and confusing" but found "a few shafts of light to illuminate our problem." 353 U.S., at 452, 77 S.Ct., at 915. The Court noted that the Conference Committee had dropped a provision which would have made the failure to abide by an agreement to arbitrate an unfair labor practice because "the enforcement of that contract should be left to the usual processes of the law and not to the National Labor Relations Board." H.R.Conf.Rep.No.510, 80th Cong., 1st Sess., 42 (1947); 1 NLRB, Legislative History of the Labor Management Relations Act, 1947, p. 546 (hereinafter Legislative History). Both the Senate Report and the House Report indicated that collective-bargaining agreements should be binding and enforceable in the courts by either party. See 353 U.S., at 453, 77 S.Ct., at 916. Moreover, Congress wanted to promote the inclusion of no-strike clauses in collective-bargaining agreements:
"The chief advantage which an employer can reasonably expect from a collective labor agreement is assurance of uninterrupted operation during the term of the agreement. Without some effective method of assuring freedom from economic warfare for the term of the agreement, there is little reason why an employer would desire to sign such a contract." S.Rep.No.105, 80th Cong., 1st Sess., 16 (1947) (hereinafter 1947 Senate Report), 1 Legislative History, at 422.
Because agreements to arbitrate are the quid pro quo of a no-strike clause, the Court concluded that Congress intended agreements to arbitrate to be enforceable under § 301. 353 U.S., at 455, 77 S.Ct., at 917.
2
The Court cited NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893 for that proposition. In that case, decided in 1937, the Court sustained the constitutionality of the National Labor Relations Act as a valid exercise of Congress' power under the Commerce Clause. The Court stated:
"When industries organize themselves on a national scale, making their relation to interstate commerce the dominant factor in their activities, how can it be maintained that their industrial labor relations constitute a forbidden field into which Congress may not enter when it is necessary to protect interstate commerce from the paralyzing consequences of industrial war? We have often said that interstate commerce itself is a
practical conception. It is equally true that interferences with that commerce must be appraised by a judgment that does not ignore actual experience.
"Experience has abundantly demonstrated that the recognition of the right of employees to self-organization and to have representatives of their own choosing for the purpose of collective bargaining is often an essential condition of industrial peace. Refusal to confer and negotiate has been one of the most prolific causes of strife." Id., at 41-42, 57 S.Ct., at 626.
Thus 20 years later, when Lincoln Mills was decided, it was well settled that labor-management relations had an effect on interstate commerce. Moreover, although the legislative history of the LMRA is "cloudy and confusing" as to the question whether § 301 was substantive or jurisdictional, the legislative history of the statute and of § 301 is particular clearly indicates that the enforcement of collective-bargaining agreements has an effect on industrial peace and therefore on interstate commerce. The primary purpose of the Act was "to promote the achievement of industrial peace through encouragement and refinement of the collective bargaining process." Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 509, 82 S.Ct. 519, 523, 7 L.Ed.2d 483. With respect to the subject matter of § 301 the Senate Report stated:
"[T]o encourage the making of agreements and to promote industrial peace through faithful performance by the parties, collective agreements affecting interstate commerce should be enforceable in the Federal courts.
* * * * *
"Statutory recognition of the collective agreement as a valid, binding, and enforceable contract is a logical and necessary step. It will promote a higher degree of responsibility upon the parties to such agreements, and will thereby promote industrial peace." 1947 Senate Report, at 16-17, 1 Legislative History, at 422-423.
3
The Court did not rely on the view that § 301 had the effect of making a labor union a federal entity comparable to a national bank, with the consequence that a potential federal question concerning its authority might arise in any litigation to which it was a party, thus providing a basis for federal jurisdiction whenever a union was a litigant. See Osborn v. Bank of the United States, 9 Wheat. 738, 6 L.Ed. 204; Lincoln Mills, 353 U.S., at 470-473, 77 S.Ct., at 928-930 (Frankfurter, J., dissenting).
4
"In the 1947 Taft-Hartley Act Congress sought to promote numerous policies. One policy of particular importance—if not the overriding one—was the policy of free collective bargaining. See Teamsters v. Lucas Flour Co., 369 U.S. 95, 104, 82 S.Ct. 571, 577, 7 L.Ed.2d 573 (1962); NLRB v. Insurance Agents, 361 U.S. 477, 488, 80 S.Ct. 419, 426, 4 L.Ed.2d 454 (1960); Textile Workers v. Lincoln Mills, supra, 353 U.S., at 453-454 [77 S.Ct., at 916]." Carbon Fuel Co. v. Mine Workers, 444 U.S. 212, 218, 100 S.Ct. 410, 414, 62 L.Ed.2d 394.
5
Although it need not have looked beyond the legislative history of the Labor Management Relations Act to conclude that regulation of collective-bargaining agreements affect industrial peace, the Lincoln Mills Court cited Jones & Laughlin, supra, a case construing the NLRA, for the proposition. In this case, however, the Court has pointed to no other decisional or statutory authority indicating that all agreements between unions have an effect on industrial peace and thus on interstate commerce.
6
The only reference to the clause in the legislative history, in a summary of the Act prepared by Senator Taft and inserted in the Congressional Record, does not indicate that the clause is anything more than jurisdictional:
"Section 301 differs from the Senate bill in two respects. Subsection (a) provides that suits for violation of contracts between labor organizations, as well as between a labor organization and an employer, may be brought in the Federal courts." 93 Cong.Rec. 6445 (1947), 2 Legislative History, at 1543.
Although this sentence refers also to the clause relating to agreements between a labor organization and an employer—a clause which is more than a grant of jurisdiction—the additional legislative history with respect to such agreements provides some justification for concluding that that portion of § 301 is substantive. No such justification is present, however, with respect to agreements between labor unions.
7
The test adopted by the Court of Appeals in this case required district courts to identify a "significant impact on labor-management relations or industrial peace" prior to exercising jurisdiction under § 301. See 628 F.2d 812, 820. The Court of Appeals found no such impact. In Lincoln Mills the Court not only found a federal interest in the enforcement of collective-bargaining agreements but also specifically found a federal interest in enforcing the clause requiring arbitration at issue there. Because Congress was desirous of promoting agreements not to strike, and because agreements to arbitrate are the quid pro quo for agreements not to strike, the Court could infer a congressional belief that industrial peace could be fostered by the enforcement of such arbitration agreements. See 353 U.S., at 455, 77 S.Ct., at 917.
8
Because § 301 indisputably grants jurisdiction over contract actions between two unions, there is of course no need to give the statute the broad reading given it by the Court in any case in which there is otherwise a federal question and the case thus otherwise arises under federal law.
9
Although the Court states, ante, at 627, that "[w]e do not need to say that every contract imaginable between labor organizations is within § 301(a)," the Court cannot so easily limit its opinion. The Court's opinion permits the creation of federal law in a dispute implicating no federal interest. Absent a limitation restricting § 301(a) jurisdiction on the basis of the presence of a federal interest or right, it will be difficult for district courts to determine what contracts are not encompassed by § 301(a).
10
If the statute is read the way that the Court reads it, its constitutionality is suspect, because the statute purports to give the federal courts jurisdiction over suits which are not "arising under" federal law within the meaning of Art. III, § 2, of the Constitution. Because, however, "an Act of Congress ought not be construed to violate the Constitution if any other possible construction remains available," NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 500, 99 S.Ct. 1313, 1318, 59 L.Ed.2d 533, and because I accordingly interpret the statute to be no more than a grant of jurisdiction, I would not reach the constitutional question.
11
The Court recognized the federal interest in uniformity:
"[T]he subject matter of § 301(a) 'is peculiarly one that calls for uniform law.' Pennsylvania R. Co. v. Public Service Comm'n, 250 U.S. 566, 569 [40 S.Ct. 36, 37, 64 L.Ed. 1142]; see Cloverleaf Butter Co. v. Patterson, 315 U.S. 148, 167-169 [62 S.Ct. 491, 501-03, 86 L.Ed. 754]. The possibility that individual contract terms might have different meanings under state and federal law would inevitably exert a disruptive influence upon both the negotiations and administration of collective agreements.
* * * * *
"The importance of the area which would be affected by separate systems of substantive law makes the need for a single body of federal law particularly compelling. The ordering and adjusting of competing interests through a process of free and voluntary collective bargaining is the keystone of the federal scheme to promote industrial peace. State law which frustrates the effort of Congress to stimulate the smooth functioning of that process thus strikes at the very core of federal labor policy. With due regard to the many factors which bear upon competing state and federal interests in this area, California v. Zook, 336 U.S. 725, 730-731 [69 S.Ct. 841, 843-44, 93 L.Ed. 1005]; Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230-231 [67 S.Ct. 1146, 1152, 91 L.Ed. 1447], we cannot by conclude that in acting § 301 Congress intended doctrines of federal labor law uniformly to prevail over inconsistent local rules." 369 U.S., at 104-105, 82 S.Ct at 577-578.
12
The petitioners agree that the "federal common law" will be borrowed from state law, and as the following statement by petitioners' counsel at oral argument illustrates, existing federal law may contribute little to the formulation of the new "federal" rule:
"Where the federal courts have to create a body of law, we don't believe that the normal course is to start from scratch. It's a process of incorporation except in the case of incompatibility. It's difficult for me to visualize an incompatibility between federal law and state law if the dispute is on whether a local union which owes another local union that is unrelated $500 has in fact violated a promissory note." Tr. of Oral Arg. 16.
13
This case is important not because of its unremarkable holding that a union constitution is a contract but because the case is a striking example of the easy way in which this Court enlarges the power of the Federal Government—and the Federal Judiciary in particular—at the expense of the States.
| 89
|
452 U.S. 640
101 S.Ct. 2559
69 L.Ed.2d 298
Michael HEFFRON, Secretary and Manager of the Minnesota State Agricultural Society Board of Managers, et al., Petitioners,v.INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS, INC., et al.
No. 80-795.
Argued April 20, 1981.
Decided June 22, 1981.
Syllabus
A rule (Rule 6.05) of the Minnesota Agricultural Society (Society), a Minnesota public corporation that operates the annual state fair, provides that sale or distribution of any merchandise, including printed or written material, except from a duly licensed location on the fairgrounds shall be a misdemeanor. As Rule 6.05 is construed and applied by the Society, all persons, groups, or firms desiring to sell, exhibit, or distribute materials during the fair must do so only from fixed locations. However, the Rule does not prevent organizational representatives from walking about the fairgrounds and communicating the organization's views to fair patrons in face-to-face discussions. Space in the fairgrounds is rented in a nondiscriminatory fashion on a first-come, first-served basis, and Rule 6.05 applies alike to nonprofit, charitable, and commercial enterprises. Respondents, International Society for Krishna Consciousness, Inc. (ISKCON), an organization espousing the views of the Krishna religion, and the head of one of its temples, filed suit in a Minnesota state court against state officials, seeking declaratory and injunctive relief on the ground that Rule 6.05, on its face and as applied, violated their First Amendment rights. ISKCON asserted that the Rule suppressed the practice of Sankirtan, a religious ritual that enjoins its members to go into public places to distribute or sell religious literature and to solicit donations for the support of the Krishna religion. The trial court upheld the constitutionality of Rule 6.05, but the Minnesota Supreme Court reversed.
Held: Rule 6.05, requiring members of ISKCON who desire to practice Sankirtan at the state fair to confine their distribution, sales, and solicitation activities to a fixed location, is a permissible restriction on the place and manner of communicating the views of the Krishna religion. Pp. 647-655.
(a) Rule 6.05 is not based upon the content or subject matter of speech, since it applies evenhandedly to all persons or organizations, whether commercial or charitable, who wish to distribute and sell written materials or to solicit funds. Nor is the Rule—which involves a method of allocating space on a first-come, first-served basis—open to the kind of arbitrary application that is inherently inconsistent with a valid time, place, and manner regulation as having the potential for becoming a means of suppressing a particular point of view. Pp. 648-649.
(b) The State's interest in maintaining the orderly movement of the crowd at fair is sufficient to satisfy the requirement that a time, place, or manner restriction must serve a significant governmental interest. The significance of that interest must be assessed in light of the characteristic nature and function of the particular forum involved. Because the fairgrounds comprise a relatively small area where an enormous variety of goods, services, entertainment, and other matters of interest are exhibited to large crowds on a temporary basis, the State's interest in the orderly movement and control of such an assembly is a substantial consideration. Pp. 649-651.
(c) The justification for Rule 6.05 cannot be measured solely on the basis of the disorder that would result from granting members of ISKCON an exemption from the Rule. Inclusion of peripatetic solicitation as part of a church ritual does not entitle church members to solicitation rights in a public forum superior to those of members of other religious groups that raise money but do not purport to ritualize the process. And if Rule 6.05 is an invalid restriction on ISKCON's activities, it is no more valid with respect to other social, political, or charitable organizations seeking to distribute information, sell wares, or solicit funds at the fair. Pp. 651-654.
(d) Similarly, Rule 6.05 cannot be viewed as an unnecessary regulation on the ground that the State could avoid the threat to its interest posed by ISKCON by less restrictive means, such as penalizing disorder, limiting the number of solicitors, or imposing more narrowly drawn restrictions on the location and movement of ISKCON's representatives. Since the inquiry must involve all other organizations that would be entitled to distribute, sell, or solicit if the booth rule may not be enforced with respect to ISKCON, it is improbable that such alternative means would deal adequately with the problems posed by the large number of distributors and solicitors that would be present on the fairgrounds. P. 654.
(e) Alternative forums for the expression of respondents' protected speech exist despite the effects of Rule 6.05. The Rule does not prevent ISKCON from practicing Sankirtan anywhere outside the fairgrounds, nor does it exclude ISKCON from the fairgrounds. Its members may mingle with the crowd and orally propagate their views, and ISKCON may also arrange for a booth and distribute and sell literature and solicit funds from that location on the fairgrounds. Pp. 654-655.
299 N.W.2d 79, reversed and remanded.
Kent G. Harbison, St. Paul, Minn., for petitioners.
Laurence H. Tribe, Cambridge, Mass., for respondents.
JUSTICE WHITE delivered the opinion of the Court.
1
The question presented for review is whether a State, consistent with the First and Fourteenth Amendments, may require a religious organization desiring to distribute and sell religious literature and to solicit donations at a state fair to conduct those activities only at an assigned location within the fairgrounds even though application of the rule limits the religious practices of the organization.
2
* Each year, the Minnesota Agricultural Society (Society), a public corporation organized under the laws of Minnesota, see Minn.Stat. § 37.01 (1980), operates a State Fair on a 125-acre state-owned tract located in St. Paul, Minn.1 The Fair is conducted for the purpose of "exhibiting . . . the agricultural, stock-breeding, horticultural, mining, mechanical, industrial, and other products and resources of the state, including proper exhibits and expositions of the arts, human skills, and sciences." Ibid. The Fair is a major public event and attracts visitors from all over Minnesota as well as from other parts of the country. During the past five years, the average total attendance for the 12-day Fair has been 1,320,000 persons. The average daily attendance on weekdays has been 115,000 persons and on Saturdays and Sundays 160,000.
3
The Society is authorized to make all "bylaws, ordinances, and rules, not inconsistent with law, which it may deem necessary or proper for the government of the fair grounds. . . ." Minn.Stat. § 37.16 (1980). Under this authority, the Society promulgated Minnesota State Fair Rule 6.05 which provides in relevant part that
4
"[s]ale or distribution of any merchandise, including printed or written material except under license issued [by] the Society and/or from a duly-licensed location shall be a misdemeanor."
5
As Rule 6.05 is construed and applied by the Society, "all persons, groups or firms which desire to sell, exhibit or distribute materials during the annual State Fair must do so only from fixed locations on the fairgrounds."2 Although the Rule does not prevent organizational representatives from walking about the fairgrounds and communicating the organization's views with fair patrons in face-to-face discussions,3 it does require that any exhibitor conduct its sales, distribution, and fund solicitation operations from a booth rented from the Society. Space in the fairgrounds is rented to all comers in a nondiscriminatory fashion on a first-come, first-served basis with the rental charge based on the size and location of the booth.4 The Rule applies alike to nonprofit, charitable, and commercial enterprises.5
6
One day prior to the opening of the 1977 Minnesota State Fair, respondents International Society for Krishna Consciousness, Inc. (ISKCON), an international religious society espousing the views of the Krishna religion, and Joseph Beca, head of the Minneapolis ISKCON temple, filed suit against numerous state officials seeking a declaration that Rule 6.05, both on its face and as applied, violated respondents' rights under the First Amendment, and seeking injunctive relief prohibiting enforcement of the Rule against ISKCON and its members. Specifically, ISKCON asserted that the Rule would suppress the practice of Sankirtan, one of its religious rituals, which enjoins its members to go into public places to distribute or sell religious literature and to solicit donations for the support of the Krishna religion.6 The trial court entered temporary orders to govern the conduct of the parties during the 1977 Fair.7 When that event concluded and after a hearing, the trial court granted the state officials' motion for summary judgment, upholding the constitutionality of Rule 6.05. Relying on the reasoning in International Society for Krishna Consciousness, Inc. v. Evans, 440 F.Supp. 414 (SD Ohio 1977), the court found that the State's interest "in providing all fair goers and concessionaries with adequate and equal access to each other and in providing a minimum ofcongestion on the fairgrounds" was sufficient to sustain Rule 6.05's limitations as applied to respondents.8 The court, however, provided that respondents were free to "[r]oam throughout those areas of the fairgrounds generally open to the public for the purpose of discussing with others their religious beliefs."
7
On appeal, the Minnesota Supreme Court reversed, holding that Rule 6.05, as applied to respondents, unconstitutionally restricted the Krishnas' religious practice of Sankirtan. 299 N.W.2d 79 (1980). The court rejected the Society's proffered justifications for the Rule as inadequate to warrant the restriction. Furthermore, the application of Rule 6.05 to ISKCON was not essential to the furtherance of the State's interests in that those interests could be served by means less restrictive of respondents' First Amendment rights. We granted the state officials' petition for writ of certiorari in light of the important constitutional issues presented and the conflicting results reached in similar cases in various lower courts.9 449 U.S. 1109, 101 S.Ct. 917, 66 L.Ed.2d 838.
II
8
The State does not dispute that the oral and written dissemination of the Krishnas' religious views and doctrines is protected by the First Amendment. See Schneider v. State, 308 U.S. 147, 160, 162-164, 60 S.Ct. 146, 150, 151-152, 84 L.Ed. 155 (1939); Lovell v. City of Griffin, 303 U.S. 444, 452, 58 S.Ct. 666, 669, 82 L.Ed. 949 (1938). Nor does it claim that this protection is lost because the written materials sought to be distributed are sold rather than given away or because contributions or gifts are solicited in the course of propagating the faith. Our cases indicate as much. Murdock v. Pennsylvania, 319 U.S. 105, 111, 63 S.Ct. 870, 874, 87 L.Ed. 1292 (1943); Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 632, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980). See Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940).
9
It is also common ground, however, that the First Amendment does not guarantee the right to communicate one's views at all times and places or in any manner that may be desired. Adderley v. Florida, 385 U.S. 39, 47-48, 87 S.Ct. 242, 247, 17 L.Ed.2d 149 (1966); Poulos v. New Hampshire, 345 U.S. 395, 405, 73 S.Ct. 760, 766, 97 L.Ed. 1105 (1953); see Cox v. Louisiana, 379 U.S. 536, 554, 85 S.Ct. 453, 464, 13 L.Ed.2d 471 (1965). As the Minnesota Supreme Court recognized, the activities of ISKCON, like those of others protected by the First Amendment, are subject to reasonable time, place, and manner restrictions. Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); Adderley v. Florida, supra; Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513 (1949); Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049 (1941).10 "We have often approved restrictions of that kind provided that they are justified without reference to the content of the regulated speech, that they serve a significant governmental interest, and that in doing so they leave open ample alternative channels for communication of the information." Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748, 771, 96 S.Ct. 1817, 1830, 48 L.Ed.2d 346 (1976); see also Consolidated Edison Co. v. Public Service Comm'n, 447 U.S. 530, 535, 100 S.Ct. 2326, 2331, 65 L.Ed.2d 319 (1980). The issue here, as it was below, is whether Rule 6.05 is a permissible restriction on the place and manner of communicating the views of the Krishna religion, more specifically, whether the Society may require the members of ISKCON who desire to practice Sankirtan at the State Fair to confine their distribution, sales, and solicitation activities to a fixed location.
10
A major criterion for a valid time, place and manner restriction is that the restriction "may not be based upon either the content or subject matter of speech." Consolidated Edison Co. v. Public Service Comm'n, supra, at 536, 100 S.Ct., at 2332.11 Rule 6.05 qualifies in this respect, since as the Supreme Court of Minnesota observed, the Rule applies evenhandedly to all who wish to distribute and sell written materials or to solicit funds. No person or organization, whether commercial or charitable, is permitted to engage in such activities except from a booth rented for those purposes.12
11
Nor does Rule 6.05 suffer from the more covert forms of discrimination that may result when arbitrary discretion is vested in some governmental authority. The method of allocating space is a straightforward first-come, first-served system. The Rule is not open to the kind of arbitrary application that this Court has condemned as inherently inconsistent with a valid time, place, and manner regulation because such discretion has the potential for becoming a means of suppressing a particular point of view. See Shuttlesworth v. Birmingham, 394 U.S. 147, 150-153, 89 S.Ct. 935, 938-940, 22 L.Ed.2d 162 (1969); Cox v. Louisiana, supra, at 555-558, 85 S.Ct., at 464-466; Staub v. City of Baxley, 355 U.S. 313, 321-325, 78 S.Ct. 277, 281-284, 2 L.Ed.2d 302 (1958); Largent v. Texas, 318 U.S. 418, 63 S.Ct. 667, 87 L.Ed. 873 (1943); Cantwell v. Connecticut, supra, at 304, 60 S.Ct., at 903; Schneider v. State, 308 U.S., at 164, 60 S.Ct., at 152; Hague v. CIO, 307 U.S. 496, 516, 59 S.Ct. 954, 964, 83 L.Ed. 1423 (1939).
12
A valid time, place, and manner regulation must also "serve a significant governmental interest." Virginia Pharmacy Board v. Virginia Citizens Consumer Council, supra, at 771, 96 S.Ct., at 1830. See Grayned v. City of Rockford, supra, at 108, 92 S.Ct., at 2298. Here, the principal justification asserted by the State in support of Rule 6.05 is the need to maintain the orderly movement of the crowd given the large number of exhibitors and persons attending the Fair.13
13
The fairgrounds comprise a relatively small area of 125 acres, the bulk of which is covered by permanent buildings, temporary structures, parking lots, and connecting thoroughfares. There were some 1,400 exhibitors and concessionaires renting space for the 1977 and 1978 Fairs, chiefly in permanent and temporary buildings. The Fair is designed to exhibit to the public an enormous variety of goods, services, entertainment, and other matters of interest. This is accomplished by confining individual exhibitors to fixed locations, with the public moving to and among the booths or other attractions, using streets and open spaces provided for that purpose. Because the Fair attracts large crowds, see supra, at 643, it is apparent that the State's interest in the orderly movement and control of such an assembly of persons is a substantial consideration.
14
As a general matter, it is clear that a State's interest in protecting the "safety and convenience" of persons using a public forum is a valid governmental objective. See Grayned v. City of Rockford, 408 U.S., at 115, 92 S.Ct., at 2302; Cox v. New Hampshire, 312 U.S., at 574, 61 S.Ct., at 765. Furthermore, consideration of a forum's special attributes is relevant to the constitutionality of a regulation since the significance of the governmental interest must be assessed in light of the characteristic nature and function of the particular forum involved. See, e. g., Grayned v. City of Rockford, supra, at 116-117, 92 S.Ct., at 2303; Lehman v. City of Shaker Heights, 418 U.S. 298, 302-303, 94 S.Ct. 2714, 2716-2717, 41 L.Ed.2d 770 (1974). This observation bears particular import in the present case since respondents make a number of analogies between the fairgrounds and city streets which have "immemorially been held in trust for the use of the public and . . . have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions." Hague v. CIO, supra, at 515, 59 S.Ct., at 963. See Kunz v. New York, 340 U.S. 290, 293, 71 S.Ct. 312, 314, 95 L.Ed. 280 (1951). But it is clear that there are significant differences between a street and the fairgrounds. A street is continually open, often uncongested, and constitutes not only a necessary conduit in the daily affairs of a locality's citizens, but also a place where people may enjoy the open air or the company of friends and neighbors in a relaxed environment. The Minnesota Fair, as described above, is a temporary event attracting great numbers of visitors who come to the event for a short period to see and experience the host of exhibits and attractions at the Fair. The flow of the crowd and demands of safety are more pressing in the context of the Fair. As such, any comparisons to public streets are necessarily inexact.
15
The Minnesota Supreme Court recognized that the State's interest in the orderly movement of a large crowd and in avoiding congestion was substantial and that Rule 6.05 furthered that interest significantly.14 Nevertheless, the Minnesota Supreme Court declared that the case did not turn on the "importance of the state's undeniable interest in preventing the widespread disorder that would surely exist if no regulation such as Rule 6.05 were in effect" but upon the significance of the State's interest in avoiding whatever disorder would likely result from granting members of ISKCON an exemption from the Rule. 299 N.W.2d, at 83. Approaching the case in this way, the court concluded that although some disruption would occur from such an exemption, it was not of sufficient concern to warrant confining the Krishnas to a booth. The court also concluded that, in any event, the Rule was not essential to the furtherance of the State's interest in crowd control, which could adequately be served by less intrusive means.
16
As we see it, the Minnesota Supreme Court took too narrow a view of the State's interest in avoiding congestion and maintaining the orderly movement of fair patrons on the fairgrounds. The justification for the Rule should not be measured by the disorder that would result from granting an exemption solely to ISKCON. That organization and its ritual of Sankirtan have no special claim to First Amendment protection as compared to that of other religions who also distribute literature and solicit funds.15 None of our cases suggest that the inclusion of peripatetic solicitation as part of a church ritual entitles church members to solicitation rights in a public forum superior to those of members of other religious groups that raise money but do not purport to ritualize the process. Nor for present purposes do religious organizations enjoy rights to communicate, distribute, and solicit on the fairgrounds superior to those of other organizations having social, political, or other ideological messages to proselytize. These nonreligious organizations seeking support for their activities are entitled to rights equal to those of religious groups to enter a public forum and spread their views, whether by soliciting funds or by distributing literature.
17
If Rule 6.05 is an invalid restriction on the activities of ISKCON, it is no more valid with respect to the other social, political, or charitable organizations that have rented booths at the Fair and confined their distribution, sale, and fund solicitation to those locations. Nor would it be valid with respect to other organizations that did not rent booths, either because they were unavailable due to a lack of space or because they chose to avoid the expense involved, but that would in all probability appear in the fairgrounds to distribute, sell, and solicit if they could freely do so. The question would also inevitably arise as to what extent the First Amendment also gives commercial organizations a right to move among the crowd to distribute information about or to sell their wares as respondents claim they may do.
18
ISKCON desires to proselytize at the fair because it believes it can successfully communicate and raise funds. In its view, this can be done only by intercepting fair patrons as they move about, and if success is achieved, stopping them momentarily or for longer periods as money is given or exchanged for literature. This consequence would be multiplied many times over if Rule 6.05 could not be applied to confine such transactions by ISKCON and others to fixed locations. Indeed, the court below agreed that without Rule 6.05 there would be widespread disorder at the fairgrounds. The court also recognized that some disorder would inevitably result from exempting the Krishnas from the Rule. Obviously, there would be a much larger threat to the State's interest in crowd control if all other religious, nonreligious, and noncommercial organizations could likewise move freely about the fairgrounds distributing and selling literature and soliciting funds at will. Given these considerations, we hold that the State's interest in confining distribution, selling, and fund solicitation activities to fixed locations is sufficient to satisfy the requirement that a place or manner restriction must serve a substantial state interest. By focusing on the incidental effect of providing an exemption from Rule 6.05 to ISKCON, the Minnesota Supreme Court did not take into account the fact that any such exemption cannot be meaningfully limited to ISKCON, and as applied to similarly situated groups would prevent the State from furthering its important concern with managing the flow of the crowd. In our view, the Society may apply its Rule and confine the type of transactions at issue to designated locations without violating the First Amendment.
19
For similar reasons, we cannot agree with the Minnesota Supreme Court that Rule 6.05 is an unnecessary regulation because the State could avoid the threat to its interest posed by ISKCON by less restrictive means, such as penalizing disorder or disruption, limiting the number of solicitors, or putting more narrowly drawn restrictions on the location and movement of ISKCON's representatives. As we have indicated, the inquiry must involve not only ISKCON, but also all other organizations that would be entitled to distribute, sell, or solicit if the booth rule may not be enforced with respect to ISKCON. Looked at in this way, it is quite improbable that the alternative means suggested by the Minnesota Supreme Court would deal adequately with the problems posed by the much larger number of distributors and solicitors that would be present on the fairgrounds if the judgment below were affirmed.
20
For Rule 6.05 to be valid as a place and manner restriction, it must also be sufficiently clear that alternative forums for the expression of respondents' protected speech exist despite the effects of the Rule. Rule 6.05 is not vulnerable on this ground. First, the Rule does not prevent ISKCON from practicing Sankirtan anywhere outside the fairgrounds. More importantly, the Rule has not been shown to deny access within the forum in question. Here, the Rule does not exclude ISKCON from the fairgrounds, nor does it deny that organization the right to conduct any desired activity at some point within the forum. Its members may mingle with the crowd and orally propagate their views. The organization may also arrange for a booth and distribute and sell literature and solicit funds from that location on the fairgrounds itself. The Minnesota State Fair is a limited public forum in that it exists to provide a means for a great number of exhibitors temporarily to present their products or views, be they commercial, religious, or political, to a large number of people in an efficient fashion. Considering the limited functions of the Fair and the combined area within which it operates, we are unwilling to say that Rule 6.05 does not provide ISKCON and other organizations with an adequate means to sell and solicit on the fairgrounds. The First Amendment protects the right of every citizen to "reach the minds of willing listeners and to do so there must be opportunity to win their attention." Kovacs v. Cooper, 336 U.S. 77, 87, 69 S.Ct. 448, 453, 93 L.Ed. 513 (1949). Rule 6.05 does not unnecessarily limit that right within the fairgrounds.16
21
The judgment of the Supreme Court of Minnesota is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
22
So ordered.
23
Justice BRENNAN, with whom Justice MARSHALL and Justice STEVENS join, concurring in part and dissenting in part.
24
As the Court recognizes, the issue in this case is whether Minnesota State Fair Rule 6.05 constitutes a reasonable time, place, and manner restriction on respondents' exercise of protected First Amendment rights. See Schad v. Mount Ephraim, 452 U.S. 61, 74-76, 101 S.Ct. 2176, 2186, 68 L.Ed.2d 671; Grayned v. City of Rockford, 408 U.S. 104, 115-116, 92 S.Ct. 2294, 2302, 33 L.Ed.2d 222 (1972). In deciding this issue, the Court considers, inter alia, whether the regulation serves a significant governmental interest and whether that interest can be served by a less intrusive restriction. See ante, at 649-650, 654. The Court errs, however, in failing to apply its analysis separately to each of the protected First Amendment activities restricted by Rule 6.05. Thus, the Court fails to recognize that some of the State's restrictions may be reasonable while others may not.
25
Rule 6.05 restricts three types of protected First Amendment activity: distribution of literature, sale of literature, and solicitation of funds. See Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 632, 633, 100 S.Ct. 826, 833, 834, 63 L.Ed.2d 73 (1980); Murdock v. Pennsylvania, 319 U.S. 105, 108, 63 S.Ct. 870, 872, 87 L.Ed. 1292 (1943); Jamison v. Texas, 318 U.S. 413, 416, 63 S.Ct. 669, 671, 87 L.Ed. 869 (1943); Schneider v. State, 308 U.S. 147, 160, 60 S.Ct. 146, 150, 84 L.Ed. 155 (1939); Lovell v. Griffin, 303 U.S. 444, 452, 58 S.Ct. 666, 669, 82 L.Ed. 949 (1938). No individual or group is permitted to engage in these activities at the Minnesota State Fair except from preassigned, rented booth locations. Violation of this Rule constitutes a misdemeanor, and violators are subject to arrest and expulsion from the fairgrounds.
26
The State advances three justifications for its booth Rule. The justification relied upon by the Court today is the State's interest in maintaining the orderly movement of the crowds at the fair. Ante, at 649-650. The second justification, relied upon by the dissenting justices below, 299 N.W.2d 79, 87 (Minn.1980), is the State's interest in protecting its fairgoers from fraudulent, deceptive, and misleading solicitation practices. The third justification, based on the "captive audience" doctrine, is the State's interest in protecting its fairgoers from annoyance and harassment.
27
I quite agree with the Court that the State has a significant interest in maintaining crowd control on its fairgrounds. See Grayned v. City of Rockford, supra, 408 U.S., at 115-116, 92 S.Ct., at 2302-2303, Cox v. New Hampshire, 312 U.S. 569, 574, 61 S.Ct. 762, 765, 85 L.Ed. 1049 (1941). I also have no doubt that the State has a significant interest in protecting its fairgoers from fraudulent or deceptive solicitation practices. See Schaumburg v. Citizens for a Better Environment, supra, 444 U.S., at 636, 100 S.Ct., at 836; Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748, 771-772, 96 S.Ct. 1817, 1830-1831, 48 L.Ed.2d 346 (1976). Indeed, because I believe on this record that this latter interest is substantially furthered by a Rule that restricts sales and solicitation activities to fixed booth locations, where the State will have the greatest opportunity to police and prevent possible deceptive practices, I would hold that Rule 6.05's restriction on those particular forms of First Amendment expression is justified as an antifraud measure. Accordingly, I join the judgment of the Court insofar as it upholds Rule 6.05's restriction on sales and solicitations. However, because I believe that the booth Rule is an overly intrusive means of achieving the State's interest in crowd control, and because I cannot accept the validity of the State's third asserted justification.1 I dissent from the Court's approval of Rule 6.05's restriction on the distribution of literature.
28
As our cases have long noted, once a governmental regulation is shown to impinge upon basic First Amendment rights, the burden falls on the government to show the validity of its asserted interest and the absence of less intrusive alternatives. See, e. g., Schneider v. State, supra. The challenged "regulation must be narrowly tailored to further the State's legitimate interest." Grayned v. City of Rockford, supra, 408 U.S., at 116-117, 92 S.Ct., at 2303. Minnesota's Rule 6.05 does not meet this test.
29
The Minnesota State Fair is an annual 12-day festival of people and ideas. Located on permanent fairgrounds comprising approximately 125 acres, the fair attracts an average of 115,000 visitors on weekdays and 160,000 on Saturdays and Sundays. Once the fairgoers pay their admission fees, they are permitted to roam the fairgrounds at will, visiting booths, meeting friends, or just milling about. Significantly, each and every fairgoer, whether political candidate, concerned citizen, or member of a religious group, is free to give speeches, engage in face-to-face advocacy, campaign, or proselytize. No restrictions are placed on any fairgoer's right to speak at any time, at any place, or to any person.2 Thus, if on a given day 5,000 members of ISKCON came to the fair and paid their admission fees, all 5,000 would be permitted to wander throughout the fairgrounds, delivering speeches to whomever they wanted, about whatever they wanted. Moreover, because this right does not rest on Sankirtan or any other religious principle,3 it can be exercised by every political candidate, partisan advocate, and common citizen who has paid the price of admission. All share the identical right to move peripatetically and speak freely throughout the fairgrounds.
30
Because of Rule 6.05, however, as soon as a proselytizing member of ISKCON hands out a free copy of the Bhagavad-Gita to an interested listener, or a political candidate distributes his campaign brochure to a potential voter, he becomes subject to arrest and removal from the fairgrounds. This constitutes a significant restriction on First Amendment rights. By prohibiting distribution of literature outside the booths, the fair officials sharply limit the number of fairgoers to whom the proselytizers and candidates can communicate their messages. Only if a fairgoer affirmatively seeks out such information by approaching a booth does Rule 6.05 fully permit potential communicators to exercise their First Amendment rights.
31
In support of the crowd control justification,4 petitioners contend that if fairgoers are permitted to distribute literature, large crowds will gather, blocking traffic lanes and causing safety problems. As counsel for petitioners asserted at oral argument:
32
"[I]t seems to me that if you had [distribution] activity going on with not just the Krishnas but 10 or 20 or 30 representatives from perhaps 30 to 60 or 70 groups, that inevitably is going to draw more attention and going to cause or create more or less moving pockets or moving congested crowds . . . . [I]f all of a sudden the crowd becomes aware of the fact that dozens of people are walking around passing out materials and they're going to inevitably be attracted by that. Whereas, they wouldn't be if people were just talking." Tr. of Oral Arg. 18-19.
33
See also Brief for Petitioners 31.
34
But petitioners have failed to provide any support for these assertions. They have made no showing that relaxation of the booth Rule would create additional disorder in a fair that is already characterized by the robust and unrestrained participation of hundreds of thousands of wandering fairgoers. See International Society for Krishna Consciousness, Inc. v. Barber, 650 F.2d 430, 444, n.22 (CA2 1981). If fairgoers can make speeches, engage in face-to-face proselytizing, and buttonhole prospective supporters, they can surely distribute literature to members of their audience without significantly adding to the State's asserted crowd control problem. Cf. Martin v. Struthers, 319 U.S. 141, 151, 63 S.Ct. 862, 867, 87 L.Ed. 1313 (1943) (Murphy, J. concurring) (invalidating ordinance that banned house-to-house distribution of handbills but did not ban house-to-house proselytizing). The record is devoid of any evidence that the 125-acre fairgrounds could not accommodate peripatetic distributors of literature just as easily as it now accommodates peripatetic speechmakers and proselytizers.5
35
Relying on a general, speculative fear of disorder, the State of Minnesota has placed a significant restriction on respondents' ability to exercise core First Amendment rights. This restriction is not narrowly drawn to advance the State's interests, and for that reason is unconstitutional. "[U]ndifferentiated 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. 503, 508, 89 S.Ct. 733, 737, 21 L.Ed.2d 731 (1969). If the State had a reasonable concern that distribution in certain parts of the fairgrounds—for example, entrances and exits—would cause disorder, it could have drafted its Rule to prohibit distribution of literature at those points. If the State felt it necessary to limit the number of persons distributing an organization's literature, it could, within reason, have done that as well.6 It had no right, however, to ban all distribution of literature outside the booths.7 A State
36
"may serve its legitimate interests, but it must do so by narrowly drawn regulations designed to serve those interests without unnecessarily interfering with First Amendment freedoms. . . . 'Broad prophylactic rules in the area of free expression are suspect. Precision of regulation must be the touchstone. . . .' " Schaumburg v. Citizens for a Better Environment, 444 U.S., at 637, 100 S.Ct. at 836, quoting NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 340, 9 L.Ed.2d 405 (1963).
37
Accord, Grayned v. City of Rockford, 408 U.S., at 116-117, 92 S.Ct., at 2303.
38
Because I believe that the State could have drafted a more narrowly drawn restriction on the right to distribute literature without undermining its interest in maintaining crowd control on the fairgrounds, I would affirm that part of the judgment below that strikes down Rule 6.05 as it applies to distribution of literature.
39
Justice BLACKMUN, concurring in part and dissenting in part.
40
For the reasons stated by Justice BRENNAN, I believe that Minnesota State Fair Rule 6.05 is unconstitutional as applied to the distribution of literature.1 I also agree, however, that the Rule is constitutional as applied to the sale of literature and the solicitation of funds. I reach this latter conclusion by a different route than does Justice BRENNAN for I am not persuaded that, under the Court's precedents, the State's interest in protecting fairgoers from fraudulent solicitation or sales practices justifies Rule 6.05's restrictions of those activities.2
41
In Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 636-637, 100 S.Ct. 826, 836-837, 63 L.Ed.2d 73 (1980), the Court stressed that a community's interest in preventing fraudulent solicitations must be met by narrowly drawn regulations that do not unnecessarily interfere with First Amendment freedoms. It there held that possibility of fraud in "door-to-door" or "on-street" solicitations could be countered "by measures less intrusive than a direct prohibition on solicitation," such as disclosure provisions and penal laws prohibiting fraudulent misrepresentations. Id., at 637-638, 100 S.Ct., at 836-837. I see no reason why the same considerations are not applicable here. There is nothing in this record to suggest that it is more difficult to police fairgrounds for fraudulent solicitations than it is to police an entire community's streets; just as fraudulent solicitors may "melt into a crowd" at the fair, so also may door-to-door solicitors quickly move on after consummating several transactions in a particular neighborhood. Indeed, since respondents have offered to wear identifying tags, see App. A-6, and since the fairgrounds are an enclosed area, it is at least arguable that it is easier to police the fairgrounds than a community's streets.
42
Nonetheless, I believe that the State's substantial interest in maintaining crowd control and safety on the fairgrounds does justify Rule 6.05's restriction on solicitation and sales activities not conducted from a booth. As the Court points out, ante, at 651, "[t]he flow of the crowd and demands of safety are more pressing in the context of the Fair" than in the context of a typical street. While I agree with Justice BRENNAN that the State's interest in order does not justify restrictions upon distribution of literature, I think that common-sense differences between literature distribution, on the one hand, and solicitation and sales, on the other, suggest that the latter activities present greater crowd control problems than the former. The distribution of literature does not require that the recipient stop in order to receive the message the speaker wishes to convey; instead, the recipient is free to read the message at a later time. For this reason, literature distribution may present even fewer crowd control problems than the oral proselytizing that the State already allows upon the fairgrounds. In contrast, as the dissent in the Minnesota Supreme Court observed, sales and the collection of solicited funds not only require the fairgoer to stop, but also "engender additional confusion . . . because they involve acts of exchanging articles for money, fumbling for and dropping money, making change, etc." 299 N.W.2d 79, 87 (1980). Rules restricting the exchange of money to booths have been upheld in analogous contexts, see e. g., International Society for Krishna Consciousness of Atlanta v. Eaves, 601 F.2d 809, 828-829 (CA5 1979) (Atlanta airports), and for similar reasons I would uphold Rule 6.05 insofar as it applies to solicitation and sales.
1
The facts are taken primarily from the parties' stipulation of facts filed with the Minnesota District Court on July 31, 1978, and reprinted in the joint appendix. App. A-30 through A-36.
2
Stipulation of Fact # 16.
3
Fair officials did not "intend to restrict [respondents] from peaceably walking around the fairgrounds and discussing their political, religious or other views with Fair patrons." Affidavit of Michael Heffron, App. A-28. See also Tr. of Oral Arg. 5-7. The trial court expressly permitted such oral proselytizing, see infra, at 646, and that part of the order was not challenged or appealed.
4
Over 1,400 exhibitors and concessionaires rented booth space during the 1977 and 1978 Fairs, with several hundred potential exhibitors denied rental space solely because of the limited amount of area available. The propriety of the fee is not an issue in the present case. Cf. Cox v. New Hampshire, 312 U.S. 569, 576-577, 61 S.Ct. 762, 766, 85 L.Ed. 1049 (1941).
5
The following represent some of the charitable, religious, and other non-commercial organizations that rented booth space at the 1978 Minnesota State Fair: Abortion Rights Council of Minnesota, American Association of Retired Persons, American Heart Association, American Party of Minnesota, Christian Business Men's Association, Church of Christ, D.F.L. State Central Committee, Faith Broadcasting Network, Inc., Independent Republicans of Minnesota, Minnesota Foster Parents Association, Twin Cities Baptist Messianic Witness, World Home Bible League, Christian Educational Service, Lutheran Colportage Service, Minnesota Citizens Concerned for Life, Save Our Unwanted Life, Inc., and United States-China Peoples Friendship Association.
6
In performing Sankirtan, ISKCON members "often greet members of the public by giving them flowers or small American flags. . . ." Stipulation of Fact # 11. For the purpose of this lawsuit, respondents did not assert any right to seek contributions in return for these "greeting gifts," nor did they seek to dance, chant, or engage in any other activities besides the distribution and sale of literature and the solicitation of donations. Ibid.
7
The trial court temporarily restrained the officials from "arresting, participating in the arrest of, excluding from the Fairgrounds, or preventing activities of [respondents], such as, espousing their religious beliefs, proselytizing others to those beliefs, distributing religious literature or soliciting donations for religious purposes in any portion of the Minnesota Fair Grounds generally open to the public during the 1977 Minnesota State Fair." The court enjoined respondents from "selling or inducing others to purchase, religious literature, items or artifacts, except at a space rented for that purpose on the grounds of the Minnesota Agricultural Society in compliance with the applicable regulations of said Society." Respondents took part in the 1977 Fair pursuant to the terms of the court order. The State submitted various affidavits stating that respondents violated the terms of the order by misrepresenting their cause in seeking solicitations, and by making similar fraudulent statements. These charges are disputed by respondents.
8
Given the great number of exhibitors at the State Fair, the trial court was of the view that "[s]ome form of time, place and manner restriction is clearly required if the free speech rights of each of these exhibitors are to be protected." Accordingly, the court ordered that respondents be prohibited from distributing materials such as books, flowers, flags, incense, or artifacts and from engaging in sales or solicitation for monetary donations throughout the fairgrounds except from a booth rented from the Society.
9
Compare International Society for Krishna Consciousness, Inc. v. Barber, 506 F.Supp. 147 (NDNY, 1980), rev'd, 650 F.2d 430 (CA2 1981) (invalidating "booth" rule); Edwards v. Maryland State Fair and Agricultural Society, Inc., 628 F.2d 282 (CA4 1980) (same); International Society for Krishna Consciousness, Inc. v. Bowen, 600 F.2d 667 (CA7) (same), cert. denied, 444 U.S. 963, 100 S.Ct. 448, 62 L.Ed.2d 375 (1979); International Society for Krishna Consciousness, Inc. v. Colorado State Fair and Industrial Exposition Comm'n, 199 Colo. 265, 610 P.2d 486 (Colo.1980) (same) with Hynes v. Metropolitan Government of Nashville, 478 F.Supp. 9 (MD Tenn.1979) (upholding "booth" rule); International Society for Krishna Consciousness, Inc. v. Evans, 440 F.Supp. 414 (SD Ohio 1977) (same). Related issues have been raised concerning religious groups' access to other types of public facilities. See International Society for Krishna Consciousness of Atlanta v. Eaves, 601 F.2d 809 (CA5 1979) (airports); International Society for Krishna Consciousness, Inc. v. Rochford, 585 F.2d 263 (CA7 1978) (same); International Society for Krishna Consciousness, Inc. v. McAvey, 450 F.Supp. 1265 (SDNY 1978) (World Trade Center); International Society for Krishna Consciousness, Inc. v. Hays, 438 F.Supp. 1077 (SD Fla.1977) (highway rest stops); United States v. Boesewetter, 463 F.Supp. 370 (DC 1978) (performing arts center).
10
In Cox v. New Hampshire, a religious group challenged a local ordinance forbidding street parades without a license. The Court held the requirement constitutional as a reasonable time, place, and manner regulation: "Where a restriction of the use of highways in that relation is designed to promote the public convenience in the interest of all, it cannot be disregarded by the attempted exercise of some civil right which in other circumstances would be entitled to protection." 312 U.S., at 574, 61 S.Ct., at 765. Kovacs v. Cooper upheld as applied to a sound truck a content-neutral and nondiscriminatory local ordinance against the emission of loud and raucous noises on the public streets. In Adderley v. Florida, no constitutional violation was discerned in applying a local trespass ordinance to persons demonstrating on the grounds of a city jail. We rejected the argument "that people who want to propagandize protests or views have a constitutional right to do so whenever and however and wherever they please" and held that 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." 385 U.S., at 47-48, 87 S.Ct., at 247. Grayned v. City of Rockford sustained as a reasonable time, place, and manner regulation a local ordinance forbidding disturbing noises in the vicinity of a building in which a school is in session.
11
See Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748, 771, 96 S.Ct. 1817, 1830, 48 L.Ed.2d 346 (1976); Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 93-94, 97 S.Ct. 1614, 1618-1619, 52 L.Ed.2d 155 (1977); Police Department of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972); Papish v. University of Minnesota Curators, 410 U.S. 667, 670, 93 S.Ct. 1197, 1199, 35 L.Ed.2d 618 (1973).
12
Respondents do argue that because the Rule requires ISKCON to await expressions of interest from fair patrons before it may distribute, sell, or solicit funds, the regulation is not content-neutral in that it prefers listener-initiated exchanges to those originating with the speaker. The argument is interesting but has little force. This aspect of the Rule is inherent in the determination to confine exhibitors to fixed locations, it applies to all exhibitors alike, and it does not invalidate the Rule as a reasonable time, place, and manner regulation.
13
Petitioners assert two other state interests in support of the Rule. First, petitioners claim that the Rule forwards the State's valid interest in protecting its citizens from fraudulent solicitations, deceptive or false speech, and undue annoyance. See Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980); Cantwell v. Connecticut, 310 U.S. 296, 306-307, 60 S.Ct. 900, 904, 84 L.Ed. 1213 (1940). Petitioners also forward the State's interest in protecting the fairgoers from being harassed or otherwise bothered, on the grounds that they are a captive audience. In light of our holding that the Rule is justified solely in terms of the State's interest in managing the flow of the crowd, we do not reach whether these other two purposes are constitutionally sufficient to support the imposition of the Rule.
14
The court stated that the facts suggested "a situation in which the state's interest in maintaining order is substantial. We have no doubt that Rule 6.05's requirement that all vendors, exhibitors, and concessionaires perform their functions at fixed locations furthers that interest significantly." 299 N.W.2d, at 83.
15
Respondents do not defend the limited approach of the Minnesota Supreme Court. They concede that whatever exemption they were entitled to under the First Amendment would apply to other organizations seeking similar rights to take part in certain protected activities in the public areas of the fairgrounds. See Brief for Respondents 8; Tr. of Oral Arg. 25-26.
16
Given this understanding of the nature of the Fair, we reject respondents' claim that Rule 6.05 effects a total ban on protected First Amendment activities in the open areas of the fairgrounds. In effect, respondents seek to separate, for constitutional purposes, the open areas of the fairgrounds from that part of the fairgrounds where the booths are located. For the reasons stated in text, we believe respondents' characterization of the Rule is plainly incorrect. The booths are not secreted away in some nonaccessible location, but are located within the area of the fairgrounds where visitors are expected, and indeed encouraged, to pass. Since respondents are permitted to solicit funds and distribute and sell literature from within the fairgrounds, albeit from a fixed location, it is inaccurate to say that Rule 6.05 constitutes a ban on such protected activity in the relevant public forum. Accordingly, the only question is the Rule's validity as a time, place, and manner restriction.
1
Because fairgoers are fully capable of saying "no" to persons seeking their attention and then walking away, they are not members of a captive audience. They have no general right to be free from being approached. See Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 638-639, 100 S.Ct. 826, 837, 63 L.Ed.2d 73 (1980); Martin v. Struthers, 319 U.S. 141, 143-144, 63 S.Ct. 862, 863, 87 L.Ed. 1313 (1943).
2
A state fair is truly a marketplace of ideas and a public forum for the communication of ideas and information. As one court has stated, a "fair is almost by definition a congeries of hawkers, vendors of wares and services, and purveyors of ideas, commercial, esthetic, and intellectual." International Society for Krishna Consciousness v. State Fair of Texas, 461 F.Supp. 719, 721 (ND Tex.1978). See also International Society for Krishna Consciousness, Inc. v. Barber, 650 F.2d 430, 444, n.21 (CA2 1981). Despite the Court's suggestion to the contrary, ante, at 651, a fair is surely a "natural and proper plac[e] for the dissemination of information and opinion." Schneider v. State, 308 U.S. 147, 163, 60 S.Ct. 146, 151, 84 L.Ed. 155 (1939). In no way could I agree that respondents' desired " 'manner of expression is basically incompatible with the normal activity' " of the fair. See Schad v. Mount Ephraim, 452 U.S., at 75, 101 S.Ct., at 2186, quoting Grayned v. City of Rockford, 408 U.S. 104, 116, 92 S.Ct. 2294, 2303, 33 L.Ed.2d 222 (1972).
3
I am somewhat puzzled by the Court's treatment of the Sankirtan issue. Respondents' complaint, based on 42 U.S.C. § 1983, alleges that Rule 6.05, on its face and as applied, violates both the Free Exercise and the Free Speech Clauses. In their brief and in oral argument, however, respondents emphasize that they do not claim any special treatment because of Sankirtan, but are willing to rest their challenge wholly upon their general right to free speech, which they concede is identical to the right enjoyed by every other religious, political, or charitable group. Tr. of Oral Arg. 26; Brief for Respondents 19-20, 47-48. There is therefore no need for the Court to discuss Sankirtan.
Having chosen to discuss it, however, the Court does so in a manner that is seemingly inconsistent with prior case law. The parties have stipulated that members of ISKCON have a unique "duty to perform a religious ritual known as Sankirtan, which consists of going out into public places, to disseminate or sell religious literature and to solicit contributions to support the publishing, religious, and educational functions of Krishna Consciousness." App. A-32. The Court, however, disparages the significance of this ritual, stating without explanation or supporting authority:
"[ISKCON] and its ritual of Sankirtan have no special claim to First Amendment protection as compared to that of other religions who also distribute literature and solicit funds. None of our cases suggest that the inclusion of peripatetic solicitation as part of a church ritual entitles church members to solicitation rights in a public forum superior to those of members of other religious groups that raise money but do not purport to ritualize the process." Ante, at 652 (footnote omitted).
Our cases are clear that governmental regulations which interfere with the exercise of specific religious beliefs or principles should be scrutinized with particular care. See, e. g., Sherbert v. Verner, 374 U.S. 398, 402-403, 83 S.Ct. 1790, 1793, 10 L.Ed.2d 965 (1963). As we stated in Wisconsin v. Yoder, 406 U.S. 205, 220, 92 S.Ct. 1526, 1535, 32 L.Ed.2d 15 (1972), "there are areas of conduct protected by the Free Exercise Clause of the First Amendment and thus beyond the power of the State to control, even under regulations of general applicability." I read the Court as accepting these precedents, and merely holding that even if Sankirtan is "conduct protected by the Free Exercise Clause," it is entitled to no greater protection than other forms of expression protected by the First Amendment that are burdened to the same extent by Rule 6.05.
4
Other than the "captive audience" justification, see n.1, supra, the only interest seriously asserted by petitioners in support of the restriction on distribution of literature is the State's interest in crowd control. At oral argument, counsel for petitioners expressly declined to advance an antilittering objective, Tr. of Oral Arg. 16, and virtually conceded that the antifraud rationale would not apply unless the communicator sought to obtain money from the fairgoers. Id., at 14-16, 17-19. See also Brief for Petitioners 24-29.
5
Moreover, petitioners' expressed concerns are significantly undermined by three affidavits contained in the record which indicate that the State itself engages in the seemingly forbidden practice of leafletting. Thus, the affidavit of Thomas Kerr states:
"2. On numerous occasions when I entered the [1977 Minnesota State Fair], the individual taking tickets would give to me a flier which stated that fairgoers might be approached by roving solicitors, that the fair neither licensed nor sanctioned them, and that complaints against them could be filed with the fair administration. On several occasions, I also noted individuals who appeared to be state fair employees handing out similar fliers at information booths and concession areas. On several occasions, I also noticed that individuals, who appeared to be state fair employees, would begin to distribute similar fliers to fairgoers in areas where I or my fellow ISKCON members were proselytizing or distributing literature." App. A-40 (emphasis added).
See also Affidavit of Joseph Beca, id., at A-38; Affidavit of David C. Ewert, id., at A-43. It is hard to believe the State is seriously concerned about the effects of leafletting, when apparently it too engages in such activity at the State Fair.
6
Respondents recognize that some limitations may constitutionally be imposed upon their right to distribute literature. Stipulation of Fact 23 states:
"ISKCON, while unwilling to confine its religious activities to a booth, has indicated its willingness to submit to the regulation of its members in their circulation throughout the fairgrounds to proselytize, distribute and sell literature, and solicit contributions." Id., at A-36.
In addition, paragraph 11 of respondents' complaint states:
"ISKCON's devotees have tried to allay any fears Defendants might have that their religious activity might be disruptive to normal Fair activities by offering to wear identifying name tags at all times, to limit the number of devotees at the State Fair Grounds, to approach only consenting patrons, to refrain from engaging Fair patrons in conversation near entrances or exits to buildings or exhibits or in areas where there are lines or queues, and to identify themselves to Fair officials, including police officials." Id., at A-6.
See also Tr. of Oral Arg. 30, 34-35.
7
As the Minnesota Supreme Court concluded:
"The state's interest can be adequately served by means less restrictive of First Amendment rights. Conduct that tends to create disorder on the fairgrounds may be specifically prohibited." 299 N.W.2d 79, 84 (1980).
1
Like Justice BRENNAN, I would not reach the question whether respondents can claim an exemption from the operation of Rule 6.05 because of their adherence to the doctrine of Sankirtan.
2
It should be stressed that Rule 6.05 does not prevent respondents from wandering throughout the fairgrounds and directing interested donors or purchasers to their booth. See Brief for Petitioners 35-36. Thus, it is in fact only the exchange of money, rather than the solicitation per se of contributions or of purchases, that is limited to a booth. See 299 N.W.2d 79, 86 (Minn.1980) (opinion dissenting in part). Accordingly, I use the terms "solicitation" and "sales" to connote only the actual exchange of money, rather than the act of requesting that the fairgoer purchase literature or make a contribution at the booth.
| 23
|
452 U.S. 726
101 S.Ct. 2605
69 L.Ed.2d 368
UNITED STATES of America, Plaintiff,v.State of LOUISIANA.
No. 9, Orig.
June 22, 1981.
1
On Bill of Complaint (Louisiana Boundary Case).
2
The Supplemental Report of the Special Master is received and ordered filed.
FINAL DECREE
3
On April 28, 1980, this Court resolved all remaining issues between the United States and the State of Louisiana and returned the case to the Special Master for a "determination of the final amount due and owing, and the method of payment." 446 U.S. 253, 272-273, 100 S.Ct. 1618, 1630, 64 L.Ed.2d 196. The parties have agreed upon these matters, have submitted to the Special Master a proposed final decree, and the Special Master, with the concurrence of both parties, has recommended its entry by the Court.
4
Accordingly,
IT IS ORDERED, ADJUDGED, AND DECREED:
5
1. As against the Defendant State of Louisiana and all persons claiming under it, the United States has exclusive rights to explore the area of the Continental Shelf lying seaward of the line described in Exhibit A hereof, and to exploit the natural resources of said area; the State of Louisiana is not entitled to any interest in such lands, minerals, and resources, except as may be provided by 43 U.S.C. § 1337(g), and said State, its privies, assigns, lessees, and other persons claiming under it are hereby enjoined from interfering withthe rights of the United States in such lands, minerals and resources.
6
2. As against the plaintiff United States and all persons claiming under it, the State of Louisiana has exclusive rights to explore the area lying shoreward of the line described in Exhibit A hereof, and to exploit the natural resources of said areas, with the exceptions provided by Section 5 of the Submerged Lands Act, 67 Stat. 32, 43 U.S.C. § 1313; the United States is not entitled to any interest in such lands, minerals, and resources and said United States, its privies, assigns, lessees and other persons claiming under it are hereby enjoined from interfering with the rights of the State of Louisiana in such lands, minerals and resources.
7
3. The line described in Exhibit A hereof is a line three geographic miles seaward of the coastline described in Exhibit A to the Decree of June 16, 1975 (422 U.S. 13, 19-32). Except as otherwise provided for limited past periods by paragraph 10 and Exhibit B of the said Decree of June 16, 1975, these two lines shall supersede all prior descriptions and be deemed to define the coastline and its three-mile projection for all periods present and past. Moreover, until and unless superseded by a subsequent final decree of this Court or agreement of the parties, the line described in Exhibit A hereof shall remain in effect for all purposes relevant to the Submerged Lands Act, 43 U.S.C. §§ 1301-1315, including exploitation of mineral resources; and, with respect to any period during which this line remains in effect, neither party shall ever be held to account to the other for or reimburse the other for any revenues derived from or attributable to sales, leases, licenses or exploitation of lands, minerals or resources adjudicated to that party by paragraph 1 or paragraph 2 hereof.
8
4. All prior accountings, claims and objections affecting the liability of one party to the other with respect to revenues derived from exploitation of off-shore submerged lands and resources before June 16, 1975, and not impounded pursuantto the Interim Agreement of October 12, 1956, have been resolved. However, notwithstanding anything to the contrary in any previous decree of this Court or in the Interim Agreement of October 12, 1956, this net balance shall not be payable until the accountings provided for in paragraphs 5 and 6 hereof shall have been filed and settled, and the said net balance shall be subject to offset against the liability resulting from those accountings.
9
5. Not later than December 1, 1981, the State of Louisiana shall render to the United States and file with the Court a true, full and accurate account of all revenues, other than severance taxes, pipeline rentals, and administrative charges, derived from or attributable to the exploitation of lands, minerals or resources within the area described in paragraph 1 hereof since June 16, 1975. Where such revenues are derived from leases embracing areas on both sides of the line described in Exhibit A hereof, they shall be apportioned as follows: as to bonuses and rentals, on the basis of relative acreage; as to royalties, on the basis of the location of the well completion point, except when an outstanding agreement between the parties specifies a different basis of allocation which, in that event, shall govern.
10
6. Not later than December 1, 1981, the United States shall render to the State of Louisiana and file with the Court a true, full and accurate accounting of all revenues, other than pipeline rentals and administrative charges, which remain impounded pursuant to the Interim Agreement of October 12, 1956, and which are derived from or attributable to the exploitation of lands, minerals or resources within the area described in paragraph 2 hereof or, for the limited periods there specified, areas landward of the lines described in Exhibit B hereof. The allocation of revenues from leases embracing areas on both sides of the line described in Exhibit A hereof or, for the relevant periods, Exhibit B hereof, shall be on the same basis as set forth in paragraph 5 hereof.
11
7. Any objections to the accounting required by paragraphs 5 and 6 hereof shall be filed with the Court and served on the other party not later than January 1, 1982. Immediately after January 1, 1982, any undisputed net balance resulting from the unchallenged portions of the accountings required by paragraphs 5 and 6 hereof and the liability specified in paragraph 4 hereof, shall be paid by the party whose net liability is greater to the other party, notwithstanding any outstanding objections as to other portions of the accountings and notwithstanding any provisions barring offsets in prior decrees or the Interim Agreement of October 12, 1956. Any remaining net balance shall be paid promptly after objections are resolved.
12
8. Nothing in this decree shall affect the rights or obligations of either party with respect to its lessees or other third parties, whether arising from the Interim Agreement of October 12, 1956, or otherwise. Nor shall anything in this decree affect any rights or obligations arising under present or future unitization, operating, enhanced recovery, commingling, or other similar agreements between the parties or with others.
13
9. Nothing in this decree or in the proceedings leading to it shall prejudice any rights, claims or defenses of the State of Louisiana as to its maritime lateral boundaries with any other state, which boundaries are not at issue in this litigation, nor shall the United States in any way be prejudiced hereby as to such matters.
14
10. The Court retains jurisdiction to entertain such further proceedings, enter such orders and issue such writs as may from time to time be deemed necessary or advisable to resolve any disputes that may arise over the accountings provided for in this decree, and to give proper force and effect to its previous orders or decrees herein or to this decree. In all other respects, this is a final decree; and the Interim Agreement of October 12, 1956, is terminated for all purposes as of 5 p.m. on the first day of January, 1982, or the date on which any objections to accountings are finally resolved.
Final Decree
EXHIBIT A
X Y
BEGINNING AT 2769357 575650
15
BY STRAIGHT LINE TO 2790258 526390
16
BY ARC CENTERED AT 2779032 512013
17
TO 2791385 525434
18
BY STRAIGHT LINE TO 2793119 523838
19
BY ARC CENTERED AT 2780766 510417
20
TO 2794594 522313
21
BY STRAIGHT LINE TO 2795887 520810
22
BY ARC CENTERED AT 2782059 508914
23
TO 2796579 519954
24
BY STRAIGHT LINE TO 2799209 516495
25
BY ARC CENTERED AT 2784689 505455
26
TO 2800441 514653
27
BY STRAIGHT LINE TO 2804270 508096
28
BY ARC CENTERED AT 2788518 498898
29
TO 2804495 507699
30
BY STRAIGHT LINE TO 2806028 504916
31
BY ARC CENTERED AT 2790051 496115
32
TO 2807014 502822
33
BY STRAIGHT LINE TO 2808653 498677
34
BY ARC CENTERED AT 2791690 491970
35
TO 2809151 497245
36
BY STRAIGHT LINE TO 2812250 486987
37
BY ARC CENTERED AT 2794789 481712
38
TO 2812519 485996
39
BY STRAIGHT LINE TO 2813932 480148
40
BY ARC CENTERED AT 2796202 475864
41
TO 2814262 478425
42
BY STRAIGHT LINE TO 2815269 471324
43
BY ARC CENTERED AT 2797209 468763
44
TO 2815426 469688
45
BY STRAIGHT LINE TO 2815673 464823
46
BY ARC CENTERED AT 2797456 463898
47
TO 2815697 463895
48
BY STRAIGHT LINE TO 2815696 458116
49
BY ARC CENTERED AT 2797455 458119
50
TO 2815657 456928
51
BY STRAIGHT LINE TO 2815269 450999
Final Decree
X Y
BY ARC CENTERED AT 2797067 452190
TO 2815171 449960
BY STRAIGHT LINE TO 2813957 440103
BY ARC CENTERED AT 2795853 442333
TO 2813809 439123
BY STRAIGHT LINE TO 2812678 432796
BY ARC CENTERED AT 2794722 436006
TO 2812419 431584
BY STRAIGHT LINE TO 2810957 425733
BY ARC CENTERED AT 2793260 430155
TO 2810699 424807
BY STRAIGHT LINE TO 2807854 415530
BY ARC CENTERED AT 2790415 420878
TO 2807572 414684
BY STRAIGHT LINE TO 2805322 408452
BY ARC CENTERED AT 2788165 414646
TO 2805227 408196
BY STRAIGHT LINE TO 2803786 404384
BY ARC CENTERED AT 2786724 410834
TO 2803319 403263
BY STRAIGHT LINE TO 2799845 395648
BY ARC CENTERED AT 2783250 403219
TO 2798971 393968
BY STRAIGHT LINE TO 2795394 387889
BY ARC CENTERED AT 2779673 397140
TO 2795311 387750
BY STRAIGHT LINE TO 2793560 384834
BY ARC CENTERED AT 2777922 394224
TO 2792249 382934
BY STRAIGHT LINE TO 2790814 381113
BY ARC CENTERED AT 2776487 392403
TO 2789360 379480
BY ARC CENTERED AT 2774670 390293
TO 2788262 378129
BY STRAIGHT LINE TO 2786553 375045
BY ARC CENTERED AT 2770599 383887
TO 2785045 372750
BY STRAIGHT LINE TO 2783942 371319
BY STRAIGHT LINE TO 2783792 371062
Final Decree
X Y
BY ARC CENTERED AT 2768031 380244
TO 2780548 366976
BY STRAIGHT LINE TO 2775735 360553
BY ARC CENTERED AT 2761138 371491
TO 2775111 359766
BY STRAIGHT LINE TO 2773031 357287
BY ARC CENTERED AT 2757465 366796
TO 2771721 355417
BY STRAIGHT LINE TO 2770633 354054
BY STRAIGHT LINE TO 2770505 353847
BY ARC CENTERED AT 2755015 363480
TO 2767788 350458
BY STRAIGHT LINE TO 2761994 344775
BY ARC CENTERED AT 2749221 357797
TO 2760703 343624
BY STRAIGHT LINE TO 2757791 341265
BY ARC CENTERED AT 2746309 355438
TO 2756022 339999
BY STRAIGHT LINE TO 2754136 338812
BY STRAIGHT LINE TO 2742173 323079
BY ARC CENTERED AT 2727653 334120
TO 2741983 322834
BY STRAIGHT LINE TO 2741182 321817
BY ARC CENTERED AT 2726852 333103
TO 2738042 318698
BY STRAIGHT LINE TO 2736381 317408
BY STRAIGHT LINE TO 2736060 316935
BY STRAIGHT LINE TO 2732627 311249
BY ARC CENTERED AT 2717012 320677
TO 2731416 309486
BY STRAIGHT LINE TO 2729640 307200
BY ARC CENTERED AT 2715236 318391
TO 2728702 306088
BY STRAIGHT LINE TO 2728099 305428
BY ARC CENTERED AT 2714633 317731
TO 2725197 302861
BY STRAIGHT LINE TO 2723888 301931
BY ARC CENTERED AT 2713324 316801
TO 2720770 300149
Final Decree
X Y
BY STRAIGHT LINE TO 2719218 299455
BY ARC CENTERED AT 2711772 316107
TO 2714238 298034
BY STRAIGHT LINE TO 2704480 294684
BY STRAIGHT LINE TO 2704099 293666
BY ARC CENTERED AT 2687014 300054
TO 2701338 288761
BY STRAIGHT LINE TO 2699382 286280
BY ARC CENTERED AT 2685058 297573
TO 2697436 284175
BY STRAIGHT LINE TO 2699302 266715
BY ARC CENTERED AT 2688235 252215
TO 2704468 260534
BY ARC CENTERED AT 2689305 250395
TO 2707507 251577
BY ARC CENTERED AT 2700735 234640
TO 2717908 240788
BY ARC CENTERED AT 2701500 232820
TO 2719022 237890
BY ARC CENTERED AT 2707635 223640
TO 2721632 235337
BY STRAIGHT LINE TO 2736873 228413
BY ARC CENTERED AT 2738320 210230
TO 2745585 226961
BY ARC CENTERED AT 2738938 209975
TO 2749646 224742
BY ARC CENTERED AT 2750755 206535
TO 2759837 222354
BY ARC CENTERED AT 2755325 204680
TO 2773229 201192
BY ARC CENTERED AT 2755178 203815
TO 2770763 194337
BY ARC CENTERED AT 2754100 186915
TO 2771780 191404
BY ARC CENTERED AT 2754263 186316
TO 2772100 182502
BY ARC CENTERED AT 2753885 183460
TO 2765449 169354
BY ARC CENTERED AT 2752470 182170
Final Decree
X Y
TO 2761213 166161
BY ARC CENTERED AT 2751045 181305
TO 2752202 163101
BY ARC CENTERED AT 2750586 181270
TO 2749611 163055
BY ARC CENTERED AT 2736662 175902
TO 2748316 161869
BY ARC CENTERED AT 2734720 174030
TO 2747824 161341
BY STRAIGHT LINE TO 2746249 159715
BY ARC CENTERED AT 2728153 162005
TO 2746094 158715
BY STRAIGHT LINE TO 2745156 153600
BY ARC CENTERED AT 2727215 156890
TO 2745054 153083
BY ARC CENTERED AT 2726951 150846
TO 2743622 143444
BY ARC CENTERED AT 2726105 148530
TO 2731258 131033
BY STRAIGHT LINE TO 2717872 114220
BY ARC CENTERED AT 2699815 116800
TO 2711432 102737
BY ARC CENTERED AT 2699695 116700
TO 2694008 99369
BY ARC CENTERED AT 2697850 117200
TO 2683320 106173
BY STRAIGHT LINE TO 2682980 106621
BY ARC CENTERED AT 2697510 117648
TO 2679799 113283
BY STRAIGHT LINE TO 2679589 114135
BY ARC CENTERED AT 2697300 118500
TO 2679155 116635
BY ARC CENTERED AT 2685325 133800
TO 2670977 122536
BY STRAIGHT LINE TO 2670888 122588
BY STRAIGHT LINE TO 2656605 119022
BY ARC CENTERED AT 2641835 129725
TO 2656150 118421
BY STRAIGHT LINE TO 2653860 115521
Final Decree
X Y
BY ARC CENTERED AT 2639545 126825
TO 2648682 111038
BY STRAIGHT LINE TO 2648610 110974
BY STRAIGHT LINE TO 2648531 110887
BY STRAIGHT LINE TO 2646419 107265
BY ARC CENTERED AT 2630660 116450
TO 2646250 106981
BY STRAIGHT LINE TO 2644270 103721
BY ARC CENTERED AT 2628680 113190
TO 2642494 101278
BY STRAIGHT LINE TO 2640182 98597
BY ARC CENTERED AT 2624995 108700
TO 2638408 96339
BY STRAIGHT LINE TO 2638210 96123
BY STRAIGHT LINE TO 2637530 95377
BY ARC CENTERED AT 2624045 107660
TO 2637471 95312
BY STRAIGHT LINE TO 2635351 93007
BY ARC CENTERED AT 2621925 105355
TO 2634923 92558
BY STRAIGHT LINE TO 2633653 91268
BY ARC CENTERED AT 2620655 104065
TO 2631973 89760
BY STRAIGHT LINE TO 2631344 89262
BY STRAIGHT LINE TO 2630156 87770
BY ARC CENTERED AT 2615885 99131
TO 2630068 87661
BY STRIAGHT LINE TO 2629389 86821
BY STRAIGHT LINE TO 2626027 82661
BY STRAIGHT LINE TO 2624340 80576
BY ARC CENTERED AT 2610160 92050
TO 2621555 77806
BY STRAIGHT LINE TO 2621180 77506
BY ARC CENTERED AT 2609785 91750
TO 2617996 75462
BY STRAIGHT LINE TO 2617391 75157
BY ARC CENTERED AT 2609180 91445
TO 2597416 77505
BY STRAIGHT LINE TO 2595526 79100
Final Decree
X Y
BY ARC CENTERED AT 2607290 93040
TO 2589664 97736
BY ARC CENTERED AT 2607455 93710
TO 2591541 102625
BY STRAIGHT LINE TO 2592751 104785
BY ARC CENTERED AT 2608665 95870
TO 2593838 106495
BY STRAIGHT LINE TO 2595167 108350
BY STRAIGHT LINE TO 2596041 109955
BY ARC CENTERED AT 2614270 110615
TO 2597233 117130
BY STRAIGHT LINE TO 2597210 155899
BY ARC CENTERED AT 2614790 160765
TO 2596949 156969
BY STRAIGHT LINE TO 2596342 158695
BY ARC CENTERED AT 2613550 164745
TO 2595312 165072
BY STRAIGHT LINE TO 2595316 165282
BY ARC CENTERED AT 2607710 178665
TO 2594008 166625
BY STRAIGHT LINE TO 2592668 168150
BY ARC CENTERED AT 2606370 180190
TO 2590016 172111
BY STRAIGHT LINE TO 2588771 174631
BY ARC CENTERED AT 2605125 182710
TO 2587979 176487
BY ARC CENTERED AT 2604220 184790
TO 2587325 177913
BY STRAIGHT LINE TO 2586460 180038
BY ARC CENTERED AT 2603355 186915
TO 2585856 181767
BY ARC CENTERED AT 2602425 189395
TO 2585513 182560
BY STRAIGHT LINE TO 2585309 183065
BY STRAIGHT LINE TO 2585048 183583
BY STRAIGHT LINE TO 2584220 184785
BY STRAIGHT LINE TO 2581909 187130
BY ARC CENTERED AT 2594900 199935
TO 2581526 187531
Final Decree
X Y
BY ARC CENTERED AT 2589100 204125
TO 2579034 188914
BY STRAIGHT LINE TO 2577635 189839
BY ARC CENTERED AT 2583790 207010
TO 2576863 190136
BY STRAIGHT LINE TO 2572518 191920
BY ARC CENTERED AT 2576174 209790
TO 2567200 193910
BY ARC CENTERED AT 2574890 210450
TO 2566472 194268
BY STRAIGHT LINE TO 2564469 194807
BY ARC CENTERED AT 2565940 212988
TO 2559750 195830
BY STRAIGHT LINE TO 2559112 196060
BY ARC CENTERED AT 2562149 214046
TO 2557272 196470
BY STRAIGHT LINE TO 2557019 196540
BY STRAIGHT LINE TO 2552324 197553
BY ARC CENTERED AT 2556172 215383
TO 2551363 197788
BY STRAIGHT LINE TO 2414967 172673
BY STRAIGHT LINE TO 2410270 168699
BY STRAIGHT LINE TO 2406006 164749
BY ARC CENTERED AT 2393610 178130
TO 240972 163860
BY STRAIGHT LINE TO 2397195 157668
BY ARC CENTERED AT 2385833 171938
TO 2396858 157406
BY STRAIGHT LINE TO 2392712 154261
BY STRAIGHT LINE TO 2389824 151968
BY ARC CENTERED AT 2376485 164409
TO 2387438 149823
BY STRAIGHT LINE TO 2385828 148614
BY ARC CENTERED AT 2374875 163200
TO 2382739 146742
BY STRAIGHT LINE TO 2382463 146610
BY STRAIGHT LINE TO 2379481 144718
BY ARC CENTERED AT 2369709 160120
TO 2378913 144372
Final Decree
X Y
BY STRAIGHT LINE TO 2376899 143195
BY ARC CENTERED AT 2367695 158943
TO 2374967 142215
BY STRAIGHT LINE TO 2373712 141669
BY ARC CENTERED AT 2364392 157349
TO 2367743 139419
BY STRAIGHT LINE TO 2365248 138185
BY ARC CENTERED AT 2354070 152599
TO 2349744 134879
BY STRAIGHT LINE TO 2348372 134394
BY STRAIGHT LINE TO 2346096 133534
BY ARC CENTERED AT 2339651 150598
TO 2344530 133022
BY STRAIGHT LINE TO 2342882 132565
BY STRAIGHT LINE TO 2341883 132218
BY STRAIGHT LINE TO 2334775 129342
BY ARC CENTERED AT 2327933 146251
TO 2333794 128978
BY STRAIGHT LINE TO 2328327 127123
BY ARC CENTERED AT 2322466 144396
TO 2326959 126717
BY STRAIGHT LINE TO 2326906 126704
BY ARC CENTERED AT 2319608 143421
TO 2324588 125873
BY STRAIGHT LINE TO 2322643 125321
BY ARC CENTERED AT 2317663 142869
TO 2322368 125246
BY STRAIGHT LINE TO 2318607 124242
BY ARC CENTERED AT 2313902 141865
TO 2314460 123633
BY STRAIGHT LINE TO 2312762 123581
BY ARC CENTERED AT 2312204 141813
TO 2311215 123599
BY STRAIGHT LINE TO 2309557 123689
BY ARC CENTERED AT 2310546 141903
TO 2308711 123755
BY ARC CENTERED AT 2300326 139954
TO 2308388 123592
BY STRAIGHT LINE LINE TO 2306600 122711
Final Decree
X Y
BY ARC CENTERED AT 2298538 139073
TO 2302489 121265
BY STRAIGHT LINE TO 2299992 120711
BY ARC CENTERED AT 2296041 138519
TO 2295411 120289
BY STRAIGHT LINE TO 2294514 120320
BY ARC CENTERED AT 2295144 138550
TO 2288532 121550
BY STRAIGHT LINE TO 2287771 121846
BY ARC CENTERED AT 2294383 138846
TO 2287412 121990
BY STRAIGHT LINE TO 2284138 122399
BY ARC CENTERED AT 2286402 140499
TO 2283007 122577
BY STRAIGHT LINE TO 2277807 123562
BY ARC CENTERED AT 2281202 141484
TO 2276614 123830
BY STRAIGHT LINE TO 2270161 125507
BY ARC CENTERED AT 2274749 143161
TO 2267618 126372
BY STRAIGHT LINE TO 2263074 128302
BY ARC CENTERED AT 2270205 145091
TO 2262736 128450
BY STRAIGHT LINE TO 2256981 131033
BY ARC CENTERED AT 2264450 147674
TO 2255335 131874
BY STRAIGHT LINE TO 2251881 133867
BY STRAIGHT LINE TO 2250291 134590
BY STRAIGHT LINE TO 2229997 129637
BY STRAIGHT LINE TO 2228299 128761
BY ARC CENTERED AT 2219935 144971
TO 2227466 128358
BY STRAIGHT LINE TO 2225677 127547
BY ARC CENTERED AT 2218146 144160
TO 2222547 126458
BY STRAIGHT LINE TO 2219572 125719
BY STRAIGHT LINE TO 2212203 123742
BY STRAIGHT LINE TO 2203722 121100
BY ARC CENTERED AT 2198296 138515
Final Decree
X Y
TO 2202941 120876
BY STRAIGHT LINE TO 2196975 119305
BY ARC CENTERED AT 2192330 136944
TO 2195302 118947
BY STRAIGHT LINE TO 2189988 118070
BY STRAIGHT LINE TO 2188596 117772
BY ARC CENTERED AT 2184788 135611
TO 2185156 117374
BY ARC CENTERED AT 2182166 135368
TO 2181100 117159
BY STRAIGHT LINE TO 2179579 117248
BY ARC CENTERED AT 2180645 135457
TO 2177979 117412
BY STRAIGHT LINE TO 2172700 117308
BY STRAIGHT LINE TO 2171638 117082
BY ARC CENTERED AT 2167836 134922
TO 2168753 116704
BY STRAIGHT LINE TO 2165394 116535
BY ARC CENTERED AT 2164477 134753
TO 2160352 116985
BY STRAIGHT LINE TO 2156273 117355
BY ARC CENTERED AT 2157920 135521
TO 2154346 117634
BY ARC CENTERED AT 2155349 135847
TO 2149793 118473
BY ARC CENTERED AT 2147751 136599
TO 2149162 118413
BY STRAIGHT LINE TO 2145000 118090
BY ARC CENTERED AT 2143589 136276
TO 2143589 118035
BY STRAIGHT LINE TO 2139529 118035
BY ARC CENTERED AT 2139529 136276
TO 2137975 118102
BY STRAIGHT LINE TO 2136677 118213
BY ARC CENTERED AT 2138231 136387
TO 2134698 118492
BY ARC CENTERED AT 2134210 136726
TO 2130790 118809
BY STRAIGHT LINE TO 2129669 119023
Final Decree
X Y
BY ARC CENTERED AT 2133089 136940
TO 2126158 120067
BY STRAIGHT LINE TO 2122637 121514
BY STRAIGHT LINE TO 2122091 121684
BY STRAIGHT LINE TO 2118740 122394
BY ARC CENTERED AT 2122523 140238
TO 2114776 123724
BY STRAIGHT LINE TO 2111082 125457
BY ARC CENTERED AT 2118829 141971
TO 2108033 127268
BY STRAIGHT LINE TO 2107269 127829
BY ARC CENTERD AT 2118065 142532
TO 2103682 131314
BY STRAIGHT LINE TO 2102934 132273
BY ARC CENTERED AT 2117317 143491
TO 2112203 161000
BY STRAIGHT LINE TO 2112518 161092
BY ARC CENTERED AT 2117632 143583
TO 2119073 161767
BY ARC CENTERED AT 2131078 175500
TO 2117168 163700
BY ARC CENTERED AT 2128430 178049
TO 2116319 164410
BY ARC CENTERED AT 2127239 179020
TO 2116191 164506
BY ARC CENTERED AT 2124878 180545
TO 2114372 165634
BY ARC CENTERED AT 2111697 183677
TO 2110623 165468
BY ARC CENTERED AT 2106412 183216
TO 2102599 165378
BY ARC CENTERED AT 2103313 183605
TO 2095246 167245
BY ARC CENTERED AT 2098954 185105
TO 2095140 167268
BY STRAIGHT LINE TO 2087218 168962
BY ARC CENTERED AT 2086261 187177
TO 2082361 169358
BY STRAIGHT LINE TO 2081470 169553
Final Decree
X Y
BY ARC CENTERED AT 2085370 187372
TO 2076984 171174
BY ARC CENTERED AT 2077417 189409
TO 2071846 172040
BY STRAIGHT LINE TO 2070630 172430
BY ARC CENTERED AT 2076201 189799
TO 2064747 175603
BY STRAIGHT LINE TO 2063841 176334
BY ARC CENTERED AT 2075295 190530
TO 2059951 180668
BY ARC CENTERED AT 2071131 195080
TO 2058843 181599
BY ARC CENTERED AT 2062055 199555
TO 2057134 181991
BY STRAIGHT LINE TO 2053799 182931
BY ARC CENTERED AT 2058700 200495
TO 2053474 183019
BY STRAIGHT LINE TO 2052967 183053
BY STRAIGHT LINE TO 2051871 183006
BY ARC CENTERED AT 2051090 201230
TO 2050845 182991
BY STRAIGHT LINE TO 2048985 183016
BY ARC CENTERED AT 2049230 201255
TO 2048033 183054
BY STRAIGHT LINE TO 2044865 183262
BY STRAIGHT LINE TO 2041482 183446
BY ARC CENTERED AT 2042475 201660
TO 2037473 184119
BY STRAIGHT LINE TO 2033139 185355
BY STRAIGHT LINE TO 2032934 185387
BY ARC CENTERED AT 2035775 203405
TO 2029791 186174
BY STRAIGHT LINE TO 2027401 187004
BY ARC CENTERED AT 2033385 204235
TO 2026834 187211
BY STRAIGHT LINE TO 2023510 188491
BY STRAIGHT LINE TO 2020959 189327
BY ARC CENTERED AT 2026640 206660
TO 2019190 190010
Final Decree
X Y
BY STRAIGHT LINE TO 2016613 191163
BY STRAIGHT LINE TO 2015796 191414
BY ARC CENTERED AT 2021155 208850
TO 2013823 192148
BY STRAIGHT LINE TO 2010121 193773
BY ARC CENTERED AT 2017453 210475
TO 2007660 195086
BY STRAIGHT LINE TO 2006450 195856
BY ARC CENTERED AT 2016243 211245
TO 2002812 198903
BY STRAIGHT LINE TO 2001329 200516
BY STRAIGHT LINE TO 1998627 203119
BY STRAIGHT LINE TO 1996877 204647
BY ARC CENTERED AT 2008873 218388
TO 1994484 207177
BY STRAIGHT LINE TO 1993669 208223
BY ARC CENTERED AT 2008058 219434
TO 1992024 210737
BY STRAIGHT LINE TO 1991724 211291
BY STRAIGHT LINE TO 1991392 211653
BY STRAIGHT LINE TO 1987527 215292
BY ARC CENTERED AT 2000030 228573
TO 1985881 217061
BY STRAIGHT LINE TO 1984419 218858
BY ARC CENTERED AT 1998568 230370
TO 1982726 221329
BY STRAIGHT LINE TO 1981279 223864
BY ARC CENTERED AT 1987818 240892
TO 1975782 227186
BY ARC CENTERED AT 1987371 241272
TO 1972054 231367
BY STRAIGHT LINE TO 1937446 246505
BY ARC CENTERED AT 1933172 264238
TO 1920501 251117
BY ARC CENTERED AT 1924399 268936
TO 1916888 252314
BY ARC CENTERED AT 1914373 270380
TO 1900989 257987
BY ARC CENTERED AT 1896827 275747
Final Decree
X Y
TO 1895100 257588
BY ARC CENTERED AT 1882306 270590
TO 1867537 259884
BY ARC CENTERED AT 1872418 277460
TO 1858534 265630
BY ARC CENTERED AT 1843467 275912
TO 1848729 258447
BY ARC CENTERED AT 1835344 270839
TO 1841538 253682
BY ARC CENTERED AT 1834019 270301
TO 1817077 263541
BY ARC CENTERED AT 1833527 271423
TO 1815531 274401
BY ARC CENTERED AT 1820994 291804
TO 1808997 278064
BY ARC CENTERED AT 1809845 296285
TO 1792971 289357
BY ARC CENTERED AT 1791584 307545
TO 1773422 305849
BY ARC CENTERED AT 1783067 321331
TO 1771284 307407
BY ARC CENTERED AT 1782391 321876
TO 1769317 309156
BY ARC CENTERED AT 1778769 324757
TO 1763172 315299
BY ARC CENTERED AT 1763190 333540
TO 1762008 315338
BY STRAIGHT LINE TO 1761238 315388
BY ARC CENTERED AT 1762420 333590
TO 1761004 315404
BY ARC CENTERED AT 1758630 333490
TO 1751585 316665
BY STRAIGHT LINE TO 1749527 316597
BY STRAIGHT LINE TO 1745678 316238
BY STRAIGHT LINE TO 1741757 315745
BY STRAIGHT LINE TO 1738098 314155
BY ARC CENTERED AT 1730831 330886
TO 1737269 313819
BY STRAIGHT LINE TO 1733962 312572
Final Decree
X Y
BY STRAIGHT LINE TO 1733065 312110
BY ARC CENTERED AT 1724713 328326
TO 1729983 310863
BY STRAIGHT LINE TO 1729557 310735
BY STRAIGHT LINE TO 1727510 309315
BY ARC CENTERED AT 1717114 324303
TO 1726647 308752
BY STRAIGHT LINE TO 1721463 305574
BY STRAIGHT LINE TO 1721351 305467
BY ARC CENTERED AT 1708756 318661
TO 1715565 301739
BY STRAIGHT LINE TO 1713599 300948
BY ARC CENTERED AT 1706790 317870
TO 1711471 300240
BY STRAIGHT LINE TO 1707761 299255
BY ARC CENTERED AT 1703080 316885
TO 1706765 299020
BY STRAIGHT LINE TO 1704365 298525
BY ARC CENTERED AT 1700680 316390
TO 1702465 298237
BY STRAIGHT LINE TO 1698144 297812
BY ARC CENTERED AT 1696359 315965
TO 1696239 297725
BY STRAIGHT LINE TO 1692448 297750
BY ARC CENTERED AT 1692568 315990
TO 1691302 297793
BY STRAIGHT LINE TO 1688714 297973
BY ARC CENTERED AT 1689980 316170
TO 1687709 298071
BY STRAIGHT LINE TO 1684999 298411
BY ARC CENTERED AT 1687270 316510
TO 1683393 298686
BY STRAIGHT LINE TO 1674668 300584
BY ARC CENTERED AT 1678545 318408
TO 1674182 300697
BY STRIAGHT LINE TO 1670983 301485
BY ARC CENTERED AT 1675346 319196
TO 1670472 301619
BY STRAIGHT LINE TO 1666144 302819
Final Decree
X Y
BY ARC CENTERED AT 1671018 320396
TO 1665216 303103
BY STRAIGHT LINE TO 1663698 303612
BY STRAIGHT LINE TO 1662427 303960
BY STRAIGHT LINE TO 1661678 304151
BY STRAIGHT LINE TO 1659494 304616
BY ARC CENTERED AT 1663290 322457
TO 1659476 304620
BY STRAIGHT LINE TO 1658120 304910
BY ARC CENTERED AT 1658887 323134
TO 1656354 305070
BY ARC CENTERED AT 1655896 323305
TO 1652650 305356
BY STRAIGHT LINE TO 1650184 305802
BY ARC CENTERED AT 1653430 323751
TO 1648635 306152
BY STRAIGHT LINE TO 1647051 306584
BY ARC CENTERED AT 1649308 324684
TO 1643681 307333
BY STRAIGHT LINE TO 1636292 308607
BY STRAIGHT LINE TO 1627130 309897
BY STRAIGHT LINE TO 1620757 310390
BY ARC CENTERED AT 1622420 328555
TO 1619895 310490
BY STRAIGHT LINE TO 1614565 311235
BY ARC CENTERED AT 1617090 329300
TO 1613148 311491
BY STRAIGHT LINE TO 1611814 311591
BY ARC CENTERED AT 1613190 329780
TO 1609960 311828
BY STRAIGHT LINE TO 1606070 312528
BY ARC CENTERED AT 1609300 330480
TO 1604702 312829
BY STRAIGHT LINE TO 1604290 312866
BY ARC CENTERED AT 1605965 331030
TO 1601325 313389
BY STRAIGHT LINE TO 1601195 313403
BY ARC CENTERED AT 1603140 331540
TO 1598672 313855
Final Decree
X Y
BY STRAIGHT LINE TO 1596370 314437
BY STRAIGHT LINE TO 1596179 314483
BY STRAIGHT LINE TO 1592424 315063
BY ARC CENTERED AT 1595210 333090
TO 1591479 315235
BY ARC CENTERED AT 1594075 333290
TO 1589694 315583
BY ARC CENTERED AT 1593010 333520
TO 1589433 315634
BY STRAIGHT LINE TO 1588108 315899
BY ARC CENTERED AT 1591685 333785
TO 1585928 316477
BY STRAIGHT LINE TO 1584286 317023
BY STRAIGHT LINE TO 1582201 317563
BY ARC CENTERED AT 1586780 335220
TO 1581596 317732
BY STRAIGHT LINE TO 1576266 319312
BY ARC CENTERED AT 1581450 336800
TO 1575360 319606
BY STRIAGHT LINE TO 1570080 321476
BY ARC CENTERED AT 1576170 338670
TO 1569889 321545
BY STRAIGHT LINE TO 1565349 323210
BY ARC CENTERED AT 1571630 340335
TO 1563529 323992
BY STRAIGHT LINE TO 1563104 324202
BY STRAIGHT LINE TO 1561073 324994
BY ARC CENTERED AT 1567695 341990
TO 1558882 326020
BY STRAIGHT LINE TO 1558879 326021
BY ARC CENTERED AT 1564160 343480
TO 1556225 327056
BY STRAIGHT LINE TO 1556066 327133
BY STRAIGHT LINE TO 1553511 327894
BY ARC CENTERED AT 1558720 345375
TO 1551769 328511
BY STRAIGHT LINE TO 1549575 329415
BY ARC CENTERED AT 1553840 347150
TO 1546081 330642
Final Decree
X Y
BY STRAIGHT LINE TO 1543911 331662
BY ARC CENTERED AT 1551670 348170
TO 1541402 333094
BY STRAIGHT LINE TO 1540011 333646
BY ARC CENTERED AT 1546740 350600
TO 1537927 334630
BY STRAIGHT LINE TO 1531757 337418
BY ARC CENTERED AT 1539270 354040
TO 1530263 338178
BY STRAIGHT LINE TO 1527489 339748
BY ARC CENTERED AT 1536505 355610
TO 1526511 340351
BY STRAIGHT LINE TO 1526495 340356
BY ARC CENTERED AT 1532515 357575
TO 1523959 341466
BY ARC CENTERED AT 1531240 358190
TO 1522813 342013
BY STRAIGHT LINE TO 1516478 345313
BY STRAIGHT LINE TO 1505572 350398
BY ARC CENTERED AT 1513280 366930
TO 1504778 350792
BY STRAIGHT LINE TO 1493968 356487
BY ARC CENTERED AT 1502470 372625
TO 1493740 356609
BY STRAIGHT LINE TO 1488240 359607
BY STRAIGHT LINE TO 1483855 361809
BY ARC CENTERED AT 1492040 378110
TO 1483320 362089
BY STRAIGHT LINE TO 1481464 363099
BY STRAIGHT LINE TO 1472522 367321
BY STRAIGHT LINE TO 1464632 370389
BY ARC CENTERED AT 1471240 387390
TO 1464433 370467
BY STRAIGHT LINE TO 1461367 371700
BY STRAIGHT LINE TO 1455041 373829
BY STRAIGHT LINE TO 1449142 375498
BY ARC CENTERED AT 1454105 393050
TO 1447394 376089
BY STRAIGHT LINE TO 1443224 377739
Final Decree
X Y
BY ARC CENTERED AT 1449935 394700
TO 1442769 377926
BY STRAIGHT LINE TO 1437906 380003
BY STRAIGHT LINE TO 1435142 381048
BY STRAIGHT LINE TO 1431147 382502
BY ARC CENTERED AT 1431465 400740
TO 1426148 383291
BY STRAIGHT LINE TO 1423703 384036
BY ARC CENTERED AT 1429020 401485
TO 1421665 384793
BY STRAIGHT LINE TO 1421218 384903
BY ARC CENTERED AT 1425600 402610
TO 1417428 386302
BY STRAIGHT LINE TO 1411695 388054
BY STRAIGHT LINE TO 1406675 389181
BY STRAIGHT LINE TO 1400158 390267
BY STRAIGHT LINE TO 1395815 390681
BY STRAIGHT LINE TO 1390919 390971
BY ARC CENTERED AT 1392000 409180
TO 1390575 390995
BY STRAIGHT LINE TO 1386958 390977
BY STRAIGHT LINE TO 1385797 390942
BY STRAIGHT LINE TO 1383281 390516
BY ARC CENTERED AT 1380235 408500
TO 1382827 390444
BY STRAIGHT LINE TO 1380530 390115
BY STRAIGHT LINE TO 1379793 389887
BY ARC CENTERED AT 1363392 397870
TO 1364288 379651
BY STRAIGHT LINE TO 1363312 379603
BY ARC CENTERED AT 1362416 397822
TO 1348021 386619
BY STRAIGHT LINE TO 1347740 386685
BY STRAIGHT LINE TO 1339580 387874
BY STRAIGHT LINE TO 1332310 388694
BY STRAIGHT LINE TO 1328041 388886
BY STRAIGHT LINE TO 1323345 388897
BY STRAIGHT LINE TO 1318623 388814
BY STRAIGHT LINE TO 1313961 388548
Final Decree
X Y
BY STRAIGHT LINE TO 1309176 388114
BY STRAIGHT LINE TO 1299212 386972
BY STRAIGHT LINE TO 1294264 386189
BY ARC CENTERED AT 1291413 404205
TO 1293948 386141
BY STRAIGHT LINE TO 1288689 385403
BY ARC CENTERED AT 1286154 403467
TO 1288273 385350
BY STRAIGHT LINE TO 1282879 384719
BY ARC CENTERED AT 1280760 402836
TO 1282343 384664
BY STRAIGHT LINE TO 1277050 384203
BY ARC CENTERED AT 1275467 402375
TO 1276974 384197
BY STRAIGHT LINE TO 1266567 383334
BY STRAIGHT LINE TO 1261754 382855
BY STRAIGHT LINE TO 1256845 382176
BY STRAIGHT LINE TO 1252082 381444
BY STRAIGHT LINE TO 1247120 380489
BY ARC CENTERED AT 1243670 398400
TO 1246626 380401
BY STRAIGHT LINE TO 1243866 379947
BY STRAIGHT LINE TO 1240511 379144
BY STRAIGHT LINE TO 1238894 378640
BY STRAIGHT LINE TO 1234692 377218
BY ARC CENTERED AT 1228846 394497
TO 1233981 376994
BY ARC CENTERED AT 1225768 393281
TO 1230677 375713
BY STRAIGHT LINE TO 1229077 374980
BY ARC CENTERED AT 1219065 390227
TO 1227371 373987
BY STRAIGHT LINE TO 1226185 373381
BY STRAIGHT LINE TO 1227214 367277
BY ARC CENTERED AT 1209227 364245
TO 1214918 346915
BY STRAIGHT LINE TO 1213304 346385
52
BY STRAIGHT LINE TO 1212404.23 346089.54
53
SAID POINT BEING ON THE TEXAS-LOUISIANA BOUNDARY
Final Decree
EXHIBIT B
54
From January, 1961 to December 6, 1969, the three-mile projection line in East Bay vicinity from base line point X = 2,702,461; Y = 124,148 to a base line point X = 2,641,835; Y = 129,725 deviates from the present three-mile projection and may be described as follows:
X Y
55
By arc centered at 2702461 124148
56
To 2717902 114437
57
By arc centered at 2699815 116800
58
To 2711432 102737
59
By arc centered at 2699695 116700
60
To 2694008 99369
61
By arc centered at 2697850 117200
62
To 2683320 106173
63
By straight line to 2682980 106621
64
By arc centered at 2697510 117648
65
To 2679799 113283
66
By straight line to 2679589 114135
67
By an arc centered at 2697300 118500
68
To 2679559 114260
69
By an arc centered at 2685250 131590
70
To 2677482 115086
71
By an arc centered at 2684417 131957
72
To 2673065 117679
73
By an arc centered at 2683850 132390
74
To 2672411 118182
75
By an arc centered at 2682580 133325
76
To 2671159 119102
77
By straight line to 2655458 117595
78
By arc centered at 2641835 129725
79
Prior to January, 1961, the three-mile projection line in East Bay vicinity from base line point X = 2,702,461; Y = 124,148 to base line point X = 2,641,835; Y = 129,725 deviates from
Final Decree
80
the present three-mile projection and may be described as follows:
X Y
81
By arc centered at 2702461 124148
82
To 2716719 112772
83
By arc centered at 2699435 118600
84
To 2710698 104252
85
By arc centered at 2697850 117200
86
To 2683320 106173
87
By straight line to 2682980 106621
88
By arc centered at 2697510 117648
89
To 2679799 113283
90
By straight line to 2679589 114135
91
By an arc centered at 2697300 118500
92
To 2679559 114260
93
By an arc centered at 2685250 131590
94
To 2677482 115086
95
By an arc centered at 2684417 131957
96
To 2673065 117679
97
By an arc centered at 2683850 132390
98
To 2672411 118182
99
By an arc centered at 2682580 133325
100
To 2671159 119102
101
By straight line to 2655458 117595
102
By arc centered at 2641835 129725
103
Prior to December 6, 1969 the three-mile projection in the Pass du Bois vicinity from base line point X = 2,614,270; Y = 110,615 to base line point X = 2,608,270; Y = 178,325 deviates from the present three-mile projection and may be described as follows:
X Y
104
By arc centered at 2614270 110615
105
To 2597233 117130
106
By straight line to 2597212 152789
107
By arc centered at 2612771 162310
108
To 2595307 157043
Final Decree
X Y
109
By arc centered at 2612120 164118
110
To 2594046 166581
111
By arc centered at 2608270 178325
112
From November 19, 1959 to February 1, 1960 the three-mile projection in the Pass Tante Phine vicinity from base line point X = 2,606,370; Y = 180,190 to base line point X = 2,598,335; Y = 196,450 deviates from the present three-mile projection and may be described as follows:
X Y
113
By arc centered at 2606370 180190
114
To 2593225 167544
115
By arc centered at 2602000 183535
116
To 2583851 185362
117
By arc centered at 2598335 196450
118
From January 1, 1959 through March 31, 1959 and from March 1, 1964 through July 31, 1964 the three-mile projection north of Pass Tante Phine from base line point X = 2,605,125; Y = 182,710 to base line point X = 2,600,780; Y = 192,900 deviates from the present three-mile projection and may be described as follows:
X Y
119
By arc centered at 2605125 182710
120
To 2588206 175894
121
By arc centered at 2602763 186885
122
To 2584711 184268
123
By arc centered at 2600780 192900
124
Justice MARSHALL took no part in the consideration or decision of this matter.
| 910
|
452 U.S. 713
101 S.Ct. 3132
69 L.Ed.2d 367
Henry KISSINGER et al., petitioners,v.Morton HALPERIN et al
No. 79-880
Supreme Court of the United States
June 22, 1981
Rehearing Denied Aug. 28, 1981.
See 453 U.S. 928, 102 S.Ct. 892.
On writ of certiorari to the United States Court of Appeals for the District of Columbia Circuit.
PER CURIAM.
1
The judgment with respect to petitioners Kissinger, Nixon, and Mitchell is affirmed by an equally divided Court. With respect to petitioner Haldeman, the writ of certiorari is dismissed as improvidently granted.
2
Justice REHNQUIST took no part in the consideration or decision of this case.
| 89
|
452 U.S. 692
101 S.Ct. 2587
69 L.Ed.2d 340
State of MICHIGAN, Petitioner,v.George SUMMERS.
No. 79-1794.
Argued Feb. 25, 1981.
Decided June 22, 1981.
Syllabus
When police officers executing a warrant to search a house for narcotics encountered respondent descending the front steps, they requested his assistance in gaining entry and detained him while they searched the premises. After finding narcotics and ascertaining that respondent owned the house, the police arrested him, searched his person, and found heroin in his coat pocket. Respondent, who was charged with possession of the heroin found on his person, moved to suppress the heroin as the product of an illegal search in violation of the Fourth Amendment. The trial judge granted the motion and quashed the information, and both the Michigan Court of Appeals and the Michigan Supreme Court affirmed.
Held : The initial detention of respondent, which constituted a "seizure" and was assumed to be unsupported by probable cause, did not violate his constitutional right to be secure against an unreasonable seizure of his person. For Fourth Amendment purposes, a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted. Because it was lawful to require respondent to re-enter and to remain in the house until evidence establishing probable cause to arrest him was found, his arrest and the search incident thereto were constitutionally permissible. Pp. 694-705.
407 Mich. 432, 286 N.W.2d 226, reversed.
Timothy A. Baughman, Detroit, Mich., for petitioner.
Elliott Schulder, Washington, D. C., for the U. S., as amicus curiae, by special leave of Court.
Gerald M. Lorence, Detroit, Mich., for respondent.
Bruce J. Ennis, Jr., New York City, for the American Civil Liberties Union, as amicus curiae, by special leave of Court.
Justice STEVENS delivered the opinion of the Court.
1
As Detroit police officers were about to execute a warrant to search a house for narcotics, they encountered respondent descending the front steps. They requested his assistance in gaining entry and detained him while they searched the premises. After finding narcotics in the basement and ascertaining that respondent owned the house, the police arrested him, searched his person, and found in his coat pocket an envelope containing 8.5 grams of heroin.1
2
Respondent was charged with possession of the heroin found on his person. He moved to suppress the heroin as the product of an illegal search in violation of the Fourth Amendment,2 and the trial judge granted the motion and quashed the information. That order was affirmed by a divided panel of the Michigan Court of Appeals, 68 Mich.App. 571, 243 N.W.2d 689, and by the Michigan Supreme Court over the dissent of three of its justices. 407 Mich. 432, 286 N.W.2d 226. We granted the State's petition for certiorari, 449 U.S. 898, 101 S.Ct. 265, 66 L.Ed.2d 127, and now reverse.
3
* The dispositive question in this case is whether the initial detention of respondent violated his constitutional right to be secure against an unreasonable seizure of his person. The State attempts to justify the eventual search of respondent's person by arguing that the authority to search premises granted by the warrant implicitly included the authority to search persons on those premises, just as that authority included an authorization to search furniture and containers in which the particular things described might be concealed. But as the Michigan Court of Appeals correctly noted, even if otherwise acceptable, this argument could not justify the initial detention of respondent outside the premises described in the warrant. See 68 Mich.App., at 578-580, 243 N.W. 2d, at 692-693. If that detention was permissible, there is no need to reach the question whether a search warrant for premises includes the right to search persons found there, because when the police searched respondent, they had probable cause to arrest him and had done so.3 Our appraisal of the validity of the search of respondent's person therefore depends upon a determination whether the officers had the authority to require him to re-enter the house and to remain there while they conducted their search.4
II
4
In assessing the validity of respondent's initial detention, we note first that it constituted a "seizure" within the meaning of the Fourth Amendment.5 The State does not contend otherwise, and the record demonstrates that respondent was not free to leave the premises while the officers were searching his home. It is also clear that respondent was not formally arrested until after the search was completed. The dispute therefore involves only the constitutionality of a pre-arrest "seizure" which we assume was unsupported by probable cause.
5
In Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824, the Court reaffirmed the general rule that an official seizure of the person must be supported by probable cause, even if no formal arrest is made. In that case police officers located a murder suspect at a neighbor's house, took him into custody, and transported him to the police station, where interrogation ultimately produced a confession. Because the suspect was not arrested until after he had confessed, and because he presumably would have been set free if probable cause had not been established during his questioning, the State argued that the pre-arrest detention should not be equated with an arrest and should be upheld as "reasonable" in view of the serious character of the crime and the fact that the police had an articulable basis for suspecting that Dunaway was involved. Id., at 207, 99 S.Ct., at 2253. The Court firmly rejected the State's argument, noting that "the detention of petitioner was in important respects indistinguishable from a traditional arrest." Id., at 212, 99 S.Ct., at 2256.6 We stated:
6
"Indeed, any 'exception' that could cover a seizure as intrusive as that in this case would threaten to swallow the general rule that Fourth Amendment seizures are 'reasonable' only if based on probable cause.
7
"The central importance of the probable-cause requirement to the protection of a citizen's privacy afforded by the Fourth Amendment's guarantees cannot be compromised in this fashion. 'The requirement of probable cause has roots that are deep in our history.' Henry v. United States, 361 U.S. 98, 100 [80 S.Ct. 168, 170, 4 L.Ed.2d 134] (1959). Hostility to seizures based on mere suspicion was a prime motivation for the adoption of the Fourth Amendment, and decisions immediately after its adoption affirmed that 'common rumor or report, suspicion, or even "strong reason to suspect" was not adequate to support a warrant for arrest.' Id., at 101 [80 S.Ct., at 170] (footnotes omitted). The familiar threshold standard of probable cause for Fourth Amendment seizures reflects the benefit of extensive experience accommodating the factors relevant to the 'reasonableness' requirement of the Fourth Amendment, and provides the relative simplicity and clarity necessary to the implementation of a workable rule. See Brinegar v. United States, [338 U.S., at 175-176, 69 S.Ct., at 1310-1311]." Id., at 213, 99 S.Ct., at 2256.
8
Although we refused in Dunaway to find an exception that would swallow the general rule, our opinion recognized that some seizures significantly less intrusive than an arrest have withstood scrutiny under the reasonableness standard embodied in the Fourth Amendment. In these cases the intrusion on the citizen's privacy "was so much less severe" than that involved in a traditional arrest that "the opposing interests in crime prevention and detection and in the police officer's safety" could support the seizure as reasonable. Id., at 209, 99 S.Ct., at 2254.
9
In the first such case, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, the Court recognized the narrow authority of police officers who suspect criminal activity to make limited intrusions on an individual's personal security based on less than probable cause. The Court approved a "frisk" for weapons as a justifiable response to an officer's reasonable belief that he was dealing with a possibly armed and dangerous suspect.7 In the second such case, Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612, the Court relied on Terry to hold that an officer could forcibly stop a suspect to investigate an informant's tip that the suspect was armed and carrying narcotics.8 And in United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607, the Court held that the special enforcement problems confronted by roving Border Patrol agents, though not sufficient to justify random stops of vehicles near the Mexican border to question their occupants about their citizenship, id., at 882-884, 95 S.Ct., at 2580-2581,9 were adequate to support vehicle stops based on the agents' awareness of specific articulable facts indicating that the vehicle contained illegal aliens. The Court reasoned that the difficulty in patrolling the long Mexican border and the interest in controlling the influx of illegal aliens justified the limited intrusion, usually lasting no more than a minute, involved in the stop. Id., at 878-880, 95 S.Ct., at 2578, 2579.10 See also United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621.
10
These cases recognize that some seizures admittedly covered by the Fourth Amendment constitute such limited intrusions on the personal security of those detained and are justified by such substantial law enforcement interests that they may be made on less than probable cause, so long as police have an articulable basis for suspecting criminal activity. In these cases, as inDunaway, the Court was applying the ultimate standard of reasonableness embodied in the Fourth Amendment.11 They are consistent with the general rule that every arrest, and every seizure having the essential attributes of a formal arrest, is unreasonable unless it is supported by probable cause. But they demonstrate that the exception for limited intrusions that may be justified by special law enforcement interests is not confined to the momentary, on-the-street detention accompanied by a frisk for weapons involved in Terry and Adams.12 Therefore, in order to decide whether this case is controlled by the general rule, it is necessary to examine both the character of the official intrusion and its justification.
III
11
Of prime importance in assessing the intrusion is the fact that the police had obtained a warrant to search respondent's house for contraband. A neutral and detached magistrate had found probable cause to believe that the law was being violated in that house and had authorized a substantial invasion of the privacy of the persons who resided there. The detention of one of the residents while the premises were searched, although admittedly a significant restraint on his liberty, was surely less intrusive than the search itself.13 Indeed, we may safely assume that most citizens—unless they intend flight to avoid arrest—would elect to remain in order to observe the search of their possessions. Furthermore, the type of detention imposed here is not likely to be exploited by the officer or unduly prolonged in order to gain more information, because the information the officers seek normally will be obtained through the search and not through the detention.14 Moreover, because the detention in this case was in respondent's own residence, it could add only minimally to the public stigma associated with the search itself and would involve neither the inconvenience nor the indignity associated with a compelled visit to the police station.15 In sharp contrast to the custodial interrogation in Dunaway, the detention of this respondent was "substantially less intrusive" than an arrest. 442 U.S., at 210, 99 S.Ct., at 2255.16
12
In assessing the justification for the detention of an occupant of premises being searched for contraband pursuant to a valid warrant, both the law enforcement interest and the nature of the "articulable facts" supporting the detention are relevant. Most obvious is the legitimate law enforcement interest in preventing flight in the event that incriminating evidence is found. Less obvious, but sometimes of greater importance, is the interest in minimizing the risk of harm to the officers. Although no special danger to the police is suggested by the evidence in this record, the execution of a warrant to search for narcotics is the kind of transaction that may give rise to sudden violence or frantic efforts to conceal or destroy evidence.17 The risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation. Cf. 2 W. LaFave, Search and Seizure § 4.9, pp. 150-151 (1978). Finally, the orderly completion of the search may be facilitated if the occupants of the premises are present. Their self-interest may induce them to open locked doors or locked containers to avoid the use of force that is not only damaging to property but may also delay the completion of the task at hand.
13
It is also appropriate to consider the nature of the articulable and individualized suspicion on which the police base the detention of the occupant of a home subject to a search warrant. We have already noted that the detention represents only an incremental intrusion on personal liberty when the search of a home has been authorized by a valid warrant. The existence of a search warrant, however, also provides an objective justification for the detention. A judicial officer has determined that police have probable cause to believe that someone in the home is committing a crime. Thus a neutral magistrate rather than an officer in the field has made the critical determination that the police should be given a special authorization to thrust themselves into the privacy of a home.18 The connection of an occupant to that home gives the police officer an easily identifiable and certain basis for determining that suspicion of criminal activity justifies a detention of that occupant.
14
In Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639, we held that police officers may not enter a private residence to make a routine felony arrest without first obtaining a warrant. In that case we rejected the suggestion that only a search warrant could adequately protect the privacy interests at stake, noting that the distinction between a search warrant and an arrest warrant was far less significant than the interposition of the magistrate's determination of probable cause between the zealous officer and the citizen:
15
"It is true that an arrest warrant requirement may afford less protection than a search warrant requirement, but it will suffice to interpose the magistrate's determination of probable cause between the zealous officer and the citizen. If there is sufficient evidence of a citizen's participation in a felony to persuade a judicial officer that his arrest is justified, it is constitutionally reasonable to require him to open his doors to the officers of the law. Thus, for Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within." Id., at 602-603, 100 S.Ct., at 1388.
16
That holding is relevant today. If the evidence that a citizen's residence is harboring contraband is sufficient to persuade a judicial officer that an invasion of the citizen's privacy is justified, it is constitutionally reasonable to require that citizen to remain while officers of the law execute a valid warrant to search his home.19 Thus, for Fourth Amendment purposes, we hold that a warrant to search for contraband20 founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted.21
17
Because it was lawful to require respondent to re-enter and to remain in the house until evidence establishing probable cause to arrest him was found, his arrest and the search incident thereto were constitutionally permissible. The judgment of the Supreme Court of Michigan must therefore be reversed.
18
It is so ordered.
19
Justice STEWART, with whom Justice BRENNAN and Justice MARSHALL join, dissenting.
20
The Court is correct in stating that "some seizures significantly less intrusive than an arrest have withstood scrutiny under the reasonableness standard embodied in the Fourth Amendment." Ante, at 697. But to escalate this statement into some kind of a general rule is to ignore the protections that the Fourth Amendment guarantees to us all. There are only two types of seizures that need not be based on probable cause. The first, represented by the Terry line of cases, is a limited stop to question a person and to perform a pat-down for weapons when the police have reason to believe that he is armed and dangerous. E. g., Terry v. Ohio, 392 U.S. 1, 23-24, 88 S.Ct. 1868, 1881, 20 L.Ed.2d 889. The second is a brief stop of vehicles near our international borders to question occupants of the vehicles about their citizenship. E. g. United States v. Brignoni-Ponce, 422 U.S. 873, 881, 95 S.Ct. 2574, 2580, 45 L.Ed.2d 607.
21
From these two special exceptions to the general prohibition on seizures not based on probable cause, the Court leaps to the very broad idea that courts may approve a wide variety of seizures not based on probable cause, so long as the courts find, after balancing the law enforcement purposes of the police conduct against the severity of their intrusion, that the seizure appears "reasonable." Ante, at 700-701, and nn. 11, 12. But those two lines of cases do not represent some sort of exemplary balancing test for Fourth Amendment cases. Rather, they represent two isolated exceptions to the general rule that the Fourth Amendment itself has already performed the constitutional balance between police objectives and personal privacy. The seizure permitted by the Court today, the detention of a person at his home while the police execute a search warrant for contraband inside it, is categorically different from those two special exceptions to the warrant and probable-cause requirement, and poses a significantly greater threat to the protections guaranteed by the Constitution.
22
* The common denominator of the Terry cases and the border checkpoint cases is the presence of some governmental interest independent of the ordinary interest in investigating crime and apprehending suspects, an interest important enough to overcome the presumptive constitutional restraints on police conduct. At issue in Terry was "more than the governmental interest in investigating crime; in addition, there is the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him." Terry v. Ohio, 392 U.S., at 23, 88 S.Ct., at 1881. Though the officer in Terry was engaged in investigating crime, the governmental purpose that justified the stop and patdown was not the investigation itself, but "the neutralization of danger to the policeman in the investigative circumstance." Id., at 26, 88 S.Ct., at 1882. Stating its essential holding, the Court said: "When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm." Id., at 24, 88 S.Ct., at 1881.
23
Similarly, in Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612, the officer had received an informant's tip, not amounting to probable cause, that Williams was carrying narcotics and a gun. The Court held that the officer acted legally in reaching into the car and intruding on Williams' person to see if Williams indeed was in possession of a lethal weapon. In so holding, the Court made clear that what justified this intrusion on Williams' person was not the possibility of finding contraband narcotics, but rather the officer's need to protect himself from harm by seizing the suspected gun: "The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence . . . ." Id., at 146, 92 S.Ct., at 1923, accord, Pennsylvania v. Mimms, 434 U.S. 106, 110, 98 S.Ct. 330, 333, 54 L.Ed.2d 331. See Ybarra v. Illinois, 444 U.S. 85, 93, 100 S.Ct. 338, 343, 62 L.Ed.2d 238.
24
In United States v. Brignoni-Ponce, supra, the Court approved a limited stop of vehicles by patrols of immigration officers near the Mexican border, but in doing so it stressed the unique governmental interest in preventing the illegal entry of aliens. The Court held that brief stops and inquiries based on less than probable cause to search or arrest were necessary because the entry of undocumented aliens creates "significant economic and social problems, competing with citizens and legal resident aliens for jobs, and generating extra demand for social services." 422 U.S., at 878-879, 95 S.Ct., at 2579. And in United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116, upholding similarly brief stops and inquiries at permanent checkpoints, the Court relied on the unique difficulty of patrolling a 2,000-mile long and virtually uninhabited border area, a difficulty that would prove insuperable if the Government could stop a vehicle only on the basis of probable cause to believe that that particular vehicle contained illegal entrants. Id., at 552, 96 S.Ct., at 3080.
25
It seems clear, therefore, that before a court can uphold a detention on less than probable cause on the ground that it is "reasonable" in the light of the competing interests, the government must demonstrate an important purpose beyond the normal goals of criminal investigation, or must demonstrate an extraordinary obstacle to such investigation.
II
26
What the Court approves today is justified by no such special governmental interest or law enforcement need. There were only two governmental purposes supporting the detention of the respondent.1 One was "the legitimate law enforcement interest in preventing flight in the event that incriminating evidence is found." Ante, at 702. The other was that "the orderly completion of the search may be facilitated if the occupants of the premises are present." Ante, at 703. Unlike the law enforcement objectives that justified the police conduct in Terry and the border stop cases, these objectives represented nothing more than the ordinary police interest in discovering evidence of crime and apprehending wrongdoers. And the Fourth and Fourteenth Amendments impose significant restraints upon these traditional police activities, even though the police and the courts may find those restraints unreasonably inconvenient.
27
If the police, acting without probable cause, can seize a person to make him available for arrest in case probable cause is later developed to arrest him, the requirement of probable cause for arrest has been turned upside down. And if the police may seize a person without probable cause in order to "facilitate" the execution of a warrant that did not authorize his arrest, the fundamental principle that the scope of a search and seizure can be justified only by the scope of the underlying warrant has suffered serious damage. There is no authority in this Court for the principle that the police can engage in searches and seizures without probable cause simply because to do so enhances their ability to conduct investigations which may eventually lead to probable cause. See Davis v. Mississippi, 394 U.S. 721, 726-727, 89 S.Ct. 1394, 1397, 22 L.Ed.2d 676.2
28
Beyond the issue of the governmental interest justifying the detention, I question the Court's view that the detention here is of the limited, unintrusive sort that permits the Court to engage in a "reasonableness" balancing test. As the Court said in Dunaway v. New York, 442 U.S. 200, 210, 99 S.Ct. 2248, 2255, 60 L.Ed.2d 824, Terry v. Ohio "defined a special category of Fourth Amendment 'seizures' so substantially less intrusive than arrests that the general rule requiring probable cause to make Fourth Amendment 'seizures' reasonable could be replaced by a balancing test." (Emphasis added.) As we then noted in Dunaway, the patdown searches in Terry, Adams, and Mimms were declared legal because they were extremely limited in time and in the degree of personal intrusion. 442 U.S., at 210-211, 99 S.Ct., at 2255-2256. The Court also noted that in the border cases, the stops normally consumed less than a minute and involved no more than brief interrogation. Id., at 211, 99 S.Ct., at 2256. Thus, in the rare cases in which the Court has permitted an independent balancing of interests, the police intrusion has been extremely narrow. Moreover, the Court has required that the stop and inquiry or search be "reasonably related in scope to the justification for their initiation," Terry v. Ohio, 392 U.S., at 29, 88 S.Ct., at 1884, see United States v. Brignoni-Ponce, 422 U.S., at 881, 95 S.Ct., at 2580, and, under that requirement, the unusual governmental or law enforcement interests justifying the patdown stops and border stops have provided a limiting principle ensuring the narrowness of the police action. The detention approved by the Court today, however, is of a very different order.
29
The explicit holding of the Court is that "a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted." Ante, at 705 (footnotes omitted). Though on superficial reading, this language may suggest a minor intrusion of brief duration, a detention "while a proper search is being conducted" can mean a detention of several hours.3 The police thereby make the person a prisoner in his own home for a potentially very long period of time.4 Moreover, because of the questionable nature of the governmental interest asserted by the State and acknowledged by the Court in this case, the requirement that the scope of the intrusion be reasonably related to its justification does not provide a limiting principle for circumscribing the detention. If the purpose of the detention is to help the police make the search, the detention can be as long as the police find it necessary to protract the search.5
30
In Dunaway, the Court reaffirmed that the " 'long-prevailing standards' of probable cause embodied 'the best compromise that has been found for accommodating [the] often opposing interests' in 'safeguard[ing] citizens from rash and unreasonable interferences with privacy' and in 'seek[ing] to give fair leeway for enforcing the law in the community's protection.' " 442 U.S., at 208, 99 S.Ct., at 2254, quoting Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879. Because the present case presents no occasion for departing from this principle, I respectfully dissent.
1
The execution of the warrant is described in greater detail in Justice Moody's opinion for the Michigan Supreme Court:
"Upon arriving at the named address, Officer Roger Lehman saw the defendant go out the front door of the house and proceed across the porch and down the steps. When defendant was asked to open the door he replied that he could not because he left his keys inside, but he could ring someone over the intercom. Dwight Calhoun came to the door, but did not admit the police officers. As a result, the officers obtained entrance to the premises by forcing open the front door. Once admittance had been gained Officer Lehman instructed Officer Conant, previously stationed along the side of the house, to bring the defendant, still on the porch, into the house.
"After the eight occupants of the house were detained, a search of the premises revealed two plastic bags of suspected narcotics under the bar in the basement. After finding the suspected narcotics in the basement and upon determining that the defendant was the owner of the house, Officer Conant formally arrested the defendant for violation of the Controlled Substances Act of 1971. M.C.L. § 335.341(4)(a); M.S.A. § 18.1070(41)(4)(a). A custodial search conducted by Officer Conant revealed a plastic bag containing suspected heroin in the defendant's jacket pocket. It is this heroin, discovered on the person of the defendant, that forms the basis of the instant possession charge." 407 Mich. 432, 441, 286 N.W.2d 226, 226-227.
2
The Fourth Amendment to the United States Constitution provides:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
The Fourteenth Amendment requires the several States to secure these rights. See Payton v. New York, 445 U.S. 573, 576, 100 S.Ct. 1371, 1374, 63 L.Ed.2d 639; Dunaway v. New York, 442 U.S. 200, 207, 99 S.Ct. 2248, 2253, 60 L.Ed.2d 824.
3
Because there were several other occupants of the house, under Michigan law the evidence that narcotics had been found in the basement of respondent's house would apparently be insufficient to support a conviction. See People v. Davenport, 39 Mich.App. 252, 197 N.W.2d 521 (1972). The Michigan Court of Appeals relied on Davenport to conclude that the officers did not have probable cause to arrest or search respondent even though he was the owner of a house in which contraband was found. 68 Mich.App., at 580-582, 243 N.W.2d, at 692-693. Judge Bashara, dissenting in the Court of Appeals, id., at 585, 243 N.W.2d, at 695, and the three dissenting justices of the Michigan Supreme court, 407 Mich., at 450, 463-464, 286 N.W.2d, at 231, 237, pointed out that Davenport, which concerns the proof necessary to support a conviction, is not dispositive of the question whether the police had probable cause to arrest. See Brinegar v. United States, 338 U.S. 160, 174-176, 69 S.Ct. 1302, 1310-1311, 93 L.Ed. 1879. Regardless of whether the police had probable cause to arrest respondent under Michigan law, probable cause within the meaning of the Fourth Amendment is not at issue here. Respondent does not challenge the conclusion that the evidence found in his home established probable cause to arrest him. See Brief for Respondent 17.
4
The "seizure" issue in this case should not be confused with the "search" issue presented in Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238. In Ybarra the police executing a search warrant for a public tavern detained and searched all of the customers who happened to be present. No question concerning the legitimacy of the detention was raised. Rather, the Court concluded that the search of Ybarra was invalid because the police had no reason to believe he had any special connection with the premises, and the police had no other basis for suspecting that he was armed or in possession of contraband. See id., at 90-93, 100 S.Ct., at 341-343. In this case, only the detention is at issue. The police knew respondent lived in the house, and they did not search him until after they had probable cause to arrest and had done so.
5
"It is quite plain that the Fourth Amendment governs 'seizures' of the person which do not eventuate in a trip to the station house and prosecution for crime—'arrests' in traditional terminology. It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person." Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889.
6
The Court noted that Dunaway was "taken from a neighbor's home to a police car, transported to a police station, and placed in an interrogation room." He was not informed that he was free to leave; he would not have been free to leave and would have been physically restrained had he attempted to do so. 442 U.S., at 212, 99 S.Ct., at 2256.
7
In upholding the "frisk" employed by the officer in that case, the Court assumed, without explicitly stating, that the Fourth Amendment does not prohibit forcible stops when the officer has a reasonable suspicion that a crime has been or is being committed. See 392 U.S., at 32-33, 88 S.Ct., at 1885-1886 (HARLAN, J., concurring); id., at 34, 88 S.Ct., at 1886 (WHITE, J., concurring). In Adams v. Williams, 407 U.S., at 146, 92 S.Ct., at 1923, the Court made explicit what was implicit in Terry:
"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."
See also United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607; United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621.
8
The Court noted that the informant's tip was insufficient to justify an arrest or search based on probable cause under Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, and Aquilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, but the information "carried enough indicia of reliability to justify the officer's forcible stop of Williams." 407 U.S., at 147, 92 S.Ct., at 1924.
9
In several cases, the Court has concluded that the absence of any articulable facts available to the officer rendered a detention unreasonable. In Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660, the Court held that police could not make random stops of vehicles in order to check drivers' licenses and vehicle registrations in the absence of "articulable and reasonable suspicion" that the motorist was unlicensed or the car unregistered. In Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357, we held that a statute requiring individuals to identify themselves was unconstitutional as applied because the police did not have any reasonable suspicion that the petitioner had committed or was committing a crime. Finally, in Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238, we held that police executing a search warrant at a tavern could not invoke Terry to frisk a patron unless the officers had individualized suspicion that the patron might be armed or dangerous.
10
The detention approved in Brignoni-Ponce did not encompass a search of the vehicle. The Court had held in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596, that such a search must be supported by probable cause. In United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116, the Court held that stops at permanent checkpoints involved even less intrusion to a motorist than the detention by the roving patrol, and thus a stop at such a checkpoint need not even be based on any individualized suspicion.
11
In his opinion for the Court in Terry, Chief Justice Warren identified "the central inquiry under the Fourth Amendment" as "the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security." 392 U.S., at 19, 88 S.Ct., at 1878. Before analyzing the specific stop and frisk involved in that case, he stated:
"The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances. And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search 'warrant a man of reasonable caution in the belief' that the action taken was appropriate? Cf. Carroll v. United States, 267 U.S. 132, [45 S.Ct. 280, 69 L.Ed. 543] (1925); Beck v. Ohio, 379 U.S. 89, 96-97, [85 S.Ct. 223, 228, 13 L.Ed.2d 142] (1964)." Id., at 21-22, 88 S.Ct., at 1879-1880 (footnotes omitted).
12
Justice WHITE, concurring in Dunaway, noted that Terry is not "an almost unique exception to a hard-and-fast standard of probable cause." Rather, "the key principle of the Fourth Amendment is reasonableness—the balancing of competing interests." 442 U.S., at 219, 99 S.Ct., at 2260. If the purpose underlying a Terry stop—investigating possible criminal activity—is to be served, the police must under certain circumstances be able to detain the individual for longer than the brief time period involved in Terry and Adams. As one commentator observed:
"It is clear that there are several investigative techniques which may be utilized effectively in the course of a Terry-type stop. The most common is interrogation, which may include both a request for identification and inquiry concerning the suspicious conduct of the person detained. Sometimes the officer will communicate with others, either police or private citizens, in an effort to verify the explanation tendered or to confirm the identification or determine whether a person of that identity is otherwise wanted. Or, the suspect may be detained while it is determined if in fact an offense has occurred in the area, a process which might involve checking certain premises, locating and examining objects abandoned by the suspect, or talking with other people. If it is known that an offense has occurred in the area, the suspect may be viewed by witnesses to the crime. There is no reason to conclude that any investigative methods of the type just listed are inherently objectionable; they might cast doubt upon the reasonableness of the detention, however, if their use makes the period of detention unduly long or involves moving the suspect to another locale." 3 W. LaFave, Search and Seizure § 9.2, pp. 36-37 (1978).
13
"As the Court reiterated just a few years ago, the 'physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.' United States v. United States District Court, 407 U.S. 297, 313, [92 S.Ct. 2125, 2134, 32 L.Ed.2d 752]. And we have long adhered to the view that the warrant procedure minimizes the danger of needless intrusions of that sort." Payton v. New York, 445 U.S., at 585-586, 100 S.Ct., at 1379-1380.
14
Professor LaFave has noted that the reasonableness of a detention may be determined in part by "whether the police are diligently pursuing a means of investigation which is likely to resolve the matter one way or another very soon. . . ." 3 W. LaFave, Search and Seizure § 9.2, p. 40 (1978).
15
Moreover, unlike the seizure in Dunaway, which was designed to provide an opportunity for interrogation and did lead to Dunaway's confession, the seizure in this case is not likely to have coercive aspects likely to induce self-incrimination.
16
We do not view the fact that respondent was leaving his house when the officers arrived to be of constitutional significance. The seizure of respondent on the sidewalk outside was no more intrusive than the detention of those residents of the house whom the police found inside.
17
The fact that our holding today deals with a case in which the police had a warrant does not, of course, preclude the possibility that comparable police conduct may be justified by exigent circumstances in the absence of a warrant. No such question, however, is presented by this case.
18
Justice Jackson recognized the significance of this determination in Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 368-369, 92 L.Ed. 436:
"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." (Footnotes omitted).
19
In refusing to approve seizures based on less than probable cause, the Dunaway Court declined to adopt a "multifactor balancing test of 'reasonable police conduct under the circumstances' to cover all seizures that do not amount to technical arrests." The Court noted:
"[T]he protections intended by the Framers could all too easily disappear in the consideration and balancing of the multifarious circumstances presented by different cases, especially when that balancing may be done in the first instance by police officers engaged in the 'often competitive enterprise of ferreting out crime.' " 442 U.S., at 213, 99 S.Ct., at 2257.
As Justice WHITE noted in his concurrence in Dunaway, if police are to have workable rules, the balancing of the competing interests inherent in the Terry principle "must in large part be done on a categorical basis—not in an ad hoc, case-by-case fashion by individual police officers." 442 U.S., at 219-220, 99 S.Ct., at 2260. The rule we adopt today does not depend upon such an ad hoc determination, because the officer is not required to evaluate either the quantum of proof justifying detention or the extent of the intrusion to be imposed by the seizure.
20
We do not decide whether the same result would be justified if the search warrant merely authorized a search for evidence. Cf. Zurcher v. Stanford Daily, 436 U.S. 547, 560, 98 S.Ct. 1970, 1978, 56 L.Ed.2d 525. See also id., at 581, 98 S.Ct., at 1989 (STEVENS, J., dissenting).
21
Although special circumstances, or possibly a prolonged detention, might lead to a different conclusion in an unusual case, we are persuaded that this routine detention of residents of a house while it was being searched for contraband pursuant to a valid warrant is not such a case.
1
As the Court acknowledges, ante, at 702, the record in this case presents no evidence whatsoever that the police feared any threat to their safety or that of others from the conduct of the respondent, or that they could reasonably have so feared. The Court says that this nevertheless was the "kind of transaction that may give rise to sudden violence . . . ." Ibid. But where the police cannot demonstrate, on the basis of specific and articulable facts, a reasonable belief that a person threatens physical harm to them or others, the speculation that other persons in that circumstance might pose such a threat cannot justify a search or seizure. Ybarra v. Illinois, 444 U.S. 85, 92-93, 100 S.Ct. 338, 342-343, 62 L.Ed.2d 238.
2
In perplexing citation, the Court notes our holding in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639, that an arrest warrant based on probable cause justifies entering a person's home to carry out the arrest, and declares that Payton "is relevant today." Ante, at 704. But I had thought that the very point of the passage of the Court quotes from Payton, is that the police would be justified in arresting a person in his own home because they had a warrant for his arrest based upon probable cause to believe that he had violated the criminal law. Since it is the absence of such probable cause that lies at the heart of this case, I fail to understand Payton's "relevance."
3
The record does not clearly reveal the length of the search in this case. In Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399, a Federal Bureau of Investigation search of a one-bedroom apartment for burglar tools and a pair of checks consumed five hours. See also Stanford v. Texas, 379 U.S. 476, 477, 85 S.Ct. 506, 507, 13 L.Ed.2d 431.
4
I also question the Court's confident assertions about the inoffensive nature of the detention in this case. First, the Court says the detention was innocuous because it was less intrusive than the search that was mandated by the warrant. Ante, at 701. This reasoning is, of course, circular, since the very question of the severity of the detention arises only because it was not based on a warrant or probable cause.
Second, the Court says that the intrusion was not a serious one because a reasonable-minded citizen would in fact want to be present at a search of his house unless he was fleeing to avoid arrest. Ibid. But I must infer that the respondent here did not want to be present in his house during the search, else he would not have brought this claim, and the law cannot penalize him for "fleeing arrest" when the police did not have probable cause to arrest him. This second reason amounts to the view that a person cannot assert his rights under the exclusionary rule if he stands to benefit from the exclusion.
Finally, the Court observes that this sort of detention is not likely to be exploited or unduly prolonged by the police, since the officers are more likely to find the information they seek through the search than through the detention. Ibid. I confess I do not understand this reason. It seems no more than a restatement of the view that the police may detain the person to have him available for arrest when they complete the search, but that view merely begs the question whether the potential duration of the search threatens the person with a lengthy detention.
5
The Court adverts to this problem only by suggesting that "special circumstances, or possibly a prolonged detention, might lead to a different conclusion in an unusual case." Ante, at 705, n. 21. But the Court provides no criteria for identifying "special circumstances" or for determining when a detention is "prolonged"; in particular, it fails to tell law enforcement officers whether a detention will always be permissible, however protracted, so as it does not exceed the length of the search of the house. This ambiguity casts doubt on the Court's assertion, ante, at 705, n. 19, that its holding will not require individual police officers to engage in the sort of on-the-scene, ad hoc legal judgments which pose a serious threat to Fourth and Fourteenth Amendment protections. Dunaway v. New York, 442 U.S. 200, 213, 99 S.Ct. 2248, 2256, 60 L.Ed.2d 824.
| 01
|
452 U.S. 714
101 S.Ct. 2599
69 L.Ed.2d 357
NEW YORK STATE LIQUOR AUTHORITYv.Dennis BELLANCA, dba The Main Event, et al.
No. 80-813.
June 22, 1981.
PER CURIAM.
1
The question presented in this case is the power of a State to prohibit topless dancing in an establishment licensed by the State to serve liquor. In 1977, the State of New York amended its Alcoholic Beverage Control Law to prohibit nude dancing in establishments licensed by the State to sell liquor for on-premises consumption. N.Y.Alco.Bev.Cont.Law, § 106, subd. 6-a (McKinney Supp.1980-1981).1 The statute does not provide for criminal penalties, but its violation may cause an establishment to lose its liquor license.
2
Respondents, owners of nightclubs, bars, and restaurants which had for a number of years offered topless dancing, brought a declaratory judgment action in state court, alleging that the statute violates the First Amendment of the United States Constitution insofar as it prohibits all topless dancing in all licensed premises. The New York Supreme Court, 50 N.Y.2d 524, 429 N.Y.S.2d 616, 407 N.E.2d 460, declared the statute unconstitutional, and the New York Court of Appeals affirmed by a divided vote. 50 N.Y.2d 524, 429 N.Y.S.2d 616, 407 N.E.2d 460. It reasoned that topless dancing was a form of protected expression under the First Amendment and that the State had not demonstrated a need for prohibiting "licensees from presenting nonobscene topless dancing performances to willing customers. . . ." Id., at 529, 429 N.Y.S.2d, at 619, 407 N.E.2d, at 463. The dissent contended that the statute was well within the State's power, conferred by the Twenty-first Amendment, to regulate the sale of liquor within its boundaries.2 We agree with the reasoning of the dissent and now reverse the decision of the New York Court of Appeals.
3
This Court has long recognized that a State has absolute power under the Twenty-first Amendment to prohibit totally the sale of liquor within its boundaries. Ziffrin, Inc. v. Reeves, 308 U.S. 132, 138, 60 S.Ct. 163, 167, 84 L.Ed. 128 (1939). It is equally well established that a State has broad power under the Twenty-first Amendment to regulate the times, places, and circumstances under which liquor may be sold. In California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972), we upheld the facial constitutionality of a statute prohibiting acts of "gross sexuality," including the display of the genitals and live or filmed performances of sexual acts, in establishments licensed by the State to serve liquor. Although we recognized that not all of the prohibited acts would be found obscene and were therefore entitled to some measure of First Amendment protection, we reasoned that the statute was within the State's broad power under the Twenty-first Amendment to regulate the sale of liquor.
4
In Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975), we considered a First Amendment challenge to a local ordinance which prohibited females from appearing topless not just in bars, but "any public place." Though we concluded that the District Court had not abused its discretion in granting a preliminary injunction against enforcement of the ordinance, that decision does not limit our holding in LaRue. First, because Doran arose in the context of a preliminary injunction, we limited our standard of review to whether the District Court abused its discretion in concluding that plaintiffs were likely to prevail on the merits of their claim, not whether the ordinance actually violated the First Amendment. Thus, the decision may not be considered a "final judicial decision based on the actual merits of the controversy." University of Texas v. Camenisch, 451 U.S. 390, 396, 101 S.Ct. 1830, 1834, 68 L.Ed.2d 175 (1981). Second, the ordinance was far broader than the ordinance involved either in LaRue or here, since it proscribed conduct at "any public place," a term that " 'could include the theater, town hall, opera place, as well as a public market place, street or any place of assembly, indoors or outdoors.' " 422 U.S., at 933, 95 S.Ct., at 2568 (quoting Salem Inn, Inc. v. Frank, 364 F.Supp. 478, 483 (EDNY 1973)). Here, in contrast, the State has not attempted to ban topless dancing in "any public place": As in LaRue, the statute's prohibition applies only to establishments which are licensed by the State to serve liquor. Indeed, we explicitly recognized in Doran that a more narrowly drawn statute would survive judicial scrutiny:
5
"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 part of its liquor license control program." 422 U.S., at 932-933, 95 S.Ct., at 2568-2569.
6
Judged by the standards announced in LaRue and Doran, the statute at issue here is not unconstitutional. What the New York Legislature has done in this case is precisely what this Court in Doran has said a State may do. Pursuant to its power to regulate the sale of liquor within its boundaries, it has banned topless dancing in establishments granted a license to serve liquor. The State's power to ban the sale of alcoholic beverages entirely includes the lesser power to ban the sale of liquor on premises where topless dancing occurs.
7
Respondents nonetheless insist that LaRue is distinguishable from this case, since the statute there prohibited acts of "gross sexuality" and was well supported by legislative findings demonstrating a need for the rule. They argue that the statute here is unconstitutional as applied to topless dancing because there is no legislative finding that topless dancing poses anywhere near the problem posed by acts of "gross sexuality." But even if explicit legislative findings were required to uphold the constitutionality of this statute as applied to topless dancing, those findings exist in this case. The purposes of the statute have been set forth in an accompanying legislative memorandum, New York State Legislative Annual 150 (1977).
8
"Nudity is the kind of conduct that is a proper subject for legislative action as well as regulation by the State Liquor Authority as a phase of liquor licensing. It has long been held that sexual acts and performances may constitute disorderly behavior within the meaning of the Alcoholic Beverage Control Law . . . .
9
"Common sense indicates that any form of nudity coupled with alcohol in a public place begets undesirable behavior. This legislation prohibiting nudity in public will once and for all, outlaw conduct which is now quite out of hand."
10
In short, the elected representatives of the State of New York have chosen to avoid the disturbances associated with mixing alcohol and nude dancing by means of a reasonable restriction upon establishments which sell liquor for on-premises consumption. Given the "added presumption in favor of the validity of the state regulation" conferred by the Twenty-first Amendment, California v. LaRue, 409 U.S., at 118, 93 S.Ct., at 397, we cannot agree with the New York Court of Appeals that the statute violates the United States Constitution. Whatever artistic or communicative value may attach to topless dancing is overcome by the State's exercise of its broad powers arising under the Twenty-first Amendment. Although some may quarrel with the wisdom of such legislation and may consider topless dancing a harmless diversion, the Twenty-first Amendment makes that a policy judgment for the state legislature, not the courts.
11
Accordingly, the petition for certiorari is granted, the judgment of the New York Court of Appeals is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
12
It is so ordered.
13
Justice MARSHALL concurs in the judgment.
14
Justice BRENNAN dissents from the summary disposition and would set the case for oral argument.
15
Justice STEVENS, dissenting.
16
Although the Court has written several opinions implying that nude or partially nude dancing is a form of expressive activity protected by the First Amendment, the Court has never directly confronted the question.1 Today the Court construes the Twenty-first Amendment as a source of power permitting the State to prohibit such presumably protected activities in establishments which serve liquor. The Court relies on California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342, for that construction of the Twenty-first Amendment. The rationale of today's decision however, is not the same as the explanation the Court gave for its holding in that case. The syllogism supporting today's conclusion includes the premise that the State's Twenty-first Amendment power to ban the sale of alcoholic beverages entirely includes the lesser power to ban the sale of liquor on premises where activity assumed to be protected by the First Amendment occurs.2 If that reasoning is sound, then a State may ban any protected activity on such premises, no matter how innocuous or, more importantly, how clearly protected.3
17
In California v. LaRue, instead of relying on the simplistic reasoning employed by the Court today, the majority analyzed the issue by balancing the State's interests in preventing specifically identified social harms against the minimal interest in protected expression implicated by nude dancing.4 The opinion reflected the view that the degree of protection afforded by the First Amendment is a variable, and that the slight interest in free expression implicated by naked and lewd dancing was plainly outweighed by the State's interest—supported by explicit legislative findings—in maintaining order and decency.5 The Twenty-first Amendment provided the Court with an "added presumption," 409 U.S., at 118, 93 S.Ct., at 397, to tip the scales in the direction of law and order,6 but the opinion's evaluation of the conflicting interests would surely have led to the same result without that makeweight.7
18
The explicit legislative findings on which the Court heavily relied in LaRue have no counterpart in this case. The 1977 amendment to the New York Alcoholic Beverage Control Law left in place the prohibition against nude dancing that had been in effect for some time. Prior to 1977, topless dancing had been permitted subject to regulation that required the performer to dance on a stage that was inaccessible to patrons.8 The State has not indicated that the New York Legislature was presented with any evidence to the effect that this regulated form of entertainment had produced any undesirable consequences. A memorandum in the New York State Legislative Annual (1977), see ante, at 717-718, notes that nudity had "long been held" to constitute disorderly behavior within the meaning of the law as it then existed, but that memorandum sheds no light whatever on the decision to prohibit topless dancing as well as nudity.9 The New York Court of Appeals stated that this law "was not prompted by hearings or any legislative awareness of deficiencies in the prior regulation permitting topless dancing subject to restrictions and the continued supervision of the State Liquor Authority." 50 N.Y.2d 524, 530, 429 N.Y.S.2d 616, 620, 407 N.E.2d 460, 464.
19
I therefore believe that we must assume that the pre-1977 regulation adequately avoided the kind of "gross sexuality" that gave rise to the regulation challenged in LaRue. Although the emphasis on the legislative findings in this Court's opinion in LaRue may have merely disguised the Court's real holding, the Court is quite wrong today when it implies that the factors that supported the holding in LaRue are also present in this case. This case does not involve "gross sexuality" or any legislative explanation for the 1977 change in the law to prohibit topless dancing.
20
Having said this, I must confess that if the question whether a State may prohibit nude or partially nude dancing in commercial establishments were squarely confronted on its merits, I might well conclude that this is the sort of question that may be resolved by the elected representatives of a community. Sooner or later that issue will be briefed and argued on its own merits.10 I dissent in this case because I believe the Court should not continue to obscure that issue with irrelevancies such as its mischievous suggestion that the Twenty-first Amendment gives States power to censor free expression in places where liquor is served.11 Neither the language12 nor the history of that Amendment provides any support for that suggestion.13 Nor does LaRue justify it.14 Without any aid from the Twenty-first Amendment, the State's ordinary police powers are adequate to support the prohibition of nuisances in taverns or elsewhere. Cf. Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310.
21
Although I voted to deny certiorari and allow the decision of the highest court of the State of New York to stand, certiorari having been granted. I dissent from the Court's disposition of the case on the basis of a blatantly incorrect reading of the Twenty-first Amendment.
1
The statute provides:
"No retail licensee for on premises consumption shall suffer or permit any person to appear on licensed premises in such manner or attire as to expose to view any portion of the pubic area, anus, vulva or genitals, or any simulation thereof, nor shall suffer or permit any female to appear on licensed premises in such manner or attire as to expose to view any portion of the breast below the top of the areola, or any simulation thereof."
2
The Twenty-first Amendment provides in relevant part that "[t]he transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited."
1
See Doran v. Salem, Inn., Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648; Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557-558, 95 S.Ct. 1239, 1245-1246, 43 L.Ed.2d 448; California v. LaRue, 409 U.S. 109, 118, 93 S.Ct. 390, 397, 34 L.Ed.2d 342; Schad v. Mount Ephraim, 452 U.S. 61, 101 S.Ct. 2176, 68 L.Ed.2d 671.
2
"The State's power to ban the sale of alcoholic beverages entirely includes the lesser power to ban the sale of liquor on premises where topless dancing occurs." Ante, at 717.
3
Rejecting this reasoning, the New York Court of Appeals noted that "it would be most difficult to sustain a law prohibiting political discussions in places where alcohol is sold by the drink, even though the record may show, conclusively, that political discussions in bars often lead to disorderly behavior, assaults and even homicide." 50 N.Y.2d 524, 531, n. 7, 429 N.Y.S.2d 616, 620, n. 7, 407 N.E.2d 460, 464, n. 7.
4
The Court's opinion in LaRue recounted in explicit detail the undesirable consequences—described in evidence adduced at public hearings—resulting from the performance of lewd or naked dancing and entertainment in bars and cocktail lounges. See 409 U.S., at 111-112, 93 S.Ct., at 393-394. After emphasizing the State's interests in eliminating those consequences the Court turned to a discussion of the First Amendment and stated that "as the mode of expression moves from the printed page to the commission of public acts that may themselves violate valid penal statutes, the scope of permissible state regulations significantly increases." Id., at 117, 93 S.Ct., at 396.
5
In minimizing the First Amendment interests in nude dancing and recognizing the State's interest in regulating such behavior, the Court stated:
"The substance of the regulations struck down prohibits licensed bars or nightclubs from displaying, either in the form of movies or live entertainment, 'performances' that partake more of gross sexuality than of communication.. . .
". . . [W]e conceive the State's authority in this area to be somewhat broader than did the District Court. This is not to say that all such conduct and performance are without the protection of the First and Fourteenth Amendments. But we would poorly serve both the interest for which the State may validly seek vindication and the interests protected by the First and Fourteenth Amendments were we to insist that the sort of bacchanalian revelries that the Department sought to prevent by these liquor regulations were the constitutional equivalent of a performance by a scantily clad ballet troupe in a theater." Id., at 118, 93 S.Ct., at 397.
6
The Court recognized that the Twenty-first Amendment confers "something more than the normal state authority over public health, welfare, and morals." Id., at 114, 93 S.Ct., at 395. In discussing decisions construing the Twenty-first Amendment, however, the Court noted that, "[t]hese decisions did not go so far as to hold or say that the Twenty-first Amendment supersedes all other provisions of the United States Constitution in the area of liquor regulations." Id., at 115, 93 S.Ct., at 395.
7
In discussing the Twenty-first Amendment, the Court recognized that the States, "vested as they are with general police power, require no specific grant of authority in the Federal Constitution to legislate with respect to matters traditionally within the scope of the police power.. . ." Id., at 114, 93 S.Ct., at 395. The Court held that the Department of Alcoholic Beverage Control's "conclusion . . . that certain sexual performances and the dispensation of liquor by the drink ought not to occur at premises that have licenses was not an irrational one. Given the added presumption in favor of the validity of the state regulation in this area that the Twenty-first Amendment requires, we cannot hold that the regulations on their face violate the Federal Constitution." Id., at 118-119, 93 S.Ct., at 397.
8
The pre-1977 regulation prohibited the licensee from permitting "any female to appear on licensed premises" so as "to expose to view any portion of the breast below the top of the areola" but contained an exception for "any female entertainer performing on a stage or platform which is at least 18 inches above the immediate floor level and which is removed by at least six feet from the nearest patron." See 50 N.Y.2d, at 526, n. 2, 429 N.Y.S.2d, at 617, n. 2, 407 N.E.2d, at 461-462, n. 2. The 1977 amendment incorporated the general prohibition of topless dancing but did not incorporate the exception. See N.Y.Alco.Bev.Cont.Law, § 106, subd. 6-a (McKinney Supp.1980-1981).
9
The New York Court of Appeals recognized the difference between nude and topless dancing and emphasized the limited nature of respondents' challenge:
"In the case now before us the plaintiffs do not claim a right to offer performances of explicit sexual acts, live or filmed, real or simulated. Nor are we concerned with nude dancing. There is no contention that the plaintiffs should have a right to present their dancers entirely unclothed, and thus they do not challenge that portion of the statute which prohibits nudity. Nor do they contest the statute insofar as it would prohibit women other than dancers from appearing barebreasted on their premises. Similarly the plaintiffs do not contest the State's right to place some restriction on topless dancing performances as the Liquor Authority's regulations have done in the past. Finally, of course, the plaintiffs do not claim that they are exempted from the obscenity laws or that topless dancing should always be allowed no matter how, or where performed. The only question before us is whether the statute is constitutional to the extent that it absolutely prohibits liquor licensees from presenting nonobscene topless dancing performances to willing customers under all circumstances." 50 N.Y.2d, at 529, 429 N.Y.S.2d, at 619, 407 N.E.2d, at 463.
10
If topless dancing is entitled to First Amendment protection, it would seem to me that the places where it should most appropriately be conducted are places where alcoholic beverages are served. A holding that a state liquor board may prohibit its licensees from allowing such dancing on their premises may therefore be the practical equivalent of a holding that the activity is not protected by the First Amendment.
11
In Hostetter v. Idlewild Liquor Corp., 377 U.S. 324, 84 S.Ct. 1293, 12 L.Ed.2d 350, the Court recognized the effect of the Twenty-first Amendment on the Commerce Clause but included a reminder that is pertinent here:
"Both the Twenty-first Amendment and the Commerce Clause are parts of the same Constitution. Like other provisions of the Constitution, each must be considered in the light of the other, and in the context of the issues and interests at stake in any concrete case." Id., at 332, 84 S.Ct., at 1298.
That admonition is even more important in the context presented by the instant case, inasmuch as the drafters of the Twenty-first Amendment clearly intended the Amendment to have some impact on the Commerce Clause. That conclusion, contrary to the Court's reasoning, is totally unsupported with respect to the First Amendment.
12
In California Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U.S. 97, 106-107, 100 S.Ct. 937, 943-944, 63 L.Ed.2d 233, the Court rejected a claim that the Twenty-first Amendment prohibited the application of the Sherman Act to California's system of wine pricing and pointed out that in "determining state powers under the Twenty-first Amendment, the Court has focused primarily on the language of the provision . . . ." The difference between the Court's interpretation of the Twenty-first Amendment and its plain language is quite dramatic. The pertinent section of that Amendment provides:
"The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited."
13
In Craig v. Boren, 429 U.S. 190, 206, 97 S.Ct. 451, 461-462, 50 L.Ed.2d 397, the Court stated that "[t]his Court's decisions . . . have confirmed that the Amendment primarily created an exception to the normal operation of the Commerce Clause." The Court then unequivocally rejected the Twenty-first Amendment as a basis for sustaining state liquor regulations that otherwise violated the Equal Protection Clause:
"Once passing beyond consideration of the Commerce Clause, the relevance of the Twenty-first Amendment to other constitutional provisions becomes increasingly doubtful. As one commentator has remarked: 'Neither the text nor the history of the Twenty-first Amendment suggests that it qualifies individual rights protected by the Bill of Rights and the Fourteenth Amendment where the sale or use of liquor is concerned.' P. Brest, Processes of Constitutional Decisionmaking, Cases and Materials, 258 (1975). Any departures from this historical view have been limited and sporadic." Ibid.
Cf. Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515. Surely the First Amendment is entitled to a status equal to the Fourteenth Amendment.
14
Ironically, today the Court adopts an argument that the appellant expressly disclaimed during the oral argument in LaRue :
"QUESTION: Mr. Porter, in your argument here, is it based at all on the Twenty-First Amendment, dealing with the State authority over regulation of alcoholic beverages?
"MR. PORTER: Based to the extent that if we are in the First Amendment area, then as far as balancing the State's interests, we submit that both the traditional power that a State has had over the conditions surrounding the sale of alcoholic beverages and the power given to the States under the Twenty-First Amendment must be considered in balancing the State interests, that these are substantial and important State interests, where we're talking about the conditions surrounding the sale and consumption of alcoholic beverages.
"We have never argued, nor would we ever argue, that the Twenty-First Amendment would automatically override the First Amendment, or any other part of the Constitution. We only urge that—
"QUESTION: Well, it has been held that the Twenty-First Amendment overrode a great deal of the commerce clause, hasn't it?
"MR. PORTER: Well,—
"QUESTION: And it does, by its terms.
"MR. PORTER: That's correct, but I—
"QUESTION: And it has been held that the Twenty-First Amendment overrode a good deal of the equal protection clause of the Fourteenth Amendment, hasn't it? It was in the Younger case.
"MR. PORTER: Yes, but I would submit that—or I would, myself, attempt to temper that somewhat, to the extent I think it shows an overriding State interest in weighing between the commerce clause and the Twenty-First Amendment, where you get up in equal protection, where you get up into the First Amendment or some so-called, alleged, preferred amendments of the Constitution.
"As I said, we do not argue that it overrides the First Amendment. If we're dealing in a First Amendment area, that great weight should be given to the State's interest and power under the Twenty-First Amendment, in balancing and weighing, the State interest outweighs the State interest to be protected under the First Amendment." Tr. of Oral Arg. in California v. LaRue, O.T.1972, No. 71-36, pp. 10-12.
| 23
|
452 U.S. 666
101 S.Ct. 2573
69 L.Ed.2d 318
FIRST NATIONAL MAINTENANCE CORPORATION, Petitioner,v.NATIONAL LABOR RELATIONS BOARD.
No. 80-544.
Argued April 21, 1981.
Decided June 22, 1981.
Syllabus
Petitioner, a company engaged in the business of providing housekeeping, cleaning, maintenance, and related services for commercial customers, had a contract to do maintenance work for a nursing home. As a result of a dispute with the home over the size of the management fee, petitioner terminated the contract, and petitioner's employees who worked at the nursing home were discharged. While the contract was still in effect, a labor union was certified as the bargaining representative for petitioner's employees at the nursing home. The union, upon learning of petitioner's intention to discharge these employees, requested a delay from petitioner for the purpose of bargaining but petitioner refused to bargain. The union then filed an unfair labor practice charge against petitioner, alleging violation of its duty to bargain in good faith "with respect to wages, hours, and other terms and conditions of employment" under §§ 8(d) and 8(a)(5) of the National Labor Relations Act. The National Labor Relations Board upheld the charge and ordered petitioner, if it agreed to resume the nursing home operations, to reinstate the discharged employees or, if agreement was not reached, to offer the employees equivalent jobs at its other operations. The Court of Appeals enforced the Board's order, holding that while no per se rule could be formulated to govern an employer's decision to close part of its business, § 8(d) creates a presumption in favor of mandatory bargaining over such a decision, which presumption is rebuttable by showing that the purposes of the NLRA would not be furthered by imposing a duty to bargain.
Held : Although required to bargain about the effects of such a decision, petitioner had no duty to bargain over its decision to terminate the nursing home contract. The facts of Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233, distinguished. Pp. 674-6887.
(a) In view of an employer's need for unencumbered decisionmaking in the conduct of its business, bargaining over management decisions that have a substantial impact on the continued availability of employment should be required only if the benefit, for labor-management relations and the collective-bargaining process, outweighs the burden placed on the conduct of the business. Pp. 674-680.
(b) The harm likely to be done to an employer's need to operate freely in deciding whether to shut down part of its business purely for economic reasons outweighs the incremental benefit that might be gained through the union's participation in making that decision. The decision itself is not part of § 8(d)'s "terms and conditions of employment" over which Congress has mandated bargaining. Pp. 680-686.
627 F.2d 596, reversed and remanded.
Argued by Sanford E. Pollack, Hewlett, N.Y., for petitioner.
Norton J. Come, Washington, D.C., for respondent.
Justice BLACKMUN delivered the opinion of the Court.
1
Must an employer, under its duty to bargain in good faith "with respect to wages, hours, and other terms and conditions of employment," §§ 8(d) and 8(a)(5) of the National Labor Relations Act (Act), as amended, 49 Stat. 452, 29 U.S.C. §§ 158(d) and 158(a)(5), negotiate with the certified representative of its employees over its decision to close a part of its business? In this case, the National Labor Relations Board (Board) imposed such a duty on petitioner with respect to its decision to terminate a contract with a customer, and the United States Court of Appeals, although differing over the appropriate rationale, enforced its order.
2
* Petitioner, First National Maintenance Corporation (FNM), is a New York corporation engaged in the business of providing housekeeping, cleaning, maintenance, and related services for commercial customers in the New York City area. It supplies each of its customers, at the customer's premises, contracted-for labor force and supervision in return for reimbursement of its labor costs (gross salaries, FICA and FUTA taxes, and insurance) and payment of a set fee. It contracts for and hires personnel separately for each customer, and it does not transfer employees between locations.1
3
During the spring of 1977, petitioner was performing maintenance work for the Greenpark Care Center, a nursing home in Brooklyn. Its written agreement dated April 28, 1976, with Greenpark specified that Greenpark "shall furnish all tools, equiptment [sic ], materials, and supplies," and would pay petitioner weekly "the sum of five hundred dollars plus the gross weekly payroll and fringe benefits." App. in No. 79-4167 (CA2), pp. 43, 44. Its weekly fee, however, had been reduced to $250 effective November 1, 1976. Id., at 46. The contract prohibited Greenpark from hiring any of petitioner's employees during the term of the contract and for 90 days thereafter. Id., at 44. Petitioner employed approximately 35 workers in its Greenpark operation.
4
Petitioner's business relationship with Greenpark, seemingly, was not very remunerative or smooth. In March 1977, Greenpark gave petitioner the 30 days' written notice of cancellation specified by the contract, because of "lack of efficiency." Id., at 52. This cancellation did not become effective, for FNM's work continued after the expiration of that 30-day period. Petitioner, however, became aware that it was losing money at Greenpark. On June 30, by telephone, it asked that its weekly fee be restored at the $500 figure and, on July 6, it informed Greenpark in writing that it would discontinue its operations there on August 1 unless the increase were granted.2 Id., at 47. By telegram on July 25, petitioner gave final notice of termination. Id., at 48.
5
While FNM was experiencing these difficulties, District 1199, National Union of Hospital and Health Care Employees, Retail, Wholesale and Department Store Union, AFL-CIO (union), was conducting an organization campaign among petitioner's Greenpark employees. On March 31, 1977, at a Board-conducted election, a majority of the employees selected the union as their bargaining agent.3 On July 12, the union's vice president, Edward Wecker, wrote petitioner, notifying it of the certification and of the union's right to bargain, and stating: "We look forward to meeting with you or your representative for that purpose. Please advise when it will be convenient." Id., at 49. Petitioner neither responded nor sought to consult with the union.
6
On July 28, petitioner notified its Greenpark employees that they would be discharged three days later. Wecker immediately telephoned petitioner's secretary-treasurer, Leonard Marsh, to request a delay for the purpose of bargaining. Marsh refused the offer to bargain and told Wecker that the termination of the Greenpark operation was purely a matter of money, and final, and that the 30 days' notice provision of the Greenpark contract made staying on beyond August 1 prohibitively expensive. Id., at 79-81, 83, 85-86, 94. Wecker discussed the matter with Greenpark's management that same day, but was unable to obtain a waiver of the notice provision. Id., at 91-93, 98-99. Greenpark also was unwilling itself to hire the FNM employees because of the contract's 90-day limitation on hiring. Id., at 100-101, 106-107. With nothing but perfunctory further discussion, petitioner on July 31 discontinued its Greenpark operation and discharged the employees. Id., at 110-116.
7
The union filed an unfair labor practice charge against petitioner, alleging violations of the Act's §§ 8(a)(1) and (5). After a hearing held upon the Regional Director's complaint, the Administrative Law Judge made findings in the union's favor. Relying on Ozark Trailers, Inc., 161 N.L.R.B. 561 (1966), he ruled that petitioner had failed to satisfy its duty to bargain concerning both the decision to terminate the Greenpark contract and the effect of that change upon the unit employees.4 The judge reasoned:
8
"That the discharge of a man is a change in his conditions of employment hardly needs comment. In these obvious facts, the law is clear. When an employer's work complement is represented by a union and he wishes to alter the hiring arrangements, be his reason lack of money or a mere desire to become richer, the law is no less clear that he must first talk to the union about it. . . . If Wecker had been given an opportunity to talk, something might have been worked out to transfer these people to other parts of [petitioner's] business. . . . Entirely apart from whether open discussion between the parties—with the Union speaking on behalf of the employees as was its right—might have persuaded [petitioner] to find a way of continuing this part of its operations, there was always the possibility that Marsh might have persuaded Greenpark to use these same employees to continue doing its maintenance work, either as direct employees or as later hires by a replacement contractor." 242 N.L.R.B. 462, 465 (1979).5
9
The Administrative Law Judge recommended an order requiring petitioner to bargain in good faith with the union about its decision to terminate its Greenpark service operation and its consequent discharge of the employees, as well as the effects of the termination. He recommended, also, that petitioner be ordered to pay the discharged employees backpay from the date of discharge until the parties bargained to agreement, or the bargaining reached an impasse, or the union failed timely to request bargaining, or the union failed to bargain in good faith.
10
The National Labor Relations Board adopted the Administrative Law Judge's findings without further analysis, and additionally required petitioner, if it agreed to resume its Greenpark operations, to offer the terminated employees reinstatement to their former jobs or substantial equivalents; conversely, if agreement was not reached, petitioner wasordered to offer the employees equivalent positions, to be made available by discharge of subsequently hired employees, if necessary, at its other operations. Id., at 463.
11
The United States Court of Appeals for the Second Circuit, with one judge dissenting in part, enforced the Board's order, although it adopted an analysis different from that espoused by the Board. 627 F.2d 596 (1980).6 The Court of Appeals reasoned that no per se rule could be formulated to govern an employer's decision to close part of its business. Rather, the court said, § 8(d) creates a presumption in favor of mandatory bargaining over such a decision, a presumption that is rebuttable "by showing that the purposes of the statute would not be furthered by imposition of a duty to bargain," for example, by demonstrating that "bargaining over the decision would be futile," or that the decision was due to "emergency financial circumstances," or that the "custom of the industry, shown by the absence of such an obligation from typical collective bargaining agreements, is not to bargain over such decisions." Id., at 601-602.
12
The Court of Appeals' decision in this case appears to be at odds with decisions of other Courts of Appeals,7 some of which decline to require bargaining over any management decision involving "a major commitment of capital investment" or a "basic operational change" in the scope or direction of an enterprise,8 and some of which indicate that bargaining is not mandated unless a violation of § 8(a)(3) (a partial closing motivated by antiunion animus) is involved.9 The Court of Appeals for the Fifth Circuit has imposed a duty to bargain over partial closing decisions. See NLRB v. Winn-Dixie Stores, Inc., 361 F.2d 512, cert. denied, 385 U.S. 935, 87 S.Ct. 295, 17 L.Ed.2d 215 (1966). The Board itself has not been fully consistent in its rulings applicable to this type of management decision.10
13
Because of the importance of the issue and the continuing disagreement between and among the Board and the Courts of Appeals, we granted certiorari. 449 U.S. 1076, 101 S.Ct. 854, 66 L.Ed.2d 798 (1981).
II
14
A fundamental aim of the National Labor Relations Act is the establishment and maintenance of industrial peace to preserve the flow of interstate commerce. NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893 (1937). Central to achievement of this purpose is the promotion of collective bargaining as a method of defusing and channeling conflict between labor and management.11 § 1 of the Act, as amended, 29 U.S.C. § 151. Congress ensured that collective bargaining would go forward by creating the Board and giving it the power to condemn as unfair labor practices certain conduct by unions and employers that it deemed deleterious to the process, including the refusal "to bargain collectively." §§ 3 and 8, 29 U.S.C. §§ 153 and 158.
15
Although parties are free to bargain about any legal subject, Congress has limited the mandate or duty to bargain to matters of "wages, hours, and other terms and conditions of employment."12 A unilateral change as to a subject within this category violates the statutory duty to bargain and is subject to the Board's remedial order. NLRB v. Katz, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962). Conversely, both employer and union may bargain to impasse over these matters and use the economic weapons at their disposal to attempt to secure their respective aims. NLRB v. American National Ins. Co., 343 U.S. 395, 72 S.Ct. 824, 96 L.Ed. 1027 (1952).13 Congress deliberately left the words "wages, hours, and other terms and conditions of employment" without further definition, for it did not intend to deprive the Board of the power further to define those terms in light of specific industrial practices.14
16
Nonetheless, in establishing what issues must be submitted to the process of bargaining, Congress had no expectation that the elected union representative would become an equal partner in the running of the business enterprise in which the union's members are employed. Despite the deliberate open-endedness of the statutory language, there is an undeniable limit to the subjects about which bargaining must take place:
17
"Section 8(a) of the Act, of course, does not immutably fix a list of subjects for mandatory bargaining. . . . But it does establish a limitation against which proposed topics must be measured. In general terms, the limitation includes only issues that settle an aspect of the relationship between the employer and the employees." Chemical & Alkali Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 178, 92 S.Ct. 383, 397, 30 L.Ed.2d 341 (1971).
18
See also Ford Motor Co. v. NLRB, 441 U.S. 488, 99 S.Ct. 1842, 60 L.Ed.2d 420 (1979); Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964); Teamsters v. Oliver, 358 U.S. 283, 79 S.Ct. 297, 3 L.Ed.2d 312 (1959).
19
Some management decisions, such as choice of advertising and promotion, product type and design, and financing arrangements, have only an indirect and attenuated impact on the employment relationship. See Fibreboard, 379 U.S., at 223, 85 S.Ct., at 409 (STEWART, J., concurring). Other management decisions, such as the order of succession of layoffs and recalls, production quotas, and work rules, are almost exclusively "an aspect of the relationship" between employer and employee. Chemical Workers, 404 U.S., at 178, 92 S.Ct., at 397. The present case concerns a third type of management decision, one that had a direct impact on employment, since jobs were inexorably eliminated by the termination, but had as its focus only the economic profitability of the contract with Greenpark, a concern under these facts wholly apart from the employment relationship. This decision, involving a change in the scope and direction of the enterprise, is akin to the decision whether to be in business at all, "not in [itself] primarily about conditions of employment, though the effect of the decision may be necessarily to terminate employment." Fibreboard, 379 U.S., at 223, 85 S.Ct., at 409 (STEWART, J., concurring). Cf. Textile Workers v. Darlington Co., 380 U.S. 263, 268, 85 S.Ct. 994, 998, 13 L.Ed.2d 827 (1965) ("an employer has the absolute right to terminate his entire business for any reason he pleases"). At the same time, this decision touches on a matter of central and pressing concern to the union and its member employees: the possibility of continued employment and the retention of the employees' very jobs. See Brockway Motor Trucks v. NLRB, 582 F.2d 720, 735-736 (CA3 1978); Ozark Trailers, Inc., 161 N.L.R.B. 561, 566-568 (1966).
20
Petitioner contends it had no duty to bargain about its decision to terminate its operations at Greenpark. This contention requires that we determine whether the decision itself should be considered part of petitioner's retained freedom to manage its affairs unrelated to employment.15 The aim of labeling a matter a mandatory subject of bargaining, rather than simply permitting, but not requiring, bargaining, is to "promote the fundamental purpose of the Act by bringing a problem of vital concern to labor and management within the framework established by Congress as most conducive to industrial peace," Fibreboard, 379 U.S., at 211, 85 S.Ct., at 403. The concept of mandatory bargaining is premised on the belief that collective discussions backed by the parties' economic weapons will result in decisions that are better for both management and labor and for society as a whole.16 Ford Motor Co., 441 U.S., at 500-501, 99 S.Ct., at 1851; Borg-Warner, 356 U.S., at 350, 78 S.Ct., at 723 (condemning employer's proposal of "ballot" clause as weakening the collective-bargaining process). This will be true, however, only if the subject proposed for discussion is amenable to resolution through the bargaining process. Management must be free from the constraints of the bargaining process17 to the extent essential for the running of a profitable business. It also must have some degree of certainty beforehand as to when it may proceed to reach decisions without fear of later evaluations labeling its conduct an unfair labor practice. Congress did not explicitly state what issues of mutual concern to union and management it intended to exclude from mandatory bargaining.18 Nonetheless, in view of an employer's need for unencumbered decisionmaking, bargaining over management decisions that have a substantial impact on the continued availability of employment should be required only if the benefit, for labor-management relations and the collective-bargaining process, outweighs the burden placed on the conduct of the business.
21
The Court in Fibreboard implicitly engaged in this analysis with regard to a decision to subcontract for maintenance work previously done by unit employees. Holding the employer's decision a subject of mandatory bargaining, the Court relied not only on the "literal meaning" of the statutory words, but also reasoned:
22
"The Company's decision to contract out the maintenance work did not alter the Company's basic operation. The maintenance work still had to be performed in the plant.
23
No capital investment was contemplated; the Company merely replaced existing employees with those of an independent contractor to do the same work under similar conditions of employment. Therefore, to require the employer to bargain about the matter would not significantly abridge his freedom to manage the business." 379 U.S., at 213, 85 S.Ct., at 404.
24
The Court also emphasized that a desire to reduce labor costs, which it considered a matter "peculiarly suitable for resolution within the collective bargaining framework," id., at 214, 85 S.Ct., at 404, was at the base of the employer's decision to subcontract:
25
"It was induced to contract out the work by assurances from independent contractors that economies could be derived by reducing the work force, decreasing fringe benefits, and eliminating overtime payments. These have long been regarded as matters peculiarly suitable for resolution within the collective bargaining framework, and industrial experience demonstrates that collective negotiation has been highly successful in achieving peaceful accommodation of the conflicting interests." Id., at 213-214, 85 S.Ct., at 404.
26
The prevalence of bargaining over "contracting out" as a matter of industrial practice generally was taken as further proof of the "amenability of such subjects to the collective bargaining process." Id., at 211, 85 S.Ct., at 403.
27
With this approach in mind, we turn to the specific issue at hand: an economically motivated decision to shut down part of a business.
III
A.
28
Both union and management regard control of the decision to shut down an operation with the utmost seriousness. As has been noted, however, the Act is not intended to serve either party's individual interest, but to foster in a neutral manner a system in which the conflict between these interests may be resolved. It seems particularly important, therefore, to consider whether requiring bargaining over this sort of decision will advance the neutral purposes of the Act.
29
A union's interest in participating in the decision to close a particular facility or part of an employer's operations springs from its legitimate concern over job security. The Court has observed: "The words of [§ 8(d)] . . . plainly cover termination of employment which . . . necessarily results" from closing an operation. Fibreboard, 379 U.S., at 210, 85 S.Ct., at 402. The union's practical purpose in participating, however, will be largely uniform: it will seek to delay or halt the closing. No doubt it will be impelled, in seeking these ends, to offer concessions, information, and alternatives that might be helpful to management or forestall or prevent the termination of jobs.19 It is unlikely, however, that requiring bargaining over the decision itself, as well as its effects, will augment this flow of information and suggestions. There is no dispute that the union must be given a significant opportunity to bargain about these matters of job security as part of the "effects" bargaining mandated by § 8(a)(5). See, e. g., NLRB v. Royal Plating & Polishing Co., 350 F.2d 191, 196 (CA3 1965); NLRB v. Adams Dairy, Inc., 350 F.2d 108 (CA8 1965), cert. denied, 382 U.S. 1011, 86 S.Ct. 619, 15 L.Ed.2d 256 (1966). And, under § 8(a)(5), bargaining over the effects of a decision must be conducted in a meaningful manner and at a meaningful time, and the Board may impose sanctions to insure its adequacy. A union, by pursuing such bargaining rights, may achieve valuable concessions from an employer engaged in a partial closing. It also may secure in contract negotiations provisions implementing rights to notice, information, and fair bargaining. See BNA, Basis Patterns in Union Contracts 62-64 (9th ed., 1979).
30
Moreover, the union's legitimate interest in fair dealing is protected by § 8(a)(3), which prohibits partial closings motivated by antiunion animus, when done to gain an unfair advantage. Textile Workers v. Darlington Co., 380 U.S. 263, 85 S.Ct. 994, 13 L.Ed.2d 827 (1965). Under § 8(a)(3) the Board may inquire into the motivations behind a partial closing. An employer may not simply shut down part of its business and mask its desire to weaken and circumvent the union by labeling its decision "purely economic."
31
Thus, although the union has a natural concern that a partial closing decision not be hastily or unnecessarily entered into, it has some control over the effects of the decision and indirectly may ensure that the decision itself is deliberately considered. It also has direct protection against a partial closing decision that is motivated by an intent to harm a union.
32
Management's interest in whether it should discuss a decision of this kind is much more complex and varies with the particular circumstances. If labor costs are an important factor in a failing operation and the decision to close, management will have an incentive to confer voluntarily with the union to seek concessions that may make continuing the business profitable. Cf. U.S. News & World Report, Feb. 9, 1981, p. 74; BNA, Labor Relations Yearbook-1979, p. 5 (UAW agreement with Chrysler Corp. to make concessions on wages and fringe benefits). At other times, management may have great need for speed, flexibility, and secrecy in meeting business opportunities and exigencies.20 It may face significant tax or securities consequences that hinge on confidentiality, the timing of a plant closing, or a reorganization of the corporate structure. The publicity incident to the normal process of bargaining may injure the possibility of a successful transition or increase the economic damage to the business. The employer also may have no feasible alternative to the closing, and even good-faith bargaining over it may both be futile and cause the employer additional loss.21
33
There is an important difference, also, between permitted bargaining and mandated bargaining. Labeling this type of decision mandatory could afford a union a powerful tool for achieving delay, a power that might be used to thwart management's intentions in a manner unrelated to any feasible solution the union might propose. See Comment, "Partial Terminations"—A Choice Between Bargaining Equality and Economic Efficiency, 14 U.C.L.A.L.Rev. 1089, 1103-1105 (1967). In addition, many of the cases before the Board have involved, as this one did, not simply a refusal to bargain over the decision, but a refusal to bargain at all, often coupled with other unfair labor practices. See, e. g., Electrical Products Div. of Midland-Ross Corp. v. NLRB, 617 F.2d 977 (CA3 1980), cert. denied, 449 U.S. 871, 101 S.Ct. 210, 66 L.Ed.2d 91 (1981); NLRB v. Amoco Chemicals Corp., 529 F.2d 427 (CA5 1976); Royal Typewriter Co. v. NLRB, 533 F.2d 1030 (CA8 1976); NLRB v. American Mfg. Co., 351 F.2d 74 (CA5 1965) (subcontracting); Smyth Mfg. Co., 247 N.L.R.B. 1139 (1980). In these cases, the employer's action gave the Board reason to order remedial relief apart from access to the decisionmaking process. It is not clear that a union would be equally dissatisfied if an employer performed all its bargaining obligations apart from the additional remedy sought here.
34
While evidence of current labor practice is only an indication of what is feasible through collective bargaining, and not a binding guide, see Chemical Workers, 404 U.S., at 176, 92 S.Ct., at 396, that evidence supports the apparent imbalance weighing against mandatory bargaining. We note that provisions giving unions a right to participate in the decisionmaking process concerning alteration of the scope of an enterprise appear to be relatively rare. Provisions concerning notice and "effects" bargaining are more prevalent. See II BNA, Collective Bargaining Negotiations and Contracts § 65:201-233 (1981); U.S. Dept. of Labor, Bureau of Labor Statistics, Bull. 2065, Characteristics of Major Collective Bargaining Agreements, Jan. 1, 1978, pp. 96, 100, 101, 102-103 (1980) (charting provisions giving interplant transfer and relocation allowances; advance notice of layoffs, shutdowns, and technological changes; and wage-employment guarantees; no separate tables on decision-bargaining, presumably due to rarity). See also U.S. Dept. of Labor, Bureau of Labor Statistics, Bull. No. 1425-10, Major Collective Bargaining Agreements, Plant Movement, Transfer, and Relocation Allowances (July 1969).
35
Further, the presumption analysis adopted by the Court of Appeals seems ill-suited to advance harmonious relations between employer and employee. An employer would have difficulty determining beforehand whether it was faced with a situation requiring bargaining or one that involved economic necessity sufficiently compelling to obviate the duty to bargain. If it should decide to risk not bargaining, it might be faced ultimately with harsh remedies forcing it to pay large amounts of backpay to employees who likely would have been discharged regardless of bargaining, or even to consider reopening a failing operation. See e. g., Electrical Products Div. of Midland-Ross Corp., 239 N.L.R.B. 323 (1978), enf'd, 617 F.2d 977 (CA3 1980), cert. denied, 449 U.S. 871, 101 S.Ct. 210, 66 L.Ed.2d 91 (1981). Cf. Lever Brothers Co. v. International Chemical Workers Union, 554 F.2d 115 (CA4 1976) (enjoining plant closure and transfer to permit negotiations). Also, labor costs may not be a crucial circumstance in a particular economically based partial termination. See e. g., NLRB v. International Harvester Co., 618 F.2d 85 (CA9 1980) (change in marketing structure); NLRB v. Thompson Transport Co., 406 F.2d 698 (CA10 1969) (loss of major customer). And in those cases, the Board's traditional remedies may well be futile. See ABC Trans-National Transport, Inc. v. NLRB, 642 F.2d 675 (CA3 1981) (although employer violated its "duty" to bargain about freight terminal closing, court refused to enforce order to bargain). If the employer intended to try to fulfill a court's direction to bargain, it would have difficulty determining exactly at what stage of its deliberations the duty to bargain would arise and what amount of bargaining would suffice before it could implement its decision. Compare Burns Ford, Inc., 182 N.L.R.B. 753 (1970) (one week's notice of layoffs sufficient), and Hartmann Luggage Co., 145 N.L.R.B. 1572 (1964) (entering into executory subcontracting agreement before notifying union not a violation since contract not yet final), with Royal Plating & Polishing Co., 148 N.L.R.B. 545, 555 (1964), enf. denied, 350 F.2d 191 (CA3 1965) (two weeks' notice before final closing of plant inadequate). If an employer engaged in some discussion, but did not yield to the union's demands, the Board might conclude that the employer had engaged in "surface bargaining," a violation of its good faith. See NLRB v. Reed & Prince Mfg. Co., 205 F.2d 131 (CA1), cert. denied, 346 U.S. 887, 74 S.Ct. 139, 98 L.Ed. 391 (1953). A union, too, would have difficulty determining the limits of its prerogatives, whether and when it could use its economic powers to try to alter an employer's decision, or whether, in doing so, it would trigger sanctions from the Board. See, e. g., International Offset Corp., 210 N.L.R.B. 854 (1974) (union's failure to realize that shutdown was imminent, in view of successive advertisements, sales of equipment, and layoffs, held a waiver of right to bargain); Shell Oil Co., 149 N.L.R.B. 305 (1964) (union waived its right to bargain by failing to request meetings when employer announced intent to transfer a few days before implementation).
36
We conclude that the harm likely to be done to an employer's need to operate freely in deciding whether to shut down part of its business purely for economic reasons outweighs the incremental benefit that might be gained through the union's participation in making the decision,22 and we hold that the decision itself is not part of § 8(d)'s "terms and conditions," see n. 12,supra, over which Congress has mandated bargaining.23
B
37
In order to illustrate the limits of our holding, we turn again to the specific facts of this case. First, we note that when petitioner decided to terminate its Greenpark contract, it had no intention to replace the discharged employees or to move that operation elsewhere. Petitioner's sole purpose was to reduce its economic loss, and the union made no claim of antiunion animus. In addition, petitioner's dispute with Greenpark was solely over the size of the management fee Greenpark was willing to pay. The union had no control or authority over that fee. The most that the union could have offered would have been advice and concessions that Greenpark, the third party upon whom rested the success or failure of the contract, had no duty even to consider. These facts in particular distinguish this case from the subcontracting issue presented in Fibreboard. Further, the union was not selected as the bargaining representative or certified until well after petitioner's economic difficulties at Greenpark had begun. We thus are not faced with an employer's abrogation of ongoing negotiations or an existing bargaining agreement. Finally, while petitioner's business enterprise did not involve the investment of large amounts of capital in single locations, we do not believe that the absence of "significant investment or withdrawal of capital," General Motors Corp., GMC Truck & Coach Div., 191 N.L.R.B., at 952, is crucial. The decision to halt work at this specific location represented a significant change in petitioner's operations, a change not unlike opening a new line of business or going out of business entirely.
38
The judgment of the Court of Appeals, accordingly, is reversed, and the case is remanded to that court for further proceedings consistent with this opinion.
39
It is so ordered.
40
Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.
41
Section 8(d) of the National Labor Relations Act, as amended, requires employers and employee representatives "to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment." 29 U.S.C. § 158(d). The question in this case is whether First National Maintenance Corporation's decision to terminate its Greenpark Care Center operation and to discharge the workers employed in that operation was a decision with respect to "terms and conditions of employment" within the meaning of the Act, thus rendering its failure to negotiate with the union unlawful.
42
As this Court has noted, the words "terms and conditions of employment" plainly cover termination of employment resulting from a management decision to close an operation. Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 210, 85 S.Ct. 398, 402, 13 L.Ed.2d 233 (1964). As the Court today admits, the decision to close an operation "touches on a matter of central and pressing concern to the union and its member employees." Ante, at 677. Moreover, as the Court today further concedes, Congress deliberately left the words "terms and conditions of employment" indefinite, so that the NLRB would be able to give content to those terms in light of changing industrial conditions. Id., at 2579, and n. 14. In the exercise of its congressionally delegated authority and accumulated expertise, the Board has determined that an employer's decision to close part of its operations affects the "terms and conditions of employment" within the meaning of the Act, and is thus a mandatory subject for collective bargaining. Ozark Trailers, Inc., 161 N.L.R.B. 561 (1966). Nonetheless, the Court today declines to defer to the Board's decision on this sensitive question of industrial relations, and on the basis of pure speculation reverses the judgment of the Board and of the Court of Appeals. I respectfully dissent.
43
The Court bases its decision on a balancing test. It states that "bargaining over management decisions that have a substantial impact on the continued availability of employment should be required only if the benefit, for labor-management relations and the collective-bargaining process, outweighs the burden placed on the conduct of the business." Ante, at 679. I cannot agree with this test, because it takes into account only the interests of management ; it fails to consider the legitimate employment interests of the workers and their union. Cf. Brockway Motor Trucks v. NLRB, 582 F.2d 720, 734-740 (CA3 1978) (balancing of interests of workers in retaining their jobs against interests of employers in maintaining unhindered control over corporate direction). This one-sided approach hardly serves "to foster in a neutral manner'" a system for resolution of these serious, two-sided controversies. See ante, at 680-681.
44
Even if the Court's statement of the test were accurate, I could not join in its application, which is based solely on speculation. Apparently, the Court concludes that the benefit to labor-management relations and the collective-bargaining process from negotiation over partial closings is minimal, but it provides no evidence to that effect. The Court acknowledges that the union might be able to offer concessions, information, and alternatives that might obviate or forestall the closing, but it then asserts that "[i]t is unlikely, however, that requiring bargaining over the decision . . . will augment this flow of information and suggestions." Ante, at 681. Recent experience, however, suggests the contrary. Most conspicuous, perhaps, were the negotiations between Chrysler Corporation and the United Auto Workers, which led to significant adjustments in compensation and benefits, contributing to Chrysler's ability to remain afloat. See Wall Street Journal, Oct. 26, 1979, p. 3, col. 1. Even where labor costs are not the direct cause of a company's financial difficulties, employee concessions can often enable the company to continue in operation—if the employees have the opportunity to offer such concessions.*
45
The Court further presumes that management's need for "speed, flexibility, and secrecy" in making partial closing decisions would be frustrated by a requirement to bargain. Ante, at 682-683. In some cases the Court might be correct. In others, however, the decision will be made openly and de liberately, and considerations of "speed, flexibility, and secrecy" will be inapposite. Indeed, in view of management's admitted duty to bargain over the effects of a closing, see ante, at 677-678, n. 15, it is difficult to understand why additional bargaining over the the closing itself would necessarily unduly delay or publicize the decision.
46
I am not in a position to judge whether mandatory bargaining over partial closings in all cases is consistent with our national labor policy, and neither is the Court. The primary responsibility to determine the scope of the statutory duty to bargain has been entrusted to the NLRB, which should not be reversed by the courts merely because they might prefer another view of the statute. Ford Motor Co. v. NLRB, 441 U.S. 488, 495-497, 99 S.Ct. 1842, 1848-1849, 60 L.Ed.2d 420 (1979); see NLRB v. Erie Resistor Corp., 373 U.S. 221, 236, 83 S.Ct. 1139, 1149, 10 L.Ed.2d 308 (1963). I therefore agree with the Court of Appeals that employers presumptively have a duty to bargain over a decision to close an operation, and that this presumption can be rebutted by a showing that bargaining would be futile, that the closing was due to emergency financial circumstances, or that, for some other reason, bargaining would not further the purposes of the National Labor Relations Act. 627 F.2d 596, 601 (CA2 1980). I believe that this approach is amply supported by recent decisions of the Board. E. g., Brooks-Scanlon, Inc., 246 N.L.R.B. 476, 102 LRRM 1606 (1979); Raskin Packing Co., 246 N.L.R.B. No. 15, 102 LRRM 1489 (1979); M. & M. Transportation Co., 239 N.L.R.B. 73 (1978). With respect to the individual facts of this case, however, I would vacate the judgment of the Court of Appeals, and remand to the Board for further examination of the evidence. See SEC v. Chenery Corp., 318 U.S. 80, 94-95, 63 S.Ct. 454, 462, 87 L.Ed. 626 (1943).
1
The record does not show the precise dimension of petitioner's business. See 242 N.L.R.B. 462, 464 (1979). One of the owners testified that petitioner at that time had "between two and four" other nursing homes as customers. Ibid. The Administrative Law Judge hypothesized, however: "This is a large Company. For all I know, the 35 men at this particular home were only a small part of its total business in the New York area." Id., at 465.
2
The record does not disclose how the contract's 30-day written notice provision was satisfied. In any event, the parties make no point of any shortage in the notice.
3
The union was certified on May 11, 1977. App. in No. 79-4167 (CA2), p. 50.
4
The Administrative Law Judge rejected petitioner's contention that it had satisfied, by that single phone call to Wecker, its duty to bargain about the termination.
5
The judge further found that petitioner's "regular and usual" method of operation involved "taking on, finishing, or discontinuing this or that particular job," 242 N.L.R.B., at 466, and that "[t]here was no capital involved when it decided to terminate the Greenpark job. The closing of this one spot in no sense altered the nature of its business, nor did it substantially affect its total size." Ibid. The Administrative Law Judge therefore found inapplicable the Board's ruling in Brockway Motor Trucks, Division of Mack Trucks, Inc., 230 N.L.R.B. 1002, 1003 (1977), enf. denied, 582 F.2d 720 (CA3 1978), that an employer's decision to close part of its business is not a mandatory subject of bargaining if it involves such a " 'significant investment or withdrawal of capital' as to 'affect the scope and ultimate direction of an enterprise,' " quoting from General Motors Corp., GMC Truck & Coach Div., 191 N.L.R.B. 951, 952 (1971).
6
Because the court adopted different grounds for enforcement of the Board's order, it was error to enforce without a remand to the Board for further examination of the evidence and proper factfinding. NLRB v. Pipefitters, 429 U.S. 507, 522, n. 9, 97 S.Ct. 891, 900, n. 9, 51 L.Ed.2d 1 (1977); SEC v. Chenery Corp., 318 U.S. 80, 95, 63 S.Ct. 454, 462, 87 L.Ed. 626 (1943).
7
The Court of Appeals in this case, for example, agreed, 627 F.2d, at 601, with the Third Circuit in Brockway Motor Trucks v. NLRB, 582 F.2d 720 (1978), that a presumption in favor of bargaining was to be established, but it analyzed differently how that presumption would be rebutted. The Third Circuit had decided that the competing interests of the employer and the employees, under the particular circumstances, must be weighed, and it had remanded the case before it to the Board for factfinding into the circumstances behind the partial closing. See also Equitable Gas Co. v. NLRB, 637 F.2d 980 (CA3 1981) (subcontracting); ABC Trans-National Transport, Inc. v. NLRB, 642 F.2d 675 (CA3 1981) (partial closing); NLRB v. Royal Plating & Polishing Co., 350 F.2d 191 (CA3 1965) (partial closing). Several courts have agreed with the Second Circuit. See, e. g., Davis v. NLRB, 617 F.2d 1264 (CA7 1980) (change of full-service restaurant to self-service cafeteria); NLRB v. Production Molded Plastics, Inc., 604 F.2d 451 (CA6 1979) (plant closing).
8
See, e. g., NLRB v. International Harvester Co., 618 F.2d 85 (CA9 1980); NLRB v. Adams Dairy, Inc., 350 F.2d 108 (CA8 1965), cert. denied, 382 U.S. 1011, 86 S.Ct. 619, 15 L.Ed.2d 526 (1966); NLRB v. Transmarine Navigation Corp., 380 F.2d 933 (CA9 1967); Royal Typewriter Co. v. NLRB, 533 F.2d 1030 (CA8 1976); NLRB v. Rapid Bindery, Inc., 293 F.2d 170 (CA2 1961); NLRB v. Thompson Transport Co., 406 F.2d 698 (CA10 1969).
9
See, e. g., Morrison Cafeterias Consolidated, Inc. v. NLRB, 431 F.2d 254 (CA8 1970); NLRB v. Drapery Mfg. Co., 425 F.2d 1026 (CA8 1970); NLRB v. William J. Burns International Detective Agency, Inc., 346 F.2d 897 (CA8 1965).
10
Compare National Car Rental System, Inc., 252 N.L.R.B. 159, 161 (1980) (employer's decision to terminate car leasing operations at one location not a mandatory subject because " 'essentially financial and managerial in nature,' involving a 'significant investment or withdrawal of capital, affecting the scope and ultimate direction of an enterprise,' " quoting from General Motors Corp., GMC Truck & Coach Div., 191 N.L.R.B., at 952), and Summit Tooling Co., 195 N.L.R.B. 479, 480 (1972) (decision to close a subsidiary not a mandatory subject because "its practical effect was to take the Respondent out of the business of manufacturing tool and tooling products"), with Ozark Trailers, Inc., 161 N.L.R.B. 561, 567, 568 (1966) (employer's decision to shut down one of multiple plants was a mandatory subject because it was "a decision directly affecting terms and conditions of employment" and "interests of employees are of sufficient importance that their representatives ought to be consulted in matters affecting them"). See also Kingwood Mining Co., 210 N.L.R.B. 844 (1974), aff'd sub nom. United Mine Workers v. NLRB, 169 U.S.App.D.C. 301, 515 F.2d 1018 (1975).
11
"Experience has abundantly demonstrated that the recognition of the right of employees to self-organization and to have representatives of their own choosing for the purpose of collective bargaining is often an essential condition of industrial peace. Refusal to confer and negotiate has been one of the most prolific causes of strife. This is such an outstanding fact in the history of labor disturbances that it is a proper subject of judicial notice and requires no citation of instances." NLRB v. Jones & Laughlin Steel Corp., 301 U.S., at 42, 57 S.Ct., at 626 (upholding the constitutionality of the Act).
12
Sections 8(a)(5) and 8(b)(3) of the Act make it an unfair labor practice for an employer and union representative, respectively, "to refuse to bargain collectively." 29 U.S.C. §§ 158(a)(5) and 158(b)(3). Section 8(d), added, as was § 8(b)(3), to the Act by the amendatory Labor Management Relations Act, 1947, 61 Stat. 136, defines the duty to bargain as
"the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment . . . ." 29 U.S.C. § 158(d).
Section 9(a) further specifies that
"[r]epresentatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment . . . ." 29 U.S.C. § 159(a).
13
A matter that is not a mandatory subject of bargaining, unless it is illegal, may be raised at the bargaining table to be discussed in good faith, and the parties may incorporate it into an enforceable collective-bargaining agreement. Labor and management may not, however, insist on it to the point of impasse. NLRB v. Borg-Warner Corp., 356 U.S. 342, 78 S.Ct. 718, 2 L.Ed.2d 823 (1958).
14
In enacting the Labor Management Relations Act, 1947, Congress rejected a proposal in the House to limit the subjects of bargaining to
"(i) [w]age rates, hours of employment, and work requirements; (ii) procedures and practices relating to discharge, suspension, lay-off, recall, seniority, and discipline, or to promotion, demotion, transfer and assignment within the bargaining unit; (iii) conditions, procedures, and practices governing safety, sanitation, and protection of health at the place of employment; (iv) vacations and leaves of absence; and (v) administrative and procedural provisions relating to the foregoing subjects." H.R. 3020 § 2(11), 80th Cong., 1st Sess. (1947).
The adoption, instead, of the general phrase now part of § 8(d) was clearly meant to preserve future interpretation by the Board. See H.R.Rep.No.245, 80th Cong., 1st Sess., 71 (1947) (minority report) ("The appropriate scope of collective bargaining cannot be determined by a formula; it will inevitably depend upon the traditions of an industry, the social and political climate at any given time, the needs of employers and employees, and many related factors. What are proper subject matters for collective bargaining should be left in the first instance to employers and trade-unions, and in the second place, to any administrative agency skilled in the field and competent to devote the necessary time to a study of industrial practices and traditions in each industry or area of the country, subject to review by the courts. It cannot and should not be strait-jacketed by legislative enactment"); H.R.Conf.Rep.No.510, 80th Cong., 1st Sess., 34-35 (1947), U.S.Code Cong.Serv. 1947, p. 1135. Specific references in the legislative history to plant closings, however, are inconclusive. See 79 Cong.Rec. 7673, 9682 (1935) (comments of Sen. Walsh and Rep. Griswold).
15
There is no doubt that petitioner was under a duty to bargain about the results or effects of its decision to stop the work at Greenpark, or that it violated that duty. Petitioner consented to enforcement of the Board's order concerning bargaining over the effects of the closing and has reached agreement with the union on severance pay. App. in No. 79-4167 (CA2), pp. 21-22.
16
"The Act does not compel agreements between employers and employees. It does not compel any agreement whatever. It does not prevent the employer 'from refusing to make a collective contract and hiring individuals on whatever terms' the employer 'may by unilateral action determine.' . . . The theory of the Act is that free opportunity for negotiation with accredited representatives of employees is likely to promote industrial peace and may bring about the adjustments and agreements which the Act in itself does not attempt to compel." NLRB v. Jones & Laughlin Steel Corp., 301 U.S., at 45, 57 S.Ct., at 628. Cf. John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 549, 84 S.Ct. 909, 914, 11 L.Ed.2d 898 (1964) ("The objectives of national labor policy, reflected in established principles of federal law, require that the rightful prerogative of owners independently to rearrange their businesses and even eliminate themselves as employers be balanced by some protection to the employees from a sudden change in the employment relationship").
17
The employer has no obligation to abandon its intentions or to agree with union proposals. On proper subjects, it must meet with the union, provide information necessary to the union's understanding of the problem, and in good faith consider any proposals the union advances. In concluding to reject a union's position as to a mandatory subject, however, it must face the union's possible use of strike power. See generally Fleming, The Obligation to Bargain in Good Faith, 47 Va.L.Rev. 988 (1961).
18
The subjects over which mandatory bargaining has been required have changed over time. Employers and unions have been required to bargain over such diverse topics as profit-sharing plans, Winn-Dixie Stores, Inc. v. NLRB, 567 F.2d 1343 (CA5), cert. denied, 439 U.S. 985, 99 S.Ct. 576, 58 L.Ed.2d 656 (1978); layoffs and recalls, see Awrey Bakeries, Inc. v. NLRB, 548 F.2d 138 (CA6 1976); contractual clauses concerning race discrimination, see Wichita Eagle & Beacon Publishing Co., 222 N.L.R.B. 742 (1976); and "most favored nation" clauses, Dolly Madison Industries, Inc., 182 N.L.R.B. 1037 (1970). See also Borg-Warner, 356 U.S., at 353, 78 S.Ct., at 724 (Harlan, J., concurring in part and dissenting in part).
19
We are aware of past instances where unions have aided employers in saving failing businesses by lending technical assistance, reducing wages and benefits or increasing production, and even loaning part of earned wages to forestall closures. See S. Slichter, J. Healy, & E. Livernash, The Impact of Collective Bargaining on Management 845-851 (1960); C. Golden & H. Rutenberg, The Dynamics of Industrial Democracy 263-291 (1942). See also United Steel Workers of America, Local No. 1330, v. United States Steel Corp., 492 F.Supp. 1 (ND Ohio), aff'd in part and vacated in part, 631 F.2d 1264 (CA6 1980) (union sought to purchase failing plant); 104 LRR 239 (1980) (employee ownership plan instituted to save company); id., at 267-268 (union accepted pay cuts to reduce plant's financial problems). These have come about without the intervention of the Board enforcing a statutory requirement to bargain.
20
See International Assn. of Machinists & Aerospace Workers v. Northeast Airlines, Inc., 473 F.2d 549, 556-557 (CA1), cert. denied, 409 U.S. 845, 93 S.Ct. 48, 34 L.Ed.2d 85 (1972); Raskin Packing Co., 246 N.L.R.B. No. 15 (1979); M & M Transportation Co., 239 N.L.R.B. 73 (1978); Goetz, The Duty to Bargain About Changes in Operations, 1964 Duke L.J. 1, 9-10, Cf. Detroit Edison Co. v. NLRB, 440 U.S. 301, 316, 99 S.Ct. 1123, 1131, 59 L.Ed.2d 333 (1979) (noting the "danger of inadvertent leaks" in giving union confidential information).
21
See ABC Trans-National Transport, Inc. v. NLRB, 642 F.2d 675 (CA3 1981); Loomis & Herman, Management's Reserved Rights and the NLRB—An Employer's View, 19 Lab.L.J. 695 (1968); Comment, "Partial Terminations"—A Choice Between Bargaining Equality and Economic Efficiency, 14 U.C.L.A.L.Rev. 1089 (1967).
22
In this opinion we of course intimate no view as to other types of management decisions, such as plant relocations, sales, other kinds of subcontracting, automation, etc., which are to be considered on their particular facts. See, e. g., International Ladies' Garment Workers Union v. NLRB, 150 U.S.App.D.C. 71, 463 F.2d 907 (1972) (plant relocation predominantly due to labor costs); Weltronic Co. v. NLRB, 419 F.2d 1120 (CA6 1969) (decision to move plant three miles), cert. denied, 398 U.S. 938, 90 S.Ct. 1841, 26 L.Ed.2d 270 (1970); Dan Dee West Virginia Corp., 180 N.L.R.B. 534 (1970) (decision to change method of distribution, under which employee-drivers became independent contractors); Young Motor Truck Service, Inc., 156 N.L.R.B. 661 (1966) (decision to sell major portion of business). See also Schwarz, Plant Relocation or Partial Termination—The Duty to Decision-Bargain, 39 Ford.L.Rev. 81, 100-102 (1970).
23
Despite the contentions of amicus AFL-CIO our decision in Railroad Telegraphers v. Chicago & N.W.R. Co., 362 U.S. 330, 80 S.Ct. 761, 4 L.Ed.2d 774 (1960), does not require that we find bargaining over this partial closing decision mandatory. In that case, a union certified as bargaining agent for certain railroad employees requested that the railroad bargain over its decision to close down certain stations thereby eliminating a number of jobs. When the union threatened to strike over the railroad's refusal to bargain on this issue, the railroad sought an injunction in federal court. Construing
the scope of bargaining required by § 2, First, of the Railway Labor Act, 45 U.S.C. § 152, First, the Court held that the union's effort to negotiate was not "an unlawful bargaining demand," 362 U.S., at 341, 80 S.Ct., at 767, and that the District Court was precluded from enjoining the threatened strike by § 4 of the Norris-LaGuardia Act, 29 U.S.C. § 104, which deprives federal courts of "jurisdiction to issue any restraining order or temporary or permanent injunction in any case involving or growing out of any labor dispute to prohibit any person or persons participating or interested in such dispute . . . from . . . [c]easing or refusing to perform any work . . . ." Although the Court in part relied on an expansive interpretation of § 2, First, which requires railroads to "exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions," and § 13(c) of the Norris-LaGuardia Act, 29 U.S.C. § 113(c), defining "labor dispute" as "any controversy concerning terms or conditions of employment," its decision also rested on the particular aims of the Railway Labor Act and national transportation policy. See 362 U.S., at 336-338, 80 S.Ct., at 764-765. The mandatory scope of bargaining under the Railway Labor Act and the extent of the prohibition against injunctive relief contained in Norris-LaGuardia are not coextensive with the National Labor Relations Act and the Board's jurisdiction over unfair labor practices. See Chicago & N.W.R. Co. v. Transportation Union, 402 U.S. 570, 579, n. 11, 91 S.Ct. 1731, 1736, n. 11, 29 L.Ed.2d 187 (1971) ("parallels between the duty to bargain in good faith and the duty to exert every reasonable effort, like all parallels between the NLRA and the Railway Labor Act, should be drawn with the utmost care and with full awareness of the differences between the statutory schemes"). Cf. Boys Markets, Inc. v. Retail Clerks, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970); Buffalo Forge Co. v. Steelworkers, 428 U.S. 397, 96 S.Ct. 3141, 49 L.Ed.2d 1022 (1976).
*
Indeed, in this case, the Court of Appeals found: "On the record, . . . there is sufficient reason to believe that, given the opportunity, the union might have made concessions, by accepting reduction in wages or benefits (take-backs) or a reduction in the work force, which would in part or in whole have enabled Greenpark to give FNM an increased management fee. At least, if FNM had bargained over its decision to close, that possibility would have been tested, and management would still have been free to close the Greenpark operation if bargaining did not produce a solution." 627 F.2d 596, 602 (CA2 1980).
| 67
|
453 U.S. 57
101 S.Ct. 2646
69 L.Ed.2d 478
Bernard ROSTKER, Director of Selective Service, Appellant,v.Robert L. GOLDBERG et al.
No. 80-251.
Argued March 24, 1981.
Decided June 25, 1981.
Syllabus
The Military Selective Service Act (Act) authorizes the President to require the registration for possible military service of males but not females, the purpose of registration being to facilitate any eventual conscription under the Act. Registration for the draft was discontinued by Presidential Proclamation in 1975 (the Act was amended in 1973 to preclude conscription), but as the result of a crisis in Southwestern Asia, President Carter decided in 1980 that it was necessary to reactivate the registration process, and sought Congress' allocation of funds for that purpose. He also recommended that Congress amend the Act to permit the registration and conscription of women as well as men. Although agreeing that it was necessary to reactivate the registration process, Congress allocated only those funds necessary to register males and declined to amend the Act to permit the registration of women. Thereafter, the President ordered the registration of specified groups of young men. In a lawsuit brought by several men challenging the Act's constitutionality, a three-judge District Court ultimately held that the Act's gender-based discrimination violated the Due Process Clause of the Fifth Amendment and enjoined registration under the Act.
Held : The Act's registration provisions do not violate the Fifth Amendment. Congress acted well within its constitutional authority to raise and regulate armies and navies when it authorized the registration of men and not women. Pp. 64-83.
(a) The customary deference accorded Congress' judgments is particularly appropriate when, as here, Congress specifically considered the question of the Act's constitutionality, and perhaps in no area has the Court accorded Congress greater deference than in the area of national defense and military affairs. While Congress is not free to disregard the Constitution when it acts in the area of military affairs, this Court must be particularly careful not to substitute its judgment of what is desirable for that of Congress, or its own evaluation of evidence for a reasonable evaluation by the Legislative Branch. Congress carefully considered whether to register only males for potential conscription or whether to register both sexes, and its broad constitutional authoritycannot be ignored in considering the constitutionality of its studied choice of one alternative in preference to the other. Pp. 64-72.
(b) The question of registering women was extensively considered by Congress in hearings held in response to the President's request for authorization to register women, and its decision to exempt women was not the accidental byproduct of a traditional way of thinking about women. Since Congress thoroughly reconsidered the question of exempting women from the Act in 1980, the Act's constitutionality need not be considered solely on the basis of the views expressed by Congress in 1948, when the Act was first enacted in its modern form. Congress' determination that any future draft would be characterized by a need for combat troops was sufficiently supported by testimony adduced at the hearings so that the courts are not free to make their own judgment on the question. And since women are excluded from combat service by statute or military policy, men and women are simply not similarly situated for purposes of a draft or registration for a draft, and Congress' decision to authorize the registration of only men, therefore, does not violate the Due Process Clause. The testimony of executive and military officials before Congress showed that the argument for registering women was based on considerations of equity, but Congress was entitled, in the exercise of its constitutional powers, to focus on the question of military need rather than "equity." The District Court, undertaking an independent evaluation of the evidence, exceeded its authority in ignoring Congress' conclusions that whatever the need for women for noncombat roles during mobilization, it could be met by volunteers, and that staffing noncombat positions with women during a mobilization would be positively detrimental to the important goal of military flexibility. Pp. 72-83.
D.C., 509 F.Supp. 586, reversed.
Argued by Sol. Gen., Wade H. McCree, Jr., Washington, D. C., for appellant.
Donald L. Weinberg, Philadelphia, Pa., for appellees.
Justice REHNQUIST delivered the opinion of the Court.
1
The question presented is whether the Military Selective Service Act, 50 U.S.C.App. § 451 et seq. (1976 ed. and Supp. III), violates the Fifth Amendment to the United States Constitution in authorizing the President to require the registration of males and not females.
2
* Congress is given the power under the Constitution "To raise and support Armies," "To provide and maintain a Navy," and "To make Rules for the Government and Regulation of the land and naval Forces." Art. I, § 8, cls. 12-14. Pursuant to this grant of authority Congress has enacted the Military Selective Service Act, 50 U.S.C.App. § 451 et seq. (1976 ed. and Supp. III) (the MSSA or the Act). Section 3 of the Act, 62 Stat. 605, as amended, 50 U.S.C.App. § 453, empowers the President, by proclamation, to require the registration of "every male citizen" and male resident aliens between the ages of 18 and 26. The purpose of this registration is to facilitate any eventual conscription: pursuant to § 4(a) of the Act, 62 Stat. 605, as amended, 50 U.S.C.App. § 454(a), those persons required to register under § 3 are liable for training and service in the Armed Forces. The MSSA registration provision serves no other purpose beyond providing a pool for subsequent induction.
3
Registration for the draft under § 3 was discontinued in 1975. Presidential Proclamation No. 4360, 3 CFR 462 (1971-1975 Comp.), note following 50 U.S.C.App. § 453. In early 1980, President Carter determined that it was necessary to reactivate the draft registration process.1 The immediate impetus for this decision was the Soviet armed invasion of Afghanistan. 16 Weekly Comp. of Pres.Doc. 198 (1980) (State of the Union Address). According to the administration's witnesses before the Senate Armed Services Committee, the resulting crisis in Southwestern Asia convinced the President that the "time has come" "to use his present authority to require registration . . . as a necessary step to preserving or enhancing our national security interests." Department of Defense Authorization for Appropriations for Fiscal Year 1981: Hearings on S. 2294 before the Senate Committee on Armed Services, 96th Cong., 2d Sess., 1805 (1980) (hereafter Hearings on S. 2294) (joint statement of Dr. John P. White, Deputy Director, Office of Management and Budget, Dr. Bernard Rostker, Director, Selective Service System, and Richard Danzig, Principal Deputy Assistant Secretary of Defense). The Selective Service System had been inactive, however, and funds were needed before reactivating registration. The President therefore recommended that funds be transferred from the Department of Defense to the separate Selective Service System. H.R.Doc.No.96-267, p. 2 (1980). He also recommended that Congress take action to amend the MSSA to permit the registration and conscription of women as well as men. See House Committee on Armed Services, Presidential Recommendations for Selective Service Reform—A Report to Congress Prepared Pursuant to Pub.L. 96-107, 96th Cong., 2d Sess., 20-23 (Comm. Print No. 19, 1980) (hereinafter Presidential Recommendations), App. 57-61.
4
Congress agreed that it was necessary to reactivate the registration process, and allocated funds for that purpose in a Joint Resolution which passed the House on April 22 and the Senate on June 12. H.J.Res. 521, Pub.L. 96-282, 94 Stat. 552. The Resolution did not allocate all the funds originally requested by the President, but only those necessary to register males. See S.Rep.No.96-789, p. 1, n. 1, and p. 2 (1980); 126 Cong.Rec. 13895 (1980) (Sen. Nunn). Although Congress considered the question at great length, see infra, at 72-74, it declined to amend the MSSA to permit the registration of women.
5
On July 2, 1980, the President, by Proclamation, ordered the registration of specified groups of young men pursuant to the authority conferred by § 3 of the Act. Registration was to commence on July 21, 1980. Proclamation No. 4771, 3 CFR 827 (1980).
6
These events of last year breathed new life into a lawsuit which had been essentially dormant in the lower courts for nearly a decade. It began in 1971 when several men subject to registration for the draft and subsequent induction into the Armed Services filed a complaint in the United States District Court for the Eastern District of Pennsylvania challenging the MSSA on several grounds.2 A three-judge District Court was convened in 1974 to consider the claim of unlawful gender-based discrimination which is now before us.3 On July 1, 1974, the court declined to dismiss the case as moot, reasoning that although authority to induct registrants had lapsed, see n. 1, supra, plaintiffs were still under certain affirmative obligations in connection with registration. Rowland v. Tarr, 378 F.Supp. 766. Nothing more happened in the case for five years. Then, on June 6, 1979, the court Clerk, acting pursuant to a local rule governing inactive cases, proposed that the case be dismissed. Additional discovery thereupon ensued, and defendants moved to dismiss on various justiciability grounds. The court denied the motion to dismiss, ruling that it did not have before it an adequate record on the operation of the Selective Service System and what action would be necessary to reactivate it. Goldberg v. Tarr, 510 F.Supp. 292 (1980). On July 1, 1980, the court certified a plaintiff class of "all male persons who are registered or subject to registration under 50 U.S.C.App. § 453 or are liable for training and service in the armed forces of the United States under 50 U.S.C.App. §§ 454, 456(h) and 467(c)." 509 F.Supp. 586, 589.4
7
On Friday, July 18, 1980, three days before registration was to commence, the District Court issued an opinion finding that the Act violated the Due Process Clause of the Fifth Amendment and permanently enjoined the Government from requiring registration under the Act. The court initially determined that the plaintiffs had standing and that the case was ripe, determinations which are not challenged here by the Government. Turning to the merits, the court rejected plaintiffs' suggestions that the equal protection claim should be tested under "strict scrutiny," and also rejected defendants' argument that the deference due Congress in the area of military affairs required application of the traditional "minimum scrutiny" test. Applying the "important government interest" test articulated in Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976), the court struck down the MSSA. The court stressed that it was not deciding whether or to what extent women should serve in combat, but only the issue of registration, and felt that this "should dispel any concern that we are injecting ourselves in an inappropriate manner into military affairs." 509 F.Supp., at 597. See also id., at 599, nn. 17 and 18. The court then proceeded to examine the testimony and hearing evidence presented to Congress by representatives of the military and the Executive Branch, and concluded on the basis of this testimony that "military opinion, backed by extensive study, is that the availability of women registrants would materially increase flexibility, not hamper it." Id., at 603. It rejected Congress' contrary determination in part because of what it viewed as Congress' "inconsistent positions" in declining to register women yet spending funds to recruit them and expand their opportunities in the military. Ibid. The Director of Selective Service immediately filed a notice of appeal and the next day, Saturday, July 19, 1980, Justice BRENNAN, acting in his capacity as Circuit Justice for the Third Circuit, stayed the District Court's order enjoining commencement of registration. 448 U.S. 1306, 101 S.Ct. 1, 65 L.Ed.2d 1098. Registration began the next Monday. On December 1, 1980, we noted probable jurisdiction. 449 U.S. 1009, 101 S.Ct. 563, 66 L.Ed.2d 467.
II
8
Whenever called upon to judge the constitutionality of an Act of Congress—"the gravest and most delicate duty that this Court is called upon to perform," Blodgett v. Holden, 275 U.S. 142, 148, 48 S.Ct. 105, 107, 72 L.Ed. 206 (1927) (Holmes, J.)—the Court accords "great weight to the decisions of Congress." Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 102, 93 S.Ct. 2080, 2086, 36 L.Ed.2d 772 (1973). The Congress is a coequal branch of government whose Members take the same oath we do to uphold the Constitution of the United States. As Justice Frankfurter noted in Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 164, 71 S.Ct. 624, 644, 95 L.Ed. 817 (1951) (concurring opinion), we must have "due regard to the fact that this Court is not exercising a primary judgment but is sitting in judgment upon those who also have taken the oath to observe the Constitution and who have the responsibility for carrying on government." The customary deference accorded the judgments of Congress is certainly appropriate when, as here, Congress specifically considered the question of the Act's constitutionality. See, e. g., S.Rep.No.96-826, pp. 159-161 (1980); 126 Cong.Rec. 13880-13882 (1980) (Sen. Warner); id., at 13896 (Sen. Hatfield).
9
This is not, however, merely a case involving the customary deference accorded congressional decisions. The case arises in the context of Congress' authority over national defense and military affairs, and perhaps in no other area has the Court accorded Congress greater deference. In rejecting the registration of women, Congress explicitly relied upon its constitutional powers under Art. I, § 8, cls. 12-14. The "specific findings" section of the Report of the Senate Armed Services Committee, later adopted by both Houses of Congress, began by stating:
10
"Article I, section 8 of the Constitution commits exclusively to the Congress the powers to raise and support armies, provide and maintain a Navy, and make rules for Government and regulation of the land and naval forces, and pursuant to these powers it lies within the discretion of the Congress to determine the occasions for expansion of our Armed Forces, and the means best suited to such expansion should it prove necessary." S.Rep.No.96-826, supra, at 160, U.S.Code Cong. & Admin.News 1980, 2650.
11
See also S.Rep.No.96-226, p. 8 (1979). This Court has consistently recognized Congress' "broad constitutional power" to raise and regulate armies and navies, Schlesinger v. Ballard, 419 U.S. 498, 510, 95 S.Ct. 572, 578, 42 L.Ed.2d 610 (1975). As the Court noted in considering a challenge to the selective service laws: "The constitutional power of Congress to raise and support armies and to make all laws necessary and proper to that end is broad and sweeping." United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968). See Lichter v. United States, 334 U.S. 742, 755, 68 S.Ct. 1294, 1301, 92 L.Ed. 1694 (1948).
12
Not only is the scope of Congress' constitutional power in this area broad, but the lack of competence on the part of the courts is marked. In Gilligan v. Morgan, 413 U.S. 1, 10, 93 S.Ct. 2440, 2446, 37 L.Ed.2d 407 (1973), the Court noted:
13
"[I]t is difficult to conceive of an area of governmental activity in which the courts have less competence. The complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments, subject always to civilian control of the Legislative and Executive Branches."
14
See also Orloff v. Willoughby, 345 U.S. 83, 93-94, 73 S.Ct. 534, 540, 97 L.Ed. 842 (1953).5
15
The operation of a healthy deference to legislative and executive judgments in the area of military affairs is evident in several recent decisions of this Court. In Parker v. Levy, 417 U.S. 733, 756, 758, 94 S.Ct. 2547, 2561, 2563, 41 L.Ed.2d 439 (1974), the Court rejected both vagueness and overbreadth challenges to provisions of the Uniform Code of Military Justice, noting that "Congress is permitted to legislate both with greater breadth and with greater flexibility" when the statute governs military society, and that "[w]hile the members of the military are not excluded from the protection granted by the First Amendment, the different character of the military community and of the military mission requires a different application of those protections." In Middendorf v. Henry, 425 U.S. 25, 96 S.Ct. 1281, 47 L.Ed.2d 556 (1976), the Court noted that in considering due process claims in the context of a summary court-martial it "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," concerning what rights were available. Id., at 43, 96 S.Ct., at 1291. See also id., at 49-50, 96 S.Ct., at 1294-1295 (POWELL, J., concurring). Deference to the judgment of other branches in the area of military affairs also played a major role in Greer v. Spock, 424 U.S. 828, 837-838, 96 S.Ct. 1211, 1217, 47 L.Ed.2d 505 (1976), where the Court upheld a ban on political speeches by civilians on a military base, and Brown v. Glines, 444 U.S. 348, 100 S.Ct. 594, 62 L.Ed.2d 540 (1980), where the Court upheld regulations imposing a prior restraint on the right to petition of military personnel. See also Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953); United States v. MacIntosh, 283 U.S. 605, 622, 51 S.Ct. 570, 574, 75 L.Ed. 1302 (1931).
16
In Schlesinger v. Ballard, supra, the Court considered a due process challenge, brought by males, to the Navy policy of according females a longer period than males in which to attain promotions necessary to continued service. The Court distinguished previous gender-based discriminations held unlawful in Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971), and Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973). In those cases, the classifications were based on "overbroad generalizations." See 419 U.S., at 506-507, 95 S.Ct., at 576-577. In the case before it, however, the Court noted:
17
"[T]he different treatment of men and women naval officers . . . reflects, not archaic and overbroad generalizations, but, instead, the demonstrable fact that male and female line officers in the Navy are not similarly situated with respect to opportunities for professional service. Appellee has not challenged the current restrictions on women officers' participation in combat and in most sea duty." Id., at 508, 95 S.Ct., at 577.
18
In light of the combat restrictions, women did not have the same opportunities for promotion as men, and therefore it was not unconstitutional for Congress to distinguish between them.
19
None of this is to say that Congress is free to disregard the Constitution when it acts in the area of military affairs. In that area, as any other, Congress remains subject to the limitations of the Due Process Clause, see Ex parte Milligan, 4 Wall. 2, 18 L.Ed. 281 (1866); Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146, 156, 40 S.Ct. 106, 108, 64 L.Ed. 194 (1919), but the tests and limitations to be applied may differ because of the military context. We of course do not abdicate our ultimate responsibility to decide the constitutional question, but simply recognize that the Constitution itself requires such deference to congressional choice. See Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S., at 103, 93 S.Ct., at 2087. In deciding the question before us we must be particularly careful not to substitute our judgment of what is desirable for that of Congress, or our own evaluation of evidence for a reasonable evaluation by the Legislative Branch.
20
The District Court purported to recognize the appropriateness of deference to Congress when that body was exercising its constitutionally delegated authority over military affairs, 509 F.Supp., at 596, but it stressed that "[w]e are not here concerned with military operations or day-to-day conduct of the military into which we have no desire to intrude." Ibid. Appellees also stress that this case involves civilians, not the military, and that "the impact of registration on the military is only indirect and attenuated." Brief for Appellees 19 (emphasis omitted). We find these efforts to divorce registration from the military and national defense context, with all the deference called for in that context, singularly unpersuasive. United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), recognized the broad deference due Congress in the selective service area before us in this case. Registration is not an end in itself in the civilian world but rather the first step in the induction process into the military one, and Congress specifically linked its consideration of registration to induction, see, e. g., S.Rep.No.96-826, pp. 156, 160 (1980). Congressional judgments concerning registration and the draft are based on judgments concerning military operations and needs, see e. g., id., at 157, U.S.Code Cong. & Admin.News 1980, 2647 ("the starting point for any discussion of the appropriateness of registering women for the draft is the question of the proper role of women in combat"), and the deference unquestionably due the latter judgments is necessarily required in assessing the former as well. Although the District Court stressed that it was not intruding on military questions, its opinion was based on assessments of military need and flexibility in a time of mobilization. See, e. g., 509 F.Supp., at 600-605. It would be blinking reality to say that our precedents requiring deference to Congress in military affairs are not implicated by the present case.6
21
The Solicitor General argues, largely on the basis of the foregoing cases emphasizing the deference due Congress in the area of military affairs and national security, that this Court should scrutinize the MSSA only to determine if the distinction drawn between men and women bears a rational relation to some legitimate Government purpose, see U.S. Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 101 S.Ct. 453, 66 L.Ed.2d 368 (1980), and should not examine the Act under the heightened scrutiny with which we have approached gender-based discrimination, see Michael M. v. Superior Court of Sonoma County, 450 U.S. 464, 101 S.Ct. 1200, 67 L.Ed.2d 437 (1981); Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976); Reed v. Reed, supra.7 We do not think that the substantive guarantee of due process or certainty in the law will be advanced by any further "refinement" in the applicable tests as suggested by the Government. Announced degrees of "deference" to legislative judgments, just as levels of "scrutiny" which this Court announces that it applies to particular classifications made by a legislative body, may all too readily become facile abstractions used to justify a result. In this case the courts are called upon to decide whether Congress, acting under an explicit constitutional grant of authority, has by that action transgressed an explicit guarantee of individual rights which limits the authority so conferred. Simply labeling the legislative decision "military" on the one hand or "gender-based" on the other does not automatically guide a court to the correct constitutional result.
22
No one could deny that under the test of Craig v. Boren, supra, the Government's interest in raising and supporting armies is an "important governmental interest." Congress and its Committees carefully considered and debated two alternative means of furthering that interest: the first was to register only males for potential conscription, and the other was to register both sexes. Congress chose the former alternative. When that decision is challenged on equal protection grounds, the question a court must decide is not which alternative it would have chosen, had it been the primary decisionmaker, but whether that chosen by Congress denies equal protection of the laws.
23
Nor can it be denied that the imposing number of cases from this Court previously cited suggest that judicial deference to such congressional exercise of authority is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged. As previously noted, supra, at 67, deference does not mean abdication. The reconciliation between the deference due Congress and our own constitutional responsibility is perhaps best instanced in Schlesinger v. Ballard, 419 U.S., at 510, 95 S.Ct., at 578, where we stated:
24
"This Court has recognized that 'it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise.' [U. S. ex rel.] Toth v. Quarles, 350 U.S. 11, 17 [76 S.Ct. 1, 5, 100 L.Ed. 8]. See also Orloff v. Willoughby, 345 U.S. 83, 94 [73 S.Ct. 534, 540, 97 L.Ed. 842]. The responsibility for determining how best our Armed Forces shall attend to that business rests with Congress, see U.S.Const. Art. I, § 8, cls. 12-14, and with the President. See U.S.Const., Art. II, § 2, cl. 1. We cannot say that, in exercising its broad constitutional power here, Congress has violated the Due Process Clause of the Fifth Amendment."
25
Or, as put a generation ago in a case not involving any claim of gender-based discrimination:
26
"[J]udges are not given the task of running the Army. The responsibility for setting up channels through which . . . grievances can be considered and fairly settled rests upon the Congress and upon the President of the United States and his subordinates. The Military constitutes a specialized community governed by a separate discipline from that of the civilian. Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters." Orloff v. Willoughby, 345 U.S., at 93-94, 73 S.Ct., at 540.
27
Schlesinger v. Ballard did not purport to apply a different equal protection test because of the military context, but did stress the deference due congressional choices among alternatives in exercising the congressional authority to raise and support armies and make rules for their governance. In light of the floor debate and the Report of the Senate Armed Services Committee hereinafter discussed, it is apparent that Congress was fully aware not merely of the many facts and figures presented to it by witnesses who testified before its Committees, but of the current thinking as to the place of women in the Armed Services. In such a case, we cannot ignore Congress' broad authority conferred by the Constitution to raise and support armies when we are urged to declare unconstitutional its studied choice of one alternative in preference to another for furthering that goal.
III
28
This case is quite different from several of the gender-based discrimination cases we have considered in that, despite appellees' assertions, Congress did not act "unthinkingly" or "reflexively and not for any considered reason." Brief for Appellees 35. The question of registering women for the draft not only received considerable national attention and was the subject of wide-ranging public debate, but also was extensively considered by Congress in hearings, floor debate, and in committee. Hearings held by both Houses of Congress in response to the President's request for authorization to register women adduced extensive testimony and evidence concerning the issue. See Hearings on S. 2294; Hearings on H.R. 6569, Registration of Women, before the Subcommittee on Military Personnel of the House Committee on Armed Services, 96th Cong., 2d Sess. (1980) (hereafter House Hearings). These hearings built on other hearings held the previous year addressed to the same question.8
29
The House declined to provide for the registration of women when it passed the Joint Resolution allocating funds for the Selective Service System. See 126 Cong.Rec. 8601-8602, 8620 (1980). When the Senate considered the Joint Resolution, it defeated, after extensive debate, an amendment which in effect would have authorized the registration of women. Id., at 13876-13898.9 As noted earlier, Congress in H.J.Res. 521 only authorized funds sufficient to cover the registration of males. The Report of the Senate Committee on Appropriations on H.J.Res. 521 noted that the amount authorized was below the President's request "due to the Committee's decision not to provide $8,500,000 to register women," and that "[t]he amount recommended by the Committee would allow for registration of young men only." S.Rep.No.96-789, p. 2 (1980); see 126 Cong.Rec. 13895 (1980) (Sen. Nunn).
30
While proposals to register women were being rejected in the course of transferring funds to register males, Committees in both Houses which had conducted hearings on the issue were also rejecting the registration of women. The House Subcommittee on Military Personnel of the House Armed Services Committee tabled a bill which would have amended the MSSA to authorize registration of women, H.R. 6569, on March 6, 1980. Legislative Calendar, House Committee on Armed Services, 96th Cong., 2d Sess., 58 (1979-1980). The Senate Armed Services Committee rejected a proposal to register women, S. 2440, as it had one year before, see S.Rep.No.96-226, pp. 8-9 (1979), and adopted specific findings supporting its action. See S.Rep.No.96-826, pp. 156-161 (1980). These findings were stressed in debate in the Senate on Joint Resolution 521, see 126 Cong.Rec. 13893-13894 (1980) (Sen. Nunn); id., at 13880-13881 (Sen. Warner). They were later specifically endorsed by House and Senate conferees considering the Fiscal Year 1981 Defense Authorization Bill. See S.Conf.Rep.No.96-895, p. 100 (1980), U.S.Code Cong. & Admin.News 1980, 2612.10 Later both Houses adopted the findings by passing the Report. 126 Cong.Rec. 23126, 23261 (1980). The Senate Report, therefore, is considerably more significant than a typical report of a single House, and its findings are in effect findings of the entire Congress.
31
The foregoing clearly establishes that the decision to exempt women from registration was not the " 'accidental by-product of a traditional way of thinking about females.' " Califano v. Webster, 430 U.S. 313, 320, 97 S.Ct. 1192, 1196, 51 L.Ed.2d 360 (1977) (quoting Califano v. Goldfarb, 430 U.S. 199, 223, 97 S.Ct. 1021, 1035, 51 L.Ed.2d 270 (1977) (STEVENS, J., concurring in judgment)). In Michael M., supra, 450 U.S., at 471, n.6, 101 S.Ct., at 1205, n.6 (plurality opinion), we rejected a similar argument because of action by the California Legislature considering and rejecting proposals to make a statute challenged on discrimination grounds gender-neutral. The cause for rejecting the argument is considerably stronger here. The issue was considered at great length, and Congress clearly expressed its purpose and intent. Contrast Califano v. Westcott, 443 U.S. 76, 87, 99 S.Ct. 2655, 2662, 61 L.Ed.2d 382 (1979) ("The gender qualification . . . escaped virtually unnoticed in the hearings and floor debates").11
32
For the same reasons we reject appellees' argument that we must consider the constitutionality of the MSSA solely on the basis of the views expressed by Congress in 1948, when the MSSA was first enacted in its modern form. Contrary to the suggestions of appellees and various amici, reliance on the legislative history of Joint Resolution 521 and the activity of the various Committees of the 96th Congress considering the registration of women does not violate sound principles that appropriations legislation should not be considered as modifying substantive legislation. Congress did not change the MSSA in 1980, but it did thoroughly reconsider the question of exempting women from its provisions, and its basis for doing so. The 1980 legislative history is, therefore, highly relevant in assessing the constitutional validity of the exemption.
33
The MSSA established a plan for maintaining "adequate armed strength . . . to insure the security of [the] Nation." 50 U.S.C.App. § 451(b). Registration is the first step "in a united and continuous process designed to raise an army speedily and efficiently," Falbo v. United States, 320 U.S. 549, 553, 64 S.Ct. 346, 348, 88 L.Ed. 305 (1944), see United States v. Nugent, 346 U.S. 1, 9, 73 S.Ct. 991, 996, 97 L.Ed. 1417 (1953), and Congress provided for the reactivation of registration in order to "provid[e] the means for the early delivery of inductees in an emergency." S.Rep.No.96-826, supra, at 156, U.S.Code Cong. & Admin.News 1980, 2646. Although the three-judge District Court often tried to sever its consideration of registration from the particulars of induction, see, e. g., 509 F.Supp., at 604-605, Congress rather clearly linked the need for renewed registration with its views on the character of a subsequent draft. The Senate Report specifically found that "[a]n ability to mobilize rapidly is essential to the preservation of our national security. . . . A functioning registration system is a vital part of any mobilization plan." S.Rep.No.96-826, supra, at 160, U.S.Code Cong. & Admin.News 1980, 2650. As Senator Warner put it, "I equate registration with the draft." Hearings on S. 2294, at 1197. See also id., at 1195 (Sen. Jepsen), 1671 (Sen. Exon). Such an approach is certainly logical, since under the MSSA induction is interlocked with registration: only those registered may be drafted, and registration serves no purpose beyond providing a pool for the draft. Any assessment of the congressional purpose and its chosen means must therefore consider the registration scheme as a prelude to a draft in a time of national emergency. Any other approach would not be testing the Act in light of the purposes Congress sought to achieve.
34
Congress determined that any future draft, which would be facilitated by the registration scheme, would be characterized by a need for combat troops. The Senate Report explained, in a specific finding later adopted by both Houses, that "[i]f mobilization were to be ordered in a wartime scenario, the primary manpower need would be for combat replacements." S.Rep.No.96-826, p. 160 (1980), U.S.Code Cong. & Admin.News 1980, 2650; see id., at 158. This conclusion echoed one made a year before by the same Senate Committee, see S.Rep.No.96-226, pp. 2-3, 6 (1979). As Senator Jepsen put it, "the shortage would be in the combat arms. That is why you have drafts." Hearings on S. 2294, at 1688. See also id., at 1195 (Sen. Jepsen); 126 Cong.Rec. 8623 (1980) (Rep. Nelson). Congress' determination that the need would be for combat troops if a draft took place was sufficiently supported by testimony adduced at the hearings so that the courts are not free to make their own judgment on the question. See Hearings on S. 2294, at 1528-1529 (Marine Corps Lt. Gen. Bronars); 1395 (Principal Deputy Assistant Secretary of Army Clark); 1391 (Lt. Gen. Yerks); 748 (Gen. Meyer); House Hearings 17 (Assistant Secretary of Defense for Manpower Pirie). See also hearing on S. 109 and S. 226, at 24, 54 (Gen. Rogers). The purpose of registration, therefore, was to prepare for a draft of combat troops.
35
Women as a group, however, unlike men as a group, are not eligible for combat. The restrictions on the participation of women in combat in the Navy and Air Force are statutory. Under 10 U.S.C. § 6015 (1976 ed., Supp. III), "women may not be assigned to duty on vessels or in aircraft that are engaged in combat missions," and under 10 U.S.C. § 8549 female members of the Air Force "may not be assigned to duty in aircraft engaged in combat missions." The Army and Marine Corps preclude the use of women in combat as a matter of established policy. See App. 86, 34, 58. Congress specifically recognized and endorsed the exclusion of women from combat in exempting women from registration. In the words of the Senate Report:
36
"The principle that women should not intentionally and routinely engage in combat is fundamental, and enjoys wide support among our people. It is universally supported by military leaders who have testified before the Committee. . . . Current law and policy exclude women from being assigned to combat in our military forces, and the Committee reaffirms this policy." S.Rep.No.96-826, supra, at 157, U.S.Code Cong. & Admin.News 1980, 2647.
37
The Senate Report specifically found that "[w]omen should not be intentionally or routinely placed in combat positions in our military services." Id., at 160, U.S.Code Cong. & Admin.News 1980, 2650. See S.Rep.No.96-226, supra, at 9.12 The President expressed his intent to continue the current military policy precluding women from combat, see Presidential Recommendations 3, App. 34, and appellees present their argument concerning registration against the background of such restrictions on the use of women in combat.13 Consistent with the approach of this Court in Schlesinger v. Ballard, 419 U.S. 498, 95 S.Ct. 572, 42 L.Ed.2d 610 (1975), we must examine appellees' constitutional claim concerning registration with these combat restrictions firmly in mind.
38
The existence of the combat restrictions clearly indicates the basis for Congress' decision to exempt women from registration. The purpose of registration was to prepare for a draft of combat troops. Since women are excluded from combat, Congress concluded that they would not be needed in the event of a draft, and therefore decided not to register them. Again turning to the Senate Report:
39
"In the Committee's view, the starting point for any discussion of the appropriateness of registering women for the draft is the question of the proper role of women in combat. . . . The policy precluding the use of women in combat is, in the Committee's view, the most important reason, for not including women in a registration system." S.Rep.No.96-826, supra, at 157, U.S.Code Cong. & Admin.News 1980, 2647.14
40
The District Court stressed that the military need for women was irrelevant to the issue of their registration. As that court put it: "Congress could not constitutionally require registration under the MSSA of only black citizens or only white citizens, or single out any political or religious group simply because those groups contain sufficient persons to fill the needs of the Selective Service System." 509 F.Supp., at 596. This reasoning is beside the point. The reason women are exempt from registration is not because military needs can be met by drafting men. This is not a case of Congress arbitrarily choosing to burden one of two similarly situated groups, such as would be the case with an all-black or all-white, or an all-Catholic or all-Lutheran, or an all-Republican or all-Democratic registration. Men and women, because of the combat restrictions on women, are simply not similarly situated for purposes of a draft or registration for a draft.
41
Congress' decision to authorize the registration of only men, therefore, does not violate the Due Process Clause. The exemption of women from registration is not only sufficiently but also closely related to Congress' purpose in authorizing registration. See Michael M., 450 U.S., at 472-473, 101 S.Ct., at 1206 (plurality opinion); Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976); Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971). The fact that congress and the Executive have decided that women should not serve in combat fully justifies Congress in not authorizing their registration, since the purpose of registration is to develop a pool of potential combat troops. As was the case in Schlesinger v. Ballard, supra, "the gender classification is not invidious, but rather realistically reflects the fact that the sexes are not similarly situated" in this case. Michael M., supra, at 469, 101 S.Ct., at 1204 (plurality opinion). The Constitution requires that Congress treat similarly situated persons similarly, not that it engage in gestures of superficial equality.
42
In holding the MSSA constitutionally invalid the District Court relied heavily on the President's decision to seek authority to register women and the testimony of members of the Executive Branch and the military in support of that decision. See, e. g., 509 F.Supp., at 603-604, and n. 30. As stated by the administration's witnesses before Congress, however, the President's "decision to ask for authority to register women is based on equity." House Hearings 7 (statement of Assistant Secretary of Defense Pirie and Director of Selective Service System Rostker); see also Presidential Recommendations 3, 21, 22, App. 35, 59, 60; Hearings on S. 2294, at 1657 (statements of Executive Associate Director of Office of Management and Budget Wellford, Director of Selective Service System Rostker, and Principal Deputy Assistant Secretary of Defense Danzig). This was also the basis for the testimony by military officials. Id., at 710 (Gen. Meyer), 1002 (Gen. Allen). The Senate Report, evaluating the testimony before the Committee, recognized that "[t]he argument for registration and induction of women . . . is not based on military necessity, but on consideration of equity." S.Rep.No.96-826, p. 158 (1980), U.S.Code Cong. & Admin.News 1980, 2648. Congress was certainly entitled, in the exercise of its constitutional powers to raise and regulate armies and navies, to focus on the question of military need rather than "equity."15 As Senator Nunn of the Senate Armed Services Committee put it:
43
"Our committee went into very great detail. We found that there was no military necessity cited by any witnesses for the registration of females.
44
"The main point that those who favored the registration of females made was that they were in favor of this because of the equality issue, which is, of course, a legitimate view. But as far as military necessity, and that is what we are primarily, I hope, considering in the overall registration bill, there is no military necessity for this." 126 Cong.Rec. 13893 (1980).
45
See also House Hearings 20 (Rep. Holt) ("You are talking about equity. I am talking about military").16
46
Although the military experts who testified in favor of registering women uniformly opposed the actual drafting of women, see, e. g., Hearing on S. 109 and S. 226, at 11 (Gen. Rogers), there was testimony that in the event of a draft of 650,000 the military could absorb some 80,000 female inductees. Hearings on S. 2294, at 1661, 1828. The 80,000 would be used to fill noncombat positions, freeing men to go to the front. In relying on this testimony in striking down the MSSA, the District Court, palpably exceeded its authority when it ignored Congress' considered response to this line of reasoning.
47
In the first place, assuming that a small number of women could be drafted for noncombat roles, Congress simply did not consider it worth the added burdens of including women in draft and registration plans. "It has been suggested that all women be registered, but only a handful actually be inducted in an emergency. The Committee finds this a confused and ultimately unsatisfactory solution." S.Rep.No.96-826, supra, at 158, U.S.Code Cong. & Admin.News 1980, 2648. As the Senate Committee recognized a year before, "training would be needlessly burdened by women recruits who could not be used in combat." S.Rep.No.96-226, p. 9 (1979). See also S.Rep.No.96-826, supra, at 159, U.S.Code Cong. & Admin.News 1980, 2649. ("Other administrative problems such as housing and different treatment with regard to dependency, hardship and physical standards would also exist"). It is not for this Court to dismiss such problems as insignificant in the context of military preparedness and the exigencies of a future mobilization.
48
Congress also concluded that whatever the need for women for noncombat roles during mobilization, whether 80,000 or less, it could be met by volunteers. See id., at 160; id., at 158 ("Because of the combat restrictions, the need would be primarily for men, and women volunteers would fill the requirements for women"); House Hearings 19 (Rep. Holt). See also Hearings on S. 2294, at 1195 (Gen. Rogers).
49
Most significantly, Congress determined that staffing noncombat positions with women during a mobilization would be positively detrimental to the important goal of military flexibility.
50
". . . [T]here are other military reasons that preclude very large numbers of women from serving. Military flexibility requires that a commander be able to move units or ships quickly. Units or ships not located at the front or not previously scheduled for the front nevertheless must be able to move into action if necessary. In peace and war, significant rotation of personnel is necessary. We should not divide the military into two groups—one in permanent combat and one in permanent support. Large numbers of non-combat positions must be available to which combat troops can return for duty before being redeployed." S.Rep.No.96-826, supra, at 158, U.S.Code Cong. & Admin.News, 1980, 2648.
51
The point was repeated in specific findings, id., at 160; see also S.Rep.No.96-226, supra, at 9. In sum, Congress carefully evaluated the testimony that 80,000 women conscripts could be usefully employed in the event of a draft and rejected it in the permissible exercise of its constitutional responsibility. See also Hearing on S. 109 and S. 226, at 16 (Gen. Rogers);17 Hearings on S. 2294, at 1682. The District Court was quite wrong in undertaking an independent evaluation of this evidence, rather than adopting an appropriately deferential examination of Congress' evaluation of that evidence.
52
In light of the foregoing, we conclude that Congress acted well within its constitutional authority when it authorized the registration of men, and not women, under the Military Selective Service Act. The decision of the District Court holding otherwise is accordingly
53
Reversed.
54
Justice WHITE, with whom Justice BRENNAN joins, dissenting.
55
I assume what has not been challenged in this case—that excluding women from combat positions does not offend the Constitution. Granting that, it is self-evident that if during mobilization for war, all noncombat military positions must be filled by combat-qualified personnel available to be moved into combat positions, there would be no occasion whatsoever to have any women in the Army, whether as volunteers or inductees. The Court appears to say, ante, at 76-77, that Congress concluded as much and that we should accept that judgment even though the serious view of the Executive Branch, including the responsible military services, is to the contrary. The Court's position in this regard is most unpersuasive. I perceive little, if any, indication that Congress itself concluded that every position in the military, no matter how far removed from combat, must be filled, with combat-ready men. Common sense and experience in recent wars, where women volunteers were employed in substantial numbers, belie this view of reality. It should not be ascribed to Congress, particularly in the face of the testimony of military authorities, hereafter referred to, that there would be a substantial number of positions in the services that could be filled by women both in peacetime and during mobilization, even though they are ineligible for combat.
56
I would also have little difficulty agreeing to a reversal if all the women who could serve in wartime without adversely affecting combat readiness could predictably be obtained through volunteers. In that event, the equal protection component of the Fifth Amendment would not require the United States to go through, and a large segment of the population to be burdened with, the expensive and essentially useless procedure of registering women. But again I cannot agree with the Court, see ante, at 81, that Congress concluded or that the legislative record indicates that each of the services could rely on women volunteers to fill all the positions for which they might be eligible in the event of mobilization. On the contrary, the record as I understand it, supports the District Court's finding that the services would have to conscript at least 80,000 persons to fill positions for which combat-ready men would not be required. The consistent position of the Defense Department representatives was that their best estimate of the number of women draftees who could be used productively by the services in the event of a major mobilization would be approximately 80,000 over the first six months. See Hearings on S. 2294 before the Senate Committee on Armed Services, 96th Cong., 2d Sess., 1681, 1688 (1980); Hearings on H.R. 6569 before the Subcommittee on Military Personnel of the House Committee on Armed Services, 96th Cong., 2d Sess., 16 (1980). This number took into account the estimated number of women volunteers, see Deposition of Director of Selective Service Bernard Rostker 8; Deposition of Principal Deputy Assistant Secretary of Defense Richard Danzig, App. 276. Except for a single, unsupported, and ambiguous statement in the Senate Report to the effect that "women volunteers would fill the requirements for women," there is no indication that Congress rejected the Defense Department's figures or relied upon an alternative set of figures.
57
Of course, the division among us indicates that the record in this respect means different things to different people, and I would be content to vacate the judgment below and remand for further hearings and findings on this crucial issue. Absent that, however, I cannot agree that the record supports the view that all positions for which women would be eligible in wartime could and would be filled by female volunteers.
58
The Court also submits that because the primary purpose of registration and conscription is to supply combat troops and because the great majority of noncombat positions must be filled by combat-trained men ready to be rotated into combat, the absolute number of positions for which women would be eligible is so small as to be de minimis and of no moment for equal protection purposes, especially in light of the administrative burdens involved in registering all women of suitable age. There is some sense to this; but at least on the record before us, the number of women who could be used in the military without sacrificing combat readiness is not at all small or insubstantial, and administrative convenience has not been sufficient justification for the kind of outright gender-based discrimination involved in registering and conscripting men but no women at all.
59
As I understand the record, then, in order to secure the personnel it needs during mobilization, the Government cannot rely on volunteers and must register and draft not only to fill combat positions and those noncombat positions that must be filled by combat-trained men, but also to secure the personnel needed for jobs that can be performed by persons ineligible for combat without diminishing military effectiveness. The claim is that in providing for the latter category of positions, Congress is free to register and draft only men. I discern no adequate justification for this kind of discrimination between men and women. Accordingly, with all due respect, I dissent.
60
Justice MARSHALL, with whom Justice BRENNAN joins, dissenting.
61
The Court today places its imprimatur on one of the most potent remaining public expressions of "ancient canards about the proper role of women," Phillips v. Martin Marietta Corp., 400 U.S. 542, 545, 91 S.Ct. 496, 498, 27 L.Ed.2d 613 (1971) (MARSHALL, J., concurring). It upholds a statute that requires males but not females to register for the draft, and which thereby categorically excludes women from a fundamental civic obligation. Because I believe the Court's decision is inconsistent with the Constitution's guarantee of equal protection of the laws, I dissent.
62
* A.
63
The background to this litigation is set out in the opinion of the Court, ante, at 59-64, and I will not repeat that discussion here. It bears emphasis, however, that the only question presented by this case is whether the exclusion of women from registration under the Military Selective Service Act, 50 U.S.C.App. § 451 et seq. (1976 ed. and Supp. III) (MSSA), contravenes the equal protection component of the Due Process Clause of the Fifth Amendment. Although the purpose of registration is to assist preparations for drafting civilians into the military, we are not asked to rule on the constitutionality of a statute governing conscription.1 With the advent of the All-Volunteer Armed Forces, the MSSA was specifically amended to preclude conscription as of July 1, 1973, Pub.L. 92-129, § 101(a)(35), 85 Stat. 353, 50 U.S.C.App. § 467(c), and reactivation of the draft would therefore require a legislative amendment. See S.Rep.No. 96-826, p. 155 (1980). Consequently, we are not called upon to decide whether either men or women can be drafted at all, whether they must be drafted in equal numbers, in what order they should be drafted, or, once inducted, how they are to be trained for their respective functions. In addition, this case does not involve a challenge to the statutes or policies that prohibit female members of the Armed Forces from serving in combat.2 It is with this understanding that I turn to the task at hand.
B
64
By now it should be clear that statutes like the MSSA, which discriminate on the basis of gender, must be examined under the "heightened" scrutiny mandated by Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976).3 Under this test, a gender-based classification cannot withstand constitutional challenge unless the classification is substantially related to the achievement of an important governmental objective. Kirchberg v. Feenstra, 450 U.S. 455, 459, 459-460, 101 S.Ct. 1195, 1198, 1198-1199, 67 L.Ed.2d 428 (1981); Wengler v. Druggist Mutual Ins. Co., 446 U.S. 142, 150, 100 S.Ct. 1540, 1545, 64 L.Ed.2d 107 (1980); Califano v. Westcott, 443 U.S. 76, 84, 99 S.Ct. 2655, 2660-2661, 61 L.Ed.2d 382 (1979); Orr v. Orr, 440 U.S. 268, 278, 99 S.Ct. 1102, 1111, 59 L.Ed.2d 306 (1979); Craig v. Boren, supra, 429 U.S., at 197, 97 S.Ct., at 456. This test applies whether the classification discriminates against males or females. Caban v. Mohammed, 441 U.S. 380, 391, 99 S.Ct. 1760, 1767-1768, 60 L.Ed.2d 297 (1979); Orr v. Orr, supra, 440 U.S., at 278-279, 99 S.Ct., at 1111; Craig v. Boren, supra, 429 U.S., at 204, 97 S.Ct., at 460.4 The party defending the challenged classification carries the burden of demonstrating both the importance of the governmental objective it serves and the substantial relationship between the discriminatory means and the asserted end. See Wengler v. Druggist Mutual Ins. Co., supra, 446 U.S., at 151, 100 S.Ct., at 1546; Caban v. Mohammed, supra, 441 U.S., at 393, 99 S.Ct., at 1769; Craig v. Boren, supra, 429 U.S., at 204, 97 S.Ct., at 460. Consequently, before we can sustain the MSSA, the Government must demonstrate that the gender-based classification it employs bears "a close and substantial relationship to [the achievement of] important governmental objectives,"Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 273, 99 S.Ct. 2282, 2293, 60 L.Ed.2d 870 (1979).
C
65
The MSSA states that "an adequate armed strength must be achieved and maintained to insure the security of this Nation." 50 U.S.C.App. § 451(b). I agree with the majority, ante, at 70, that "[n]o one could deny that . . . the Government's interest in raising and supporting armies is an 'important governmental interest.' " Consequently, the first part of the Craig v. Boren test is satisfied. But the question remains whether the discriminatory means employed itself substantially serves the statutory end. In concluding that it does, the Court correctly notes that Congress enacted (and reactivated) the MSSA pursuant to its constitutional authority to raise and maintain armies.5 The majority also notes, ante, at 64, that "the Court accords 'great weight to the decisions of Congress,' " quoting Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 102, 93 S.Ct. 2080, 2086, 36 L.Ed.2d 772 (1973), and that the Court has accorded particular deference to decisions arising in the context of Congress' authority over military affairs. I have no particular quarrel with these sentiments in the majority opinion. I simply add that even in the area of military affairs, deference to congressional judgments cannot be allowed to shade into an abdication of this Court's ultimate responsibility to decide constitutional questions. As the Court has pointed out:
66
"[T]he phrase 'war power' cannot be invoked as a talismanic incantation to support any exercise of congressional power which can be brought within its ambit. '[E]ven the war power does not remove constitutional limitations safeguarding essential liberties.' " United States v. Robel, 389 U.S. 258, 263-264, 88 S.Ct. 419, 423, 19 L.Ed.2d 508 (1967), quoting Home Bldg. & Loan Assn. v. Blaisdell, 290 U.S. 398, 426, 54 S.Ct. 231, 235, 78 L.Ed. 413 (1934).
67
See United States v. L. Cohen Grocery Co., 255 U.S. 81, 88-89, 41 S.Ct. 298, 299-300, 65 L.Ed. 516 (1921); Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146, 156, 40 S.Ct. 106, 108, 64 L.Ed. 194 (1919); Ex parte Milligan, 4 Wall. 2, 121-127, 18 L.Ed. 281 (1866).
68
One such "safeguar[d] [of] essential liberties" is the Fifth Amendment's guarantee of equal protection of the laws.6 When, as here, a federal law that classifies on the basis of gender is challenged as violating this constitutional guarantee, it is ultimately for this Court, not Congress, to decide whether there exists the constitutionally required "close and substantial relationship" between the discriminatory means employed and the asserted governmental objective. See Powell v. McCormack, 395 U.S. 486, 549, 89 S.Ct. 1944, 1978, 23 L.Ed.2d 491 (1969); Baker v. Carr, 369 U.S. 186, 211, 82 S.Ct. 691, 706, 7 L.Ed.2d 663 (1962). In my judgment, there simply is no basis for concluding in this case that excluding women from registration is substantially related to the achievement of a concededly important governmental interest in maintaining an effective defense. The Court reaches a contrary conclusion only by using an "[a]nnounced degre[e] of 'deference' to legislative judgmen[t]" as a "facile abstractio [n] . . . to justify a result." Ante, at 69, 70.
II
A.
69
The Government does not defend the exclusion of women from registration on the ground that preventing women from serving in the military is substantially related to the effectiveness of the Armed Forces. Indeed, the successful experience of women serving in all branches of the Armed Services would belie any such claim. Some 150,000 women volunteers are presently on active service in the military,7 and their number is expected to increase to over 250,000 by 1985. See Department of Defense Authorization for Appropriations for Fiscal Year 1981: Hearings on S. 2294 before the Senate Committee on Armed Services, 96th Cong., 2d Sess., 1657, 1683 (1980) (1980 Senate Hearings); Women in the Military: Hearings before the Military Personnel Subcommittee of the House Committee on Armed Services, 96th Cong., 1st and 2d Sess., 13-23 (1979 and 1980) (Women in the Military Hearings). At the congressional hearings, representatives of both the Department of Defense and the Armed Services testified that the participation of women in the All-Volunteer Armed Forces has contributed substantially to military effectiveness. See, e. g., 1980 Senate Hearings, at 1389 (Lt. Gen. Yerks), 1682 (Principal Deputy Assistant Secretary of Defense Danzig); Women in the Military Hearings, at 13-23 (Assistant Secretary of Defense Pirie). Congress has never disagreed with the judgment of the military experts that women have made significant contributions to the effectiveness of the military. On the contrary, Congress has repeatedly praised the performance of female members of the Armed Forces, and has approved efforts by the Armed Services to expand their role. Just last year, the Senate Armed Services Committee declared:
70
"Women now volunteer for military service and are assigned to most military specialties. These volunteers now make an important contribution to our Armed Forces. The number of women in the military has increased significantly in the past few years and is expected to continue to increase." S.Rep.No. 96-826, p. 157 (1980), U.S.Code Cong. & Admin.News 1980, 2647. Accord, S.Rep.No. 96-226, p. 8 (1979).8 These statements thus make clear that Congress' decision to exclude women from registration—and therefore from a draft drawing on the pool of registrants—cannot rest on a supposed need to prevent women from serving in the Armed Forces. The justification for the MSSA's gender-based discrimination must therefore be found in considerations that are peculiar to the objectives of registration.
71
The most authoritative discussion of Congress' reasons for declining to require registration of women is contained in the Report prepared by the Senate Armed Services Committee on the Fiscal Year 1981 Defense Authorization Bill. S.Rep.No.96-826, supra, at 156-161. The Report's findings were endorsed by the House-Senate Conferees on the Authorization Bill. See S.Conf.Rep.No.96-895, p. 100 (1980). Both Houses of Congress subsequently adopted the findings by passing the Conference Report. 126 Cong.Rec. 23126, 23261 (1980). As the majority notes, ante, at 74, the Report's "findings are in effect findings of the entire Congress." The Senate Report sets out the objectives Congress sought to accomplish by excluding women from registration, see S.Rep.No.96-826, supra, at 157-161, and this Court may appropriately look to the Report in evaluating the justification for the discrimination.
B
72
According to the Senate Report, "[t]he policy precluding the use of women in combat is . . . the most important reason for not including women in a registration system." S.Rep.No. 96-826, supra, at 157, U.S.Code Cong. & Admin.News 1980, 2647; see also S.Rep.No. 96-226, supra, at 9. In reaffirming the combat restrictions, the Report declared:
73
"Registering women for assignment to combat or assigning women to combat positions in peacetime then would leave the actual performance of sexually mixed units as an experiment to be conducted in war with unknown risk—a risk that the committee finds militarily unwarranted and dangerous. Moreover, the committee feels that any attempt to assign women to combat positions could affect the national resolve at the time of mobilization, a time of great strain on all aspects of the Nation's resources." S.Rep.No. 96-826, supra, at 157, U.S.Code Cong. & Admin.News 1980, 2647.
74
Had appellees raised a constitutional challenge to the prohibition against assignment of women to combat, this discussion in the Senate Report might well provide persuasive reasons for upholding the restrictions. But the validity of the combat restrictions is not an issue we need decide in this case.9 Moreover, since the combat restrictions on women have already been accomplished through statutes and policies that remain in force whether or not women are required to register or to be drafted, including women in registration and draft plans will not result in their being assigned to combat roles. Thus, even assuming that precluding the use of women in combat is an important governmental interest in its own right, there can be no suggestion that the exclusion of women from registration and a draft is substantially related to the achievement of this goal.
75
The Court's opinion offers a different though related explanation of the relationship between the combat restrictions and Congress' decision not to require registration of women. The majority states that "Congress . . . clearly linked the need for renewed registration with its views of the character of a subsequent draft." Ante, at 75. The Court also states that "Congress determined that any future draft, which would be facilitated by the registration scheme, would be characterized by a need for combat troops." Ante, at 76. The Court then reasons that since women are not eligible for assignment to combat, Congress' decision to exclude them from registration is not unconstitutional discrimination inasmuch as "[m]en and women, because of the combat restrictions on women, are simply not similarly situated for purposes of a draft or registration for a draft." Ante, at 78. There is a certain logic to this reasoning, but the Court's approach is fundamentally flawed.
76
In the first place, although the Court purports to apply the Craig v. Boren test, the "similarly situated" analysis the Court employs is in fact significantly different from the Craig v. Boren approach. Compare Kirchberg v. Feenstra, 450 U.S., at 459-460, 101 S.Ct., at 1198-1199 (employing Craig v. Boren test), with id., at 463, 101 S.Ct., at 1200 (STEWART, J., concurring in result) (employing "similarly situated" analysis). The Court essentially reasons that the gender classification employed by the MSSA is constitutionally permissible because nondiscrimination is not necessary to achieve the purpose of registration to prepare for a draft of combat troops. In other words, the majority concludes that women may be excluded from registration because they will not be needed in the event of a draft.10
77
This analysis, however, focuses on the wrong question. The relevant inquiry under the Craig v. Boren test is not whether a gender-neutral classification would substantially advance important governmental interests. Rather, the question is whether the gender-based classification is itself substantially related to the achievement of the asserted governmental interest. Thus, the Government's task in this case is to demonstrate that excluding women from registration substantially furthers the goal of preparing for a draft of combat troops. Or to put it another way, the Government must show that registering women would substantially impede its efforts to prepare for such a draft. Under our precedents, the Government cannot meet this burden without showing that a gender-neutral statute would be a less effective means of attaining this end. See Wengler v. Druggist Mutual Ins. Co., 446 U.S. at 151, 100 S.Ct., at 1546. As the Court explained in Orr v. Orr, 440 U.S., at 283, 99 S.Ct., at 1113 (emphasis added):
78
"Legislative classifications which distribute benefits and burdens on the basis of gender carry the inherent risk of reinforcing sexual stereotypes about the 'proper place' of women and their need for special protection. . . . Where, as here, the [Government's] . . . purposes are as well served by a gender-neutral classification as one that gender classifies and therefore carries with it the baggage of sexual stereotypes, the [Government] cannot be permitted to classify on the basis of sex."
79
In this case, the Government makes no claim that preparing for a draft of combat troops cannot be accomplished just as effectively by registering both men and women but drafting only men if only men turn out to be needed.11 Nor can the Government argue that this alternative entails the additional cost and administrative inconvenience of registering women. This Court has repeatedly stated that the administrative convenience of employing a gender classification is not an adequate constitutional justification under the Craig v. Boren test. See, e. g., Craig v. Boren, 429 U.S., at 198, 97 S.Ct., at 457; Frontiero v. Richardson, 411 U.S. 677, 690-691, 93 S.Ct. 1764, 1772-1773, 36 L.Ed.2d 583 (1973).
80
The fact that registering women in no way obstructs the governmental interest in preparing for a draft of combat troops points up a second flaw in the Court's analysis. The Court essentially reduces the question of the constitutionality of male-only registration to the validity of a hypothetical program for conscripting only men. The Court posits a draft in which all conscripts are either assigned to those specific combat posts presently closed to women or must be available for rotation into such positions. By so doing, the Court is able to conclude that registering women would be no more than a "gestur[e] of superficial equality," ante, at 79, since women are necessarily ineligible for every position to be filled in its hypothetical draft. If it could indeed be guaranteed in advance that conscription would be reimposed by Congress only in circumstances where, and in a form under which, all conscripts would have to be trained for and assigned to combat or combat rotation positions from which women are categorically excluded, then it could be argued that registration of women would be pointless.
81
But of course, no such guarantee is possible. Certainly, nothing about the MSSA limits Congress to reinstituting the draft only in such circumstances. For example, Congress may decide that the All-Volunteer Armed Forces are inadequate to meet the Nation's defense needs even in times of peace and reinstitute peacetime conscription. In that event, the hypothetical draft the Court relied on to sustain the MSSA's gender-based classification would presumably be of little relevance, and the Court could then be forced to declare the male-only registration program unconstitutional. This difficulty comes about because both Congress12 and the Court have lost sight of the important distinction between registration and conscription. Registration provides "an inventory of what the available strength is within the military qualified pool in this country." Reinstitution of Procedures for Registration Under the Military Selective Service Act: Hearing before the Subcommittee on Manpower and Personnel of the Senate Armed Services Committee, 96th Cong., 1st Sess., 10 (1979) (Selective Service Hearings) (statement of Gen. Rogers). Conscription supplies the military with the personnel needed to respond to a particular exigency. The fact that registration is a first step in the conscription process does not mean that a registration law expressly discriminating between men and women may be justified by a valid conscription program which would, in retrospect, make the current discrimination appear functionally related to the program that emerged.
82
But even addressing the Court's reasoning on its own terms, its analysis is flawed because the entire argument rests on a premise that is demonstrably false. As noted, the majority simply assumes that registration prepares for a draft in which every draftee must be available for assignment to combat. But the majority's draft scenario finds no support in either the testimony before Congress, or more importantly, in the findings of the Senate Report. Indeed, the scenario appears to exist only in the Court's imagination, for even the Government represents only that "in the event of mobilization, approximately two-thirds of the demand on the induction system would be for combat skills." Brief for Appellant 29 (emphasis added). For my part, rather than join the Court in imagining hypothetical drafts, I prefer to examine the findings in the Senate Report and the testimony presented to Congress.
C
83
Nothing in the Senate Report supports the Court's intimation that women must be excluded from registration because combat eligibility is a prerequisite for all the positions that would need to be filled in the event of a draft. The Senate Report concluded only that "[i]f mobilization were to be ordered in a wartime scenario, the primary manpower need would be for combat replacements." S.Rep.No. 96-826, p. 160 (1980), U.S.Code Cong. & Admin.News 1980, 2650 (emphasis added). This conclusion was in keeping with the testimony presented at the congressional hearings. The Department of Defense indicated that in the event of a mobilization requiring reinstitution of the draft, the primary manpower requirement would be for combat troops and support personnel who can readily be deployed into combat. See 1980 Senate Hearings, at 1395 (Principal Deputy Assistant Secretary of the Army Clark), 1390 (Lt. Gen. Yerks). But the Department indicated that conscripts would also be needed to staff a variety of support positions having no prerequisite of combat eligibility, and which therefore could be filled by women. Assistant Secretary of Defense (Manpower, Reserve Affairs, and Logistics) Pirie explained:
84
"Not only will we need to expand combat arms, and as I said, that is the most pressing need, but we also will need to expand the support establishment at the same time to allow the combat arms to carry out their function successfully. The support establishment now uses women very effectively, and in wartime I think the same would be true." Registration of Women: Hearing on H.R. 6569 before the Subcommittee on Military Personnel of the House Committee on Armed Services, 96th Cong., 2d Sess., 17 (1980) (1980 House Hearings).
85
In testifying about the Defense Department's reasons for concluding that women should be included in registration plans, Pirie stated:
86
"It is in the interest of national security that, in an emergency requiring the conscription for military service of the Nation's youth, the best qualified people for a wide variety of tasks in our Armed Forces be available. The performance of women in our Armed Forces today strongly supports the conclusion that many of the best qualified people for some military jobs in the 18-26 age category will be women." Id., at 7.
87
See 1980 Senate Hearings, at 171 (Secretary of the Army Alexander), 182 (Secretary of the Navy Claytor).13 The Defense Department also concluded that there are no military reasons that would justify excluding women from registration. The Department's position was described to Congress in these terms:
88
"Our conclusion is that there are good reasons for registering [women]. Our conclusion is even more strongly that there are not good reasons for refusing to register them." Id., at 1667-1668 (Principal Deputy Assistant Secretary of Defense Danzig) (emphasis added).
89
All four Service Chiefs agreed that there are no military reasons for refusing to register women, and uniformly advocated requiring registration of women. The military's position on the issue was summarized by then Army Chief of Staff General Rogers: "[W]omen should be required to register for the reason that [Marine Corps Commandant] General Wilson mentioned, which is in order for us to have an inventory of what the available strength is within the military qualified pool in this country." Selective Service Hearings, at 10; see id., at 10-11 (Adm. Hayward, Chief of Naval Operations; Gen. Allen, Air Force Chief of Staff; Gen. Wilson, Commandant, Marine Corps).
90
Against this background, the testimony at the congressional hearings focused on projections of manpower needs in the event of an emergency requiring reinstitution of the draft, and, in particular, on the role of women in such a draft. To make the discussion concrete, the testimony examined a draft scenario dealing with personnel requirements during the first six months of mobilization in response to a major war in Europe. The Defense Department indicated three constraints on the maximum number of women the Armed Services could use in the event of such a mobilization:
91
"(1) legislative prohibitions against the use of women in certain military positions, (2) the policy to reserve certain assignments, such as ground combat roles, for men only, and (3) the need to reserve a substantial number of noncombat positions for men in order to provide a pool of ready replacements for ground combat positions." 1980 House Hearings, at 6 (Assistant Secretary Pirie).
92
After allowing for these constraints, the Defense Department reached the following conclusion about the number of female draftees that could be absorbed:
93
"If we had a mobilization, our present best projection is that we could use women in some 80,000 of the jobs that we would be inducting 650,000 people for. The reason for that is because some 80,000 of those jobs, indeed more than 80,000 of those jobs are support related and not combat related.
94
"We think women could fill those jobs quite well." 1980 Senate Hearings, at 1688 (Principal Deputy Assistant Secretary of Defense Danzig).
95
See id., at 1661, 1665, 1828; 1980 House Hearings, at 6, 16-17 (Assistant Secretary of Defense Pirie).14 Finally, the Department of Defense acknowledged that amending the MSSA to authorize registration and induction of women did not necessarily mean that women would be drafted in the same numbers as men. Assistant Secretary Pirie explained:
96
"If women were subject to the draft, the Department of Defense would determine the maximum number of women that could be used in the Armed Forces, subject to existing constraints and the needs of the Military Services to provide close combat fillers and replacements quickly. We estimate that this might require at least 80,000 additional women over the first six months. If there were not enough women volunteers, a separate draft call for women would be issued." Id., at 6.
97
See 1980 Senate Hearings, at 1661 (Principal Deputy Assistant Secretary of Defense Danzig).
98
This review of the findings contained in the Senate Report and the testimony presented at the congressional hearings demonstrates that there is no basis for the Court's representation that women are ineligible for all the positions that would need to be filled in the event of a draft. Testimony about personnel requirements in the event of a draft established that women could fill at least 80,000 of the 650,000 positions for which conscripts would be inducted. Thus, with respect to these 80,000 or more positions, the statutes and policies barring women from combat do not provide a reason for distinguishing between male and female potential conscripts; the two groups are, in the majority's parlance, "similarly situated." As such, the combat restrictions cannot by themselves supply the constitutionally required justification for the MSSA's gender-based classification. Since the classification precludes women from being drafted to fill positions for which they would be qualified and useful, the Government must demonstrate that excluding women from those positions is substantially related to the achievement of an important governmental objective.
III
99
The Government argues, however, that the "consistent testimony before Congress was to the effect that there is no military need to draft women." Brief for Appellant 31 (emphasis in original). And the Government points to a statement in the Senate Report that "[b]oth the civilian and military leadership agreed that there was no military need to draft women. . . . The argument for registration and induction of women . . . is not based on military necessity, but on considerations of equity." S.Rep.No.96-826, p. 158 (1980). U.S.Code Cong. & Admin.News 1980, 2648. In accepting the Government's contention, the Court asserts that the President's decision to seek authority to register women was based on "equity," and concludes that "Congress was certainly entitled, in the exercise of its constitutional powers to raise and regulate armies and navies, to focus on the question of military need rather than 'equity.' " Ante, at 80. In my view, a more careful examination of the concepts of "equity" and "military need" is required.
100
As previously noted, the Defense Department's recommendation that women be included in registration plans was based on its conclusion that drafting a limited number of women is consistent with, and could contribute to, military effectiveness. See supra, at 97-102. It was against this background that the military experts concluded that "equity" favored registration of women. Assistant Secretary Pirie explained:
101
"Since women have proven that they can serve successfully as volunteers in the Armed Forces, equity suggests that they be liable to serve as draftees if conscription is reinstated." 1980 House Hearings, at 7.
102
By "considerations of equity," the military experts acknowledged that female conscripts can perform as well as male conscripts in certain positions, and that there is therefore no reason why one group should be totally excluded from registration and a draft. Thus, what the majority so blithely dismisses as "equity" is nothing less than the Fifth Amendment's guarantee of equal protection of the laws which "requires that Congress treat similarly situated persons similarly," ante, at 79. Moreover, whether Congress could subsume this constitutional requirement to "military need," in part depends on precisely what the Senate Report meant by "military need."
103
The Report stated that "[b]oth the civilian and military leadership agreed that there was no military need to draft women." S.Rep.No. 96-826, supra, at 158, U.S.Code Cong. & Admin.News 1980, 2648. An examination of what the "civilian and military leadership" meant by "military need" should therefore provide an insight into the Report's use of the term. Several witnesses testified that because personnel requirements in the event of a mobilization could be met by drafting men, including women, in draft plans is not a military necessity. For example, Assistant Secretary of Defense Pirie stated:
104
"It is doubtful that a female draft can be justified on the argument that wartime personnel requirements cannot be met without them. The pool of draft eligible men . . . is sufficiently large to meet projected wartime requirements." 1980 House Hearings, at 6.
105
See 1980 Senate Hearings, at 1665 (Principal Deputy Assistant Secretary of Defense Danzig). Similarly, Army Chief of Staff General Meyer testified:
106
"I do not believe there is a need to draft women in peacetime. In wartime, because there are such large numbers of young men available, approximately 2 million males in each year group of the draft age population, there would be no military necessity to draft females except, possibly, doctors, and other health professionals if there are insufficient volunteers from people with those skills." Id., at 749.
107
To be sure, there is no "military need" to draft women in the sense that a war could be waged without their participation.15 This fact is however, irrelevant to resolving the constitutional issue.16 As previously noted, see supra, at 94-95, it is not appellees' burden to prove that registration of women substantially furthers the objectives of the MSSA.17 Rather, because eligibility for combat is not a requirement for some of the positions to be filled in the event of a draft, it is incumbent on the Government to show that excluding women from a draft to fill those positions substantially furthers an important governmental objective.
108
It may be, however, that the Senate Report's allusion to "military need" is meant to convey Congress' expectation that women volunteers will make it unnecessary to draft any women. The majority apparently accepts this meaning when it states: "Congress also concluded that whatever the need for women for noncombat roles during mobilization, whether 80,000 or less, it could be met by volunteers." Ante, at 81. But since the purpose of registration is to protect against unanticipated shortages of volunteers, it is difficult to see how excluding women from registration can be justified by conjectures about the expected number of female volunteers.18 I fail to see why the exclusion of a pool of persons who would be conscripted only if needed can be justified by reference to the current supply of volunteers. In any event, the Defense Department's best estimate is that in the event of a mobilization requiring reinstitution of the draft, there will not be enough women volunteers to fill the positions for which women would be eligible. The Department told Congress:
109
"If we had a mobilization, our present best projection is that we could use women in some 80,000 of the jobs we would be inducting 650,000 people for." 1980 Senate Hearings, at 1688 (Principal Deputy Assistant Secretary of Defense Danzig) (emphasis added).19
110
Thus, however the "military need" statement in the Senate Report is understood, it does not provide the constitutionally required justification for the total exclusion of women from registration and draft plans.
IV
111
Recognizing the need to go beyond the "military need" argument, the Court asserts that "Congress determined that staffing noncombat positions with women during a mobilization would be positively detrimental to the important goal of military flexibility." Ante, at 81-82. None would deny that preserving "military flexibility" is an important governmental interest. But to justify the exclusion of women from registration and the draft on this ground, there must be a further showing that staffing even a limited number of noncombat positions with women would impede military flexibility. I find nothing in the Senate Report to provide any basis for the Court's representation that Congress believed this to be the case.
112
The Senate Report concluded that "military reasons . . . preclude very large numbers of women from serving." S.Rep.No. 96-826, at 158 (1980), U.S.Code Cong. & Admin.News 1980, 2648 (emphasis added). The Report went on to explain:
113
"Military flexibility requires that a commander be able to move units or ships quickly. Units or ships not located at the front or not previously scheduled for the front nevertheless must be able to move into action if necessary. In peace and war, significant rotation of personnel is necessary. We should not divide the military into two groups one in permanent combat and one in permanent support. Large numbers of non-combat positions must be available to which combat troops can return for duty before being redeployed." Ibid.
114
This discussion confirms the Report's conclusion that drafting "very large numbers of women" would hinder military flexibility. The discussion does not, however, address the different question whether drafting only a limited number of women would similarly impede military flexibility. The testimony on this issue at the congressional hearings was that drafting a limited number of women is quite compatible with the military's need for flexibility. In concluding that the Armed Services could usefully employ at least 80,000 women conscripts out of a total of 650,000 draftees that would be needed in the event of a major European war, the Defense Department took into account both the need for rotation of combat personnel and the possibility that some support personnel might have to be sent into combat. As Assistant Secretary Pirie testified:
115
"If women were subject to the draft, the Department of Defense would determine the maximum number of women that could be used in the Armed Forces subject to existing constraints and the needs of the Military- Services to provide close combat fillers and replacements quickly. We estimate that this might require at least 80,000 additional women over the first 6 months." 1980 House Hearings, at 6 (emphasis added).
116
See App. 278 (deposition of Principal Deputy Assistant Secretary of Defense Danzig).20
117
Similarly, there is no reason why induction of a limited number of female draftees should any more divide the military into "permanent combat" and "permanent support" groups than is presently the case with the All-Volunteer Armed Forces. The combat restrictions that would prevent a female draftee from serving in a combat or combat rotation position also apply to the 150,000-250,000 women volunteers in the Armed Services. If the presence of increasing but controlled numbers of female volunteers has not unacceptably "divide[d] the military into two groups," it is difficult to see how the induction of a similarly limited additional number of women could accomplish this result. In these circumstances, I cannot agree with the Court's attempt to "interpret" the Senate Report's conclusion that drafting very large numbers of women would impair military flexibility, as proof that Congress reached the entirely different conclusion that drafting a limited number of women would adversely affect military flexibility.
V
118
The Senate Report itself recognized that the "military flexibility" objective speaks only to the question whether "very large numbers" of women should be drafted. For the Report went on to state:
119
"It has been suggested that all women be registered, but only a handful actually be inducted in an emergency. The committee finds this a confused and ultimately unsatisfactory solution." S.Rep.No. 96-826, p. 158 (1980). U.S.Code Cong. & Admin.News 1980, 2648.
120
The Report found the proposal "confused" and "unsatisfactory" for two reasons.
121
"First, the President's proposal [to require registration of women] does not include any change in section 5(a)(1) of the [MSSA], which requires that the draft be conducted impartially among those eligible. Administration witnesses admitted that the current language of the law probably precludes induction of women and men on any but a random basis, which should produce roughly equal numbers of men and women. Second, it is conceivable that the courts, faced with a congressional decision to register men and women equally because of equity considerations, will find insufficient justification for then inducting only a token number of women into the Services in an emergency." Id., at 158-159, U.S.Code Cong. & Admin.News 1980, 2648 (emphasis in original).
122
The Report thus assumed that if women are registered, any subsequent draft would require simultaneous induction of equal numbers of male and female conscripts. The Report concluded that such a draft would be unacceptable:
123
"It would create monumental strains on the training system, would clog the personnel administration and support systems needlessly, and would impede our defense preparations at a time of great national need.
124
"Other administrative problems such as housing and different treatment with regard to dependency, hardship and physical standards would also exist." Id., at 159,21 U.S.Code Cong. & Admin.News 1980, 2649.
125
See also S.Rep.No. 96-226, p. 9 (1979). Relying on these statements, the majority asserts that even "assuming that a small number of women could be drafted for noncombat roles, Congress simply did not consider it worth the added burdens of including women in draft and registration plans." Ante, at 81. In actual fact, the conclusion the Senate Report reached is significantly different from the one the Court seeks to attribute to it.
126
The specific finding by the Senate Report was that "[i]f the law required women to be drafted in equal numbers with men, mobilization would be severely impaired because of strains on training facilities and administrative systems." S.Rep.No. 96-826, supra, at 160, U.S.Code Cong. & Admin.News 1980, 2650 (emphasis added). There was, however, no suggestion at the congressional hearings that simultaneous induction of equal numbers of males and female conscripts was either necessary or desirable. The Defense Department recommended that women be included in registration and draft plans, with the number of female draftees and the timing of their induction to be determined by the military's personnel requirements. See supra, at 100-101.22 In endorsing this plan, the Department gave no indication that such a draft would place any strains on training and administrative facilities. Moreover, the Director of the Selec tive Service System testified that a registration and induction process including both males and females would present no administrative problems. See 1980 Senate Hearings, at 1679 (Bernard Rostker); App. 247-248 (deposition of Bernard Rostker).
127
The Senate Report simply failed to consider the possibility that a limited number of women could be drafted because of its conclusion that § 5(a)(1) of the MSSA does not authorize drafting different numbers of men and women and its speculation on judicial reaction to a decision to register women. But since Congress was free to amend § 5(a)(1), and indeed would have to undertake new legislation to authorize any draft, the matter cannot end there. Furthermore, the Senate Report's speculation that a statute authorizing differential induction of male and female draftees would be vulnerable to constitutional challenge is unfounded. The unchallenged restrictions on the assignment of women to combat, the need to preserve military flexibility, and the other factors discussed in the Senate Report provide more than ample grounds for concluding that the discriminatory means employed by such a statute would be substantially related to the achievement of important governmental objectives. Since Congress could have amended § 5(a)(1) to authorize differential induction of men and women based on the military's personnel requirements, the Senate Report's discussion about "added burdens" that would result from drafting equal numbers of male and female draftees provides no basis for concluding that the total exclusion of women from registration and draft plans is substantially related to the achievement of important governmental objectives.
128
In sum, neither the Senate Report itself not the testimony presented at the congressional hearings provides any support for the conclusion the Court seeks to attribute to the Report—that drafting a limited number of women, with the number and the timing of their induction and training determined by the military's personnel requirements, would burden training and administrative facilities. VI
129
After reviewing the discussion and findings contained in the Senate Report, the most I am able to say of the Report is that it demonstrates that drafting very large numbers of women would frustrate the achievement of a number of important governmental objectives that relate to the ultimate goal of maintaining "an adequate armed strength . . . to insure the security of this Nation," 50 U.S.C.App. § 451(b). Or to put it another way, the Senate Report establishes that induction of a large number of men but only a limited number of women, as determined by the military's personnel requirements, would be substantially related to important governmental interests. But the discussion and findings in the Senate Report do not enable the Government to carry its burden of demonstrating that completely excluding women from the draft by excluding them from registration substantially furthers important governmental objectives.
130
In concluding that the Government has carried its burden in this case, the Court adopts "an appropriately deferential examination of Congress' evaluation of [the] evidence," ante, at 83 (emphasis in original). The majority then proceeds to supplement Congress' actual findings with those the Court apparently believes Congress could (and should) have made. Beyond that, the Court substitutes hollow shibboleths about "deference to legislative decisions" for constitutional analysis. It is as if the majority has lost sight of the fact that "it is the responsibility of this Court to act as the ultimate interpreter of the Constitution." Powell v. McCormack, 395 U.S., at 549, 89 S.Ct., at 1978. See Baker v. Carr, 369 U.S., at 211, 82 S.Ct., at 706. Congressional enactments in the area of military affairs must, like all other laws, be judged by the standards of the Constitution. For the Constitution is the supreme law of the land, and all legislation must conform to the principles it lays down. As the Court has pointed out, "the phrase 'war power' cannot be invoked as a talismanic incantation to support any exercise of gressional power which can be brought within its ambit." United States v. Robel, 389 U.S., at 263-264, 88 S.Ct., at 423.
131
Furthermore, "[w]hen it appears that an Act of Congress conflicts with [a constitutional] provisio[n], we have no choice but to enforce the paramount commands of the Constitution. We are sworn to do no less. We cannot push back the limits of the Constitution merely to accommodate challenged legislation." Trop v. Dulles, 356 U.S. 86, 104, 78 S.Ct. 590, 600, 2 L.Ed.2d 596 (1958) (plurality opinion). In some 106 instances since this Court was established it has determined that congressional action exceeded the bounds of the Constitution. I believe the same is true of this statute. In an attempt to avoid its constitutional obligation, the Court today "pushes back the limits of the Constitution" to accommodate an Act of Congress.
132
I would affirm the judgment of the District Court.
1
The President did not seek conscription. Since the Act was amended to preclude conscription as of July 1, 1973, Pub.L. 92-129, 85 Stat. 353, 50 U.S.C.App. § 467(c), any actual conscription would require further congressional action. See S.Rep.No.96-826, p. 155 (1980), U.S.Code Cong. & Admin.News, 1980, p. 2612.
2
Plaintiffs contended that the Act amounted to a taking of property without due process, imposed involuntary servitude, violated rights of free expression and assembly, was unlawfully implemented to advance an unconstitutional war, and impermissibly discriminated between males and females. The District Court denied plaintiffs' application to convene a three-judge District Court and dismissed the suit, Rowland v. Tarr, 341 F.Supp. 339 (1972). On appeal, the Court of Appeals for the Third Circuit affirmed the dismissal of all claims except the discrimination claim, and remanded the case to the District Court to determine if this claim was substantial enough to warrant the convening of a three-judge court under then-applicable 28 U.S.C. § 2282 (1970 ed.) and whether plaintiffs had standing to assert that claim. 480 F.2d 545 (1973). On remand, the District Court answered both questions in the affirmative, resulting in the convening of the three-judge court which decided the case below. The Act authorizing three-judge courts to hear claims such as this was repealed in 1976, Pub.L. 94-381, §§ 1 and 2, 90 Stat. 1119, but remains applicable to suits filed before repeal, § 7, 90 Stat. 1120.
3
As the Court stated in Schlesinger v. Ballard, 419 U.S. 498, 500, n.3, 95 S.Ct. 572, 574, n.3, 42 L.Ed.2d 610 (1975): "Although it contains no Equal Protection Clause as does the Fourteenth Amendment, the Fifth Amendment's Due Process Clause prohibits the Federal Government from engaging in discrimination that is 'so unjustifiable as to be violative of due process.' Bolling v. Sharpe, 347 U.S. 497, 499 [74 S.Ct. 693, 694, 98 L.Ed. 884]."
4
When entering its judgment on July 18, the District Court redefined the class to include "[a]ll male persons who are registered under 50 U.S.C.App. § 453 or are liable for training and service in the armed forces of the United States under 50 U.S.C.App. §§ 454, 456(h) and 467(c); and who are also either subject to registration under Presidential Proclamation No. 4771 (July 2, 1980) or are presently registered with the Selective Service System." 509 F.Supp., at 605.
5
See also Simmons v. United States, 406 F.2d 456, 459 (CA5), cert. denied, 395 U.S. 982, 89 S.Ct. 2144, 23 L.Ed.2d 770 (1969) ("That this court is not competent or empowered to sit as a super-executive authority to review the decisions of the Executive and Legislative branches of government in regard to the necessity, method of selection, and composition of our defense forces is obvious and needs no further discussion").
6
Congress recognized that its decision on registration involved judgments on military needs and operations, and that its decisions were entitled to particular deference: "The Supreme Court's most recent teachings in the field of equal protection cannot be read in isolation from its opinions giving great deference to the judgment of Congress and military commanders in dealing [with] the management of military forces and the requirements of military discipline. The Court has made it unmistakably clear that even our most fundamental constitutional rights must in some circumstances be modified in the light of military needs, and that Congress' judgment as to what is necessary to preserve our national security is entitled to great deference." S.Rep.No.96-826, pp. 159-160 (1980), U.S.Code Cong. & Admin.News 1980, 2649.
Deference to Congress' judgment was a consistent and dominant theme in lower court decisions assessing the present claim. See, e. g., United States v. Clinton, 310 F.Supp. 333, 335 (ED La.1970); United States v. Offord, 373 F.Supp. 1117, 1118 (ED Wis.1974).
7
It is clear that "[g]ender has never been rejected as an impermissible classification in all instances." Kahn v. Shevin, 416 U.S. 351, 356, n. 10, 94 S.Ct. 1734, 1737-1738, n. 10, 40 L.Ed.2d 189 (1974). In making this observation the Court noted that "Congress has not so far drafted women into the Armed Services, 50 U.S.C.App. § 454." Ibid.
8
See Reinstitution of Procedures for Registration Under the Military Selective Service Act: Hearing on S. 109 and S. 226 before the Subcommittee on Manpower and Personnel of the Senate Committee on Armed Services, 96th Cong., 1st Sess. (1979) (Hearing on S. 109 and S. 226). Seven months before the President's call for the registration of women, the Senate Armed Services Committee rejected the idea, see S.Rep.No.96-226, pp. 8-9 (1979).
9
The amendment provided that no funds "shall be made available for implementing a system of registration which does not include women." 126 Cong.Rec. 13876 (1980).
10
The findings were before the conferees because the Senate Armed Services Committee had added a provision to the 1981 Defense Authorization Bill authorizing the transfer of funds to register young men as a stopgap measure should Joint Resolution 521 fail. See S.Conf.Rep.No.96-895, at 100.
11
Nor can we agree with the characterization of the MSSA in the Brief for National Organization for Women as Amicus Curiae as a law which "coerce[s] or preclude[s] women as a class from performing tasks or jobs of which they are capable," or the suggestion that this case involves "[t]he exclusion of women from the military." Id., at 19-20. Nothing in the MSSA restricts in any way the opportunities for women to volunteer for military service.
12
No major country has women in combat jobs in their standing army. See App. 143.
13
See Brief for Appellees 1-2, n. 2 (denying any concession of the validity of combat restrictions, but submitting restrictions are irrelevant to the present case). See also App. 256.
14
Justice MARSHALL'S suggestion that since Congress focused on the need for combat troops in authorizing male-only registration the Court could "be forced to declare the male-only registration program unconstitutional," post, at 96, in the event of a peacetime draft misreads our opinion. The perceived need for combat or combat-eligible troops in the event of a draft was not limited to a wartime draft. See, e. g., S.Rep.No.96-826, at 157, U.S.Code Cong. & Admin.News 1980, 2647 (considering problems associated with "[r]egistering women for assignment to combat or assigning women to combat positions in peacetime") (emphasis supplied); id., at 158 (need or rotation between combat and noncombat positions "[i]n peace and war").
15
The grant of constitutional authority is, after all, to Congress and not to the Executive or military officials.
16
The District Court also focused on what it termed Congress' "inconsistent positions" in encouraging women to volunteer for military service and expanding their opportunities in the service, on the one hand, and exempting them from registration and the draft on the other. 509 F.Supp., at 603-604. This reasoning fails to appreciate the different purposes served by encouraging women volunteers and registration for the draft. Women volunteers do not occupy combat positions, so encouraging women to volunteer is not related to concerns about the availability of combat troops. In the event of a draft, however, the need would be for combat troops or troops which could be rotated into combat. See supra, at 76. Congress' positions are clearly not inconsistent and in treating them as such the District Court failed to understand Congress' purpose behind registration as distinguished from its purpose in encouraging women volunteers.
17
General Rogers' testimony merits quotation:
"General ROGERS. One thing which is often lost sight of, Senator, is that in an emergency during war, the Army has often had to reach back into the support base, into the supporting elements in the operating base, and pull forward soldiers to fill the ranks in an emergency; that is, to hand them a rifle or give them a tanker suit and put them in the front ranks.
"Senator WARNER. General Patton did that at one time, I believe at the Battle of the Bulge.
"General ROGERS. Absolutely.
"Now, if that support base and that operating base to the rear consists in large measure of women, then we don't have that opportunity to reach back and pull them forward, because women should not be placed in a forward fighting position or in a tank, in my opinion. So that, too, enters the equation when one considers the subject of the utility of women under contingency conditions."
1
Given the Court's lengthy discourse on the background to this litigation, it is interesting that the Court chooses to bury its sole reference to this fact in a footnote. See ante, at 60, n. 1.
2
By statute, female members of the Air Force and the Navy may not be assigned to vessels or aircraft engaged in combat missions. See 10 U.S.C. § 6015 (1976 ed., Supp. III), § 8549. Although there are no statutory restrictions on the assignment of women to combat in the Army and the Marine Corps, both services have established policies that preclude such assignment.
Appellees do not concede the constitutional validity of these restrictions on women in combat, but they have taken the position that their validity is irrelevant for purposes of this case.
3
I join the Court, see ante, at 69, in rejecting the Solicitor General's suggestion that the gender-based classification employed by the MSSA should be scrutinized under the "rational relationship" test used in reviewing challenges to certain types of social and economic legislation. See, e. g., Schweiker v. Wilson, 450 U.S. 221, 101 S.Ct. 1074, 67 L.Ed.2d 186 (1981); U.S. Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 101 S.Ct. 453, 66 L.Ed.2d 368 (1980).
4
Consequently, it is of no moment that the constitutional challenge in this case is pressed by men who claim that the MSSA's gender classification discriminates against them.
5
The Constitution grants Congress the power "To raise and support Armies," "To Provide and maintain a Navy," and "To make Rules for the Government and Regulation of the land and naval Forces." U.S.Const., Art. I, § 8, cls. 12-14.
6
Although the Fifth Amendment contains no Equal Protection Clause, this Court has held that "the Fifth Amendment's Due Process Clause prohibits the Federal Government from engaging in discrimination that is 'so unjustifiable as to be violative of due process.' " Schlesinger v. Ballard, 419 U.S. 498, 500, n. 3, 95 S.Ct. 572, 574, n. 3, 42 L.Ed.2d 610 (1975), quoting Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884 (1954).
7
With the repeal in 1967 of a statute limiting the number of female members of the Armed Forces to 2% of total enlisted strength, the number of women in the military has risen steadily both in absolute terms and as a percentage of total active military personnel. The percentage has risen from 0.78% in 1966, to over 5% in 1976, and is expected to rise to 12% by 1985. See U.S. Dept. of Defense, Use of Women in the Military 5-6 (2d ed. 1978), reprinted at App. 98, 111-113; M. Binkin & S. Bach, Women and the Military 13-21 (1977).
8
In summarizing the testimony presented at the congressional hearings, Senator Cohen stated:
"[B]asically the evidence has come before this committee that participation of women in the All-Volunteer Force has worked well, has been praised by every military officer who has testified before the committee, and that the jobs are being performed with the same, if not in some cases, with superior skill." 1980 Senate Hearings, at 1678.
9
As noted, see n. 2, supra, appellees elected not to challenge the constitutionality of the combat restrictions.
10
I would have thought the logical conclusion from this reasoning is that there is in fact no discrimination against women, in which case one must wonder why the Court feels compelled to pledge its purported fealty to the Craig v. Boren test.
11
Alternatively, the Government could employ a classification that is related to the statutory objective but is not based on gender, for example, combat eligibility. Under the current scheme, large subgroups of the male population who are ineligible for combat because of physical handicaps or conscientious objector status are nonetheless required to register.
12
The Court quotes Senator Warner's comment: " 'I equate registration with the draft,' " ante, at 75. The whole of Senator Warner's statement merits quotation because it explains why Congress refused to acknowledge the distinction between registration and the draft. Senator Warner stated: "Frankly, I equate registration with the draft because there is no way you can establish a registration law on a coequal basis and then turn right around and establish a draft law on a nonequal basis. I think the court would knock that down right away." 1980 Senate Hearings, at 1197.
13
Pirie explained the reasoning behind the Defense Department's conclusion in these terms:
"Large numbers of military women work in occupations such as electronics, communications, navigation, radar repair, jet engine mechanics, drafting, surveying, ordnance, transportation and meteorology and do so very effectively, as has been shown by numerous DOD studies and tests. The work women in the Armed Forces do today is essential to the readiness and capability of the forces. In case of war that would still be true, and the number of women doing similar work would inevitably expand beyond our peacetime number of 250,000.
"Women have traditionally held the vast majority of jobs in fields such as administrative/clerical and health care/medical. An advantage of registration for women is that a pool of trained personnel in these traditionally female jobs would exist in the event that sufficient volunteers were not available. It would make far greater sense to include women in a draft call and thereby gain many of these skills than to draft only males who would not only require training in these fields but would be drafted for employment in jobs traditionally held by females. A further advantage would be to release males currently holding noncombatant jobs for reassignment to combat jobs." 1980 House Hearings, at 6.
14
The Defense Department arrived at this number after it "surveyed the military services, and asked them how many women they could use [in the event of a mobilization of] 650,000, and received answers suggesting that they could use about 80,000." 1980 Senate Hearings, at 1665 (Principal Deputy Assistant Secretary of Defense Danzig).
15
A colloquy between Senator Jepsen and Principal Deputy Assistant Secretary of Defense Danzig reveals that some Members of Congress understood "military need" in this sense.
"Mr. DANZIG. . . .
"We surveyed the military services, and asked them how many women they could use among those 650,000, and received answers suggesting that they could use 80,000.
"Let me indicate when I say they could use[,] I do not mean to imply that they would have to use women. Our Department of Defense view is that women would be useful in a mobilization scenario. If women were not available, I do not think the republic would crumble. Men could be used instead.
"Senator JEPSEN. So there is no explicit military requirement involved?
* * * * *
"Mr. DANZIG. My problem, Senator, and I don't mean to be semantic about it, is with the use of the words, 'explicit requirement.' If you said to me, for example, does the military require people with brown eyes to serve, I would tell you no, because people with blue eyes, et cetera, could do the job.
"On the other hand, I wouldn't deny that they could do the job and that we would find them useful." 1980 Senate Hearings, at 1665; see id., at 1853-1856.
16
Deputy Assistant Attorney General Simms explained as much to Congress in his testimony at the hearings. He stated:
"[T]he question of military necessity for drafting women is irrelevant to the constitutional issue, which is whether or not there is sufficient justification by whatever test the courts may apply for not registering women." Id., at 1667.
17
If we were to assign appellees this burden, then all of the Court's prior "mid-level" scrutiny equal protection decisions would be drawn into question. For the Court would be announcing a new approach under which the party challenging a gender-based classification has the burden of showing that elimination of the classification substantially furthers an important governmental interest.
18
As Assistant Secretary of Defense Pirie explained:
"Perhaps sufficient women volunteers would come forward to meet this need, perhaps not. Having our young women register in advance would put us in a position to call women if they do not volunteer in sufficient numbers," quoted at 126 Cong.Rec. 13885-13886 (1980).
See 1980 Senate Hearings, at 1828 (Principal Deputy Assistant Secretary of Defense Danzig).
Past wartime recruitment experience does not bear out the Court's sanguine view. With the advent of the Korean War, an unsuccessful effort was made to recruit some 100,000 women to meet the rapidly expanding manpower requirements. See Use of Women in the Military, supra, n. 7, at 5, App. 111.
19
A colloquy between Representative Hillis and Assistant Secretary of Defense Pirie at the House Hearings makes clear that the 80,000 number is in addition to the number of women serving in the All-Volunteer Armed Forces.
"Mr. PIRIE. Mr. Hillis, we estimate that we would need 650,000 individuals to be inducted over the first six months.
"Rep. HILLIS. How many of those would be women?
"Mr. PIRIE. At least 80,000, of these individuals would be women, Mr. Hillis.
"Rep. HILLIS. That is even if we had the 250,000 [women in active service expected by 1985], you are talking about another 80,000, which projects into about 330,000.
"Mr. PIRIE. Yes, sir." 1980 House Hearings, at 22.
20
Senator Warner questioned the Service Chiefs about the "impact on your service as a consequence of a draft, which would be based on a total provision of equality between male and female." Selective Service Hearings, at 15 (emphasis added). Two of the Service Chiefs answered Senator Warner's question about the effect of a draft of equal numbers of men and women. Their answers merit quotation.
"General ALLEN [Air Force]. It would not have any unfavorable effect on the Air Force. We would have no objection to such a draft." Ibid.
"General WILSON [Marine Corps].
* * * * *
" . . . [W]e would be perfectly happy to have women drafted. That is up to the 5 percent goal which I believe we can handle in the Marine Corps." Ibid.
21
The Report further explained:
"If the Congress were to mandate equal registration of men and women, therefore, we might well be faced with a situation in which the combat replacements needed in the first 60 days—say 100,000 men—would have to be accompanied by 100,000 women. Faced with this hypothetical, the military witnesses stated that such a situation would be intolerable." S.Rep.No. 96-826, at 159, U.S.Code Cong. & Admin.News 1980, 2649.
22
As stated in the Senate Report, "Selective Service Plans provide[d] for drafting only men during the first 60 days, and only a small number of women would be included in the total drafted for the first 180 days." Id., at 158, U.S.Code Cong. & Admin.News 1980, 2648.
| 12
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453 U.S. 34
101 S.Ct. 2633
69 L.Ed.2d 460
Richard SCHWEIKER, Secretary of Health and Human Services, et al., Petitioners,v.GRAY PANTHERS.
No. 80-756.
Argued April 29, 1981.
Decided June 25, 1981.
Syllabus
The Medicaid program provides federal funds to States that pay for medical treatment for needy persons. Section 1902(a)(17)(D) of the Social Security Act provides that, in calculating benefits, state Medicaid plans must not "take into account the financial responsibility of any individual for any applicant or recipient of assistance under the plan unless such applicant or recipient is such individual's spouse" or minor, blind, or disabled child. Section 1902(a)(17)(B) requires participating States to grant benefits to eligible persons taking into account only such income and resources that are, "as determined in accordance with standards prescribed by the Secretary [of Health and Human Services], available to the applicant." The Secretary promulgated regulations describing the circumstances in which the income of one spouse may be "deemed" available to the other for purposes of determining eligibility for Medicaid benefits. In States participating in the program called Supplemental Security Income for the Aged, Blind, and Disabled (SSI), which substantially replaced the former state-run categorical need plans and enlarged eligibility for Medicaid benefits, the regulations provide that when the applicant and his spouse live in the same household, the spouse's income and resources always must be considered in determining eligibility whether or not they are actually contributed, and that when the applicant and spouse cease to share the same household, the spouse's income will be disregarded the next month unless both are eligible for assistance, in which case the income of both is considered for six months. Greater "deeming" is authorized in States which have exercised the option under § 209(b) of the 1972 amendments to the Social Security Act of electing not to enlarge Medicaid eligibility to SSI levels. Respondent, an organization dedicated to helping the elderly, filed suit in Federal District Court attacking the regulations applicable in the § 209(b) States on the ground that "deeming" impermissibly employs an "arbitrary formula" to impute a spouse's income to an institutionalized applicant and thus is inconsistent with § 1902(a)(17)(B). Respondent claimed that before a State may take into account the spouse's income in calculating an institutionalized applicant's benefits, it must make a factual determination that the spouse's income actually is contributed to that applicant. The District Court agreed and declared the regulations invalid. The Court of Appeals affirmed, but on the ground that the regulations were invalid because the Secretary in promulgating them had failed to consider the unfairness of treating separated spouses as a "single economic unit" and the disruption caused by the requirement of support from the applicant's spouse.
Held : The regulations at issue are consistent with the statutory scheme and are reasonable exercises of the authority delegated to the Secretary. Pp. 43-50.
(a) In view of the explicit delegation of substantive authority to the Secretary in § 1902(a)(17)(B), his definition of the term "available" is entitled to "legislative effect" rather than mere deference or weight. Pp. 43-44.
(b) The language of § 1902(a)(17)(D), which was enacted as part of the original Medicaid program, makes it clear that from the beginning of the program, Congress authorized States to presume spousal support. And this provision's legislative history is fully consistent with its language. By enacting § 209(b), Congress in effect told States that wished to use the § 209(b) option that they could retain virtually all of the Medicaid eligibility limitations, including "deeming," that were allowed under the original Act. Pp. 44-47.
(c) In treating spouses differently from most other relatives by explicitly authorizing state plans "to take into account the financial responsibility" of the spouse, Congress demonstrated that "deeming" is not antithetical to the general statutory requirement that Medicaid eligibility be based solely on resources "available" to the applicant. "Available" resources are different from those in hand. The requirement of availability refers to resources left to a couple after the spouse has deducted a sum on which to live, and does not require a State to consider only the resources actually paid by the spouse to the applicant. The administration of public assistance based on the use of a formula is not inherently arbitrary. To require individual factual determinations of need would dissipate in factfinding resources that could have been spent on the needy. Pp. 47-48.
203 U.S.App.D.C. 146, 629 F.2d 180, reversed and remanded.
George W. Jones, Washington, D.C., for petitioners, pro hac vice, by special leave of Court.
Gill Deford, Los Angeles, Cal., for respondents.
Justice POWELL delivered the opinion of the Court.
1
The Medicaid program provides federal funds to States that pay for medical treatment for the poor. An individual's entitlement to Medicaid benefits depends on the financial resources "available" to him. Some States determine eligibility by assuming—"deeming"—that a portion of the spouse's income is "available" to the applicant. "Deeming" thus has the effect of reducing both the number of eligible individuals and the amount of assistance paid to those who qualify. The question in this case is whether the federal regulations that permit States to "deem" income in this manner are arbitrary, capricious, or otherwise unlawful.
2
* The Medicaid program, established in 1965 as Title XIX of the Social Security Act (Act), 79 Stat. 343, as amended, 42 U.S.C. § 1396 et seq. (1976 ed. and Supp.III), "provid[es] federal financial assistance to States that choose to reimburse certain costs of medical treatment for needy persons." Harris v. McRae, 448 U.S. 297, 301, 100 S.Ct. 2671, 2680, 65 L.Ed.2d 784 (1980). Each participating State develops a plan containing "reasonable standards . . . for determining eligibility for and the extent of medical assistance." 42 U.S.C. § 1396a(a)(17). An individual is entitled to Medicaid if he fulfills the criteria established by the State in which he lives. State Medicaid plans must comply with requirements imposed both by the Act itself and by the Secretary of Health and Human Services (Secretary). See id., § 1396a (1976 ed. and Supp.III).
A.
3
As originally enacted, Medicaid required participating States to provide medical assistance to "categorically needy" individuals who received cash payments under one of four welfare programs established elsewhere in the Act. See § 1396a(a)(10) (1970 ed.). The categorically needy were persons whom Congress considered especially deserving of public assistance because of family circumstances, age, or disability.1 States, if they wished, were permitted to offer assistance also to the "medically needy" persons lacking the ability to pay for medical expenses, but with incomes too large to qualify for categorical assistance. In either case, the Act required the States to base assessments of financial need only on "such income and resources as are, as determined in accordance with standards prescribed by the Secretary,available to the applicant or recipient." § 1396a(a)(17)(B) (emphasis added). Specifically, eligibility decisions could "not take into account the financial responsibility of any individual for any applicant or recipient of assistance . . . unless such applicant or recipient is such individual's spouse" or minor, blind, or disabled child. § 1396a(a)(17)(D).
4
Believing it reasonable to expect an applicant's spouse to help pay medical expenses, some States adopted plans that considered the spouse's income in determining Medicaid eligibility and benefits.2 These States calculated an amount considered necessary to pay the basic living expenses of the spouse and "deemed" any of the spouse's remaining income to be "available" to the applicant, even where the applicant was institutionalized and thus no longer living with the spouse.
B
5
In 1972, Congress replaced three of the four categorical assistance programs with a new program called Supplemental Security Income for the Aged, Blind, and Disabled (SSI), 42 U.S.C. § 1381 et seq., Pub.L. 92-603, 86 Stat. 1465.3 Under SSI, the Federal Government displaced the States by assuming responsibility for both funding payments and setting standards of need. In some States the number of individuals eligible for SSI assistance was significantly larger than the number eligible under the earlier, state-run categorical need programs.
6
The expansion of general welfare accomplished by SSI portended increased Medicaid obligations for some States because Congress retained the requirement that all recipients of categorical welfare assistance—now SSI—were entitled to Medicaid. Congress feared that these States would withdraw from the cooperative Medicaid program rather than expand their Medicaid coverage in a manner commensurate with the expansion of categorical assistance. "[I]n order not to impose a substantial fiscal burden on these States" or discourage them from participating, see S.Rep.No. 93-553, p. 56 (1973), Congress offered what has become known as the "§ 209(b) option."4 Under it, States could elect to provide Medicaid assistance only to those individuals who would have been eligible under the state Medicaid plan in effect on January 1, 1972.5 States thus became either "SSI States" or "§ 209(b) States" depending on the coverage that they offered.6
7
The Secretary promulgated regulations governing the administration of Medicaid benefits in both SSI States and § 209(b) States. The regulations described the circumstances in which the income of one spouse may be "deemed" available to the other. In SSI States, "deeming" is conducted in the following manner: When the applicant and his spouse live in the same household, the spouse's income and resources always are considered in determining eligibility, "whether or not they are actually contributed." 42 CFR § 435.723(b) (1980). When the applicant and spouse cease to share the same household, the spouse's income is disregarded the next month, § 435.723(d), unless both are eligible for assistance. In the latter case, the income of both is considered for six months after their separation. § 435.723(c).
8
Greater "deeming" is authorized in § 209(b) States. The regulations require such States to "deem" income at least to the extent required in SSI States. § 435.734. And, if they choose, § 209(b) States may "deem" to the full extent that they did before 1972. Ibid.7
II
9
Respondent, an organization dedicated to helping the Nation's elderly,8 filed this suit in the District Court for the District of Columbia attacking some of the Secretary's regulations applicable in § 209(b) States.9 Respondent argued that "deeming" impermissibly employs an "arbitrary formula" to impute a spouse's income to an institutionalized Medicaid applicant. According to respondent, "deeming" is inconsistent with § 1902(a)(17) of the Act, 42 U.S.C. § 1396a(a)(17), which provides that only income "available" to the applicant may be considered in establishing entitlement to and the amount of Medicaid benefits.10 In respondent's view, before a State may take into account the income of a spouse in calculating the benefits of any institutionalized applicant, the State must make a factual determination that the spouse's income actually is contributed to that applicant.
10
The District Court agreed with respondent and declared the regulations invalid. Gray Panthers v. Secretary, Dept. of HEW, 461 F.Supp. 319 (1978).11 The Court of Appeals for the District of Columbia Circuit affirmed, but under a different theory. Gray Panthers v. Administrator, Health Care Financing Administration, 203 U.S.App.D.C. 146, 629 F.2d 180 (1980). Citing this Court's decision in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), the court held that the regulations were invalid because the Secretary, in authorizing "deeming" of income between noncohabiting spouses, had failed to "tak[e] . . . into account" two "relevant factors." 203 U.S.App.D.C., at 149-150, 629 F.2d, at 183-184. First, where spouses are separated they maintain two households rather than one. For those already put to this additional expense, it is unfair to continue to treat the couple as a "single economic unit" jointly responsible for the medical expenses of each. Id., at 151, 629 F.2d, at 185. Second, the requirement of support carries with it the potential to interject "disruptive forces" into people's lives. Id., at 152, 629 F.2d, at 186. The noninstitutionalized spouse is
11
"faced with the 'choice' of reducing his or her standard of living to a point apparently set near the poverty line, or being responsible for the eviction of his or her spouse from the institution." Ibid.
12
One aspect of this "disruption," according to the court, was the fact that the "deeming" requirement creates an incentive for couples to divorce. Id., at 152, n. 14, 629 F.2d, at 186, n. 14. Because the court believed that the Secretary had not adequately considered these effects of "deeming," it affirmed the District Court's order invalidating the regulations and remanded to the Secretary for reconsideration.12
13
We granted certiorari sub nom. Harris v. Gray Panthers, 449 U.S. 1123, 101 S.Ct. 938, 67 L.Ed.2d 108 (1981), to resolve disagreement among the Courts of Appeals over the validity of "deeming" income in determining Medicaid benefits.13
III
14
Congress explicitly delegated to the Secretary broad authority to promulgate regulations defining eligibility requirements for Medicaid. We find that the regulations at issue in this case are consistent with the statutory scheme and also are reasonable exercises of the delegated power. The Court of Appeals therefore was not justified in invalidating them, and we reverse.
A.
15
The Social Security Act is among the most intricate ever drafted by Congress. Its Byzantine construction, as Judge Friendly has observed, makes the Act "almost unintelligible to the uninitiated." Friedman v. Berger, 547 F.2d 724, 727, n. 7 (CA2 1976), cert. denied, 430 U.S. 984, 97 S.Ct. 1681, 52 L.Ed.2d 378 (1977).14 Perhaps appreciating the complexity of what it had wrought, Congress conferred on the Secretary exceptionally broad authority to prescribe standards for applying certain sections of the Act. Batterton v. Francis, 432 U.S. 416, 425, 97 S.Ct. 2399, 2405, 53 L.Ed.2d 448 (1977). Of special relevance in the present case is the delegation of authority in § 1902(a)(17)(B) of the Act, 42 U.S.C. § 1396a(a)(17)(B), one of the provisions setting requirements for state Medicaid plans. Participating States must grant benefits to eligible persons "taking into account only such income and resources as are, as determined in accordance with standards prescribed by the Secretary, available to the applicant" (emphasis added).
16
In view of this explicit delegation of substantive authority, the Secretary's definition of the term "available" is "entitled to more than mere deference or weight." Batterton v. Francis, 432 U.S., at 426, 97 S.Ct., at 2406. Rather, the Secretary's definition is entitled to "legislative effect" because, "[i]n a situation of this kind, Congress entrusts to the Secretary, rather than to the courts, the primary responsibility for interpreting the statutory term." Id., at 425, 97 S.Ct., at 2405. Although we do not abdicate review in these circumstances, our task is the limited one of ensuring that the Secretary did not "excee[d] his statutory authority" and that the regulation is not arbitrary or capricious. Id., at 426, 97 S.Ct., at 2406.
B
17
We do not think that the regulations at issue, insofar as they authorize some "deeming" of income between spouses, exceed the authority conferred on the Secretary by Congress. Section 1902(a)(17)(D) of the Act, 42 U.S.C. § 1396a(a)(17)(D), enacted in 1965, provides, that, in calculating benefits, state Medicaid plans must not
18
"take into account the financial responsibility of any individual for any applicant or recipient of assistance under the plan unless such applicant or recipient is such individual's spouse or such individual's child who is under age 21 or [in certain circumstances] is blind or disabled . . . ." (Emphasis added.)
19
It thus is apparent that, from the beginning of the Medicaid program, Congress authorized States to presume spousal support. Norman v. St. Clair, 610 F.2d 1228, 1236 (CA5 1980), cert. pending sub nom. Schweiker v. Norman, No. 80-498.
20
The legislative history of this provision is fully consistent with its language. The Senate and House Reports accompanying the 1965 amendments used virtually identical language in endorsing the concept of "deeming" between spouses. The Senate Report states in pertinent part:
21
"The committee believes it is proper to expect spouses to support each other and parents to be held accountable for the support of their minor children . . . . Such requirements for support may reasonably include the payment by such relative, if able, for medical care. Beyond such degree of relationship, however, requirements imposed are often destructive and harmful to the relationships among members of the family group. Thus, States may not include in their plans provisions for requiring contributions from relatives other than a spouse or the parent of a minor child . . . ." S.Rep.No. 404, 89th Cong., 1st Sess., 78 (1965) (emphasis added).
22
Accord, H.R.Rep.No. 213, 89th Cong., 1st Sess., 68 (1965), U.S.Code Cong. & Admin.News 1965, pp. 1943, 2018.
23
Senator Long, who headed the Senate's conference delegation, summarized the effect of subsection (17) as follows:
24
"No income can be imputed to an individual unless actually available; and the financial responsibility of an individual for an applicant may be taken into account only if the applicant is the individual's spouse . . . ." 111 Cong.Rec. 18350 (1965).
25
This confirms our view that "Congress intended that income deemed from a spouse" could "be a part of the 'available' income which the state may consider in determining eligibility." Norman v. St. Clair, supra, at 1237.
26
If "deeming" were not permissible, subsection (17)(D) would be superfluous. Payments actually received by a Medicaid applicant—whether from a spouse or a more distant relative—are taken into account automatically. Thus, if there is to be content to subsection (17)(D)'s distinction between the responsibility of a spouse and that of a more distant relative, the subsection must envision that States can "deem" the income of the former but not the latter. See 610 F.2d, at 1237.
27
Respondent is unable to offer a persuasive alternative explanation of subsection (17)(D). It suggests that Congress included the subsection simply to permit States to enforce their "relative responsibility laws" against a noncontributing spouse. In other words, respondent believes that Congress intended to prohibit States from automatically taking into account a spouse's income in computing benefits, but simultaneously to authorize States to sue any spouse who failed to contribute income to a Medicaid applicant. We find this argument unpersuasive. It is not
28
"an answer to say that the state can take action against the spouse to recover that which the spouse was legally obligated to pay. [It is] unrealistic to think that the state will engage in a multiplicity of continuing individual lawsuits to recover the money that it should not have had to pay out in the first place. [Because States cannot practically do so, there would be] an open invitation for the spouse to decide that he or she does not wish to make the excess payment." Brown v. Stanton, 617 F.2d 1224, 1234 (CA7 1980) (Pell, J., dissenting in part and concurring in part), cert. pending, No. 79-1690.15
29
Nothing in the 1972 amendments suggests that Congress intended to terminate the practice of "deeming" already contained in many state plans; rather, Congress appears to have ratified this practice implicitly. As noted above, the 1972 SSI program consolidated and set national standards for three of the four categorical grant programs. Traditionally, all recipients of categorical aid were entitled to Medicaid. Congress, however, did not want to force additional Medicaid obligations on States. It therefore enacted § 209 (b) to ensure that States that do not wish to do so would not have to enlarge Medicaid eligibility to SSI levels. States using the § 209(b) option thus were told they could retain virtually all16 of the Medicaid eligibility limitations—including "deeming"—that were allowed under the original Act.
C
30
Respondent nevertheless insists that the Secretary's regulation is inconsistent with provisions of the statute and also contrary to statements in the legislative history. The Act requires Medicaid determinations to be made only on the basis of the income "available to the applicant." 42 U.S.C. § 1396a(a)(17)(B) (emphasis added). According to respondent, the use of that term demonstrates that Medicaid entitlements must be determined on the basis of income "actually in the hands . . . of the institutionalized spouse," Tr. of Oral Arg. 30, not imputed on the basis of an "arbitrary formula." Respondent acknowledges the duty of spousal support as a general matter, id., at 26-27, but argues that the Act nevertheless requires an individualized determination of availability in each case.
31
We take a different view. It is clear beyond doubt that Congress was wary of imputing the income of others to a Medicaid applicant.17 Yet, as we noted above, Congress treated spouses differently from most other relatives by explicitly authorizing state plans to "take into account the financial responsibility" of the spouse. 42 U.S.C. § 1396a(a)(17)(D). Congress thus demonstrated that "deeming" is not antithetical to the general statutory requirement that Medicaid eligibility be based solely on resources "available" to the applicant. "Available" resources are different from those in hand. We think that the requirement of availability refers to resources left to a couple after the spouse has deducted a sum on which to live. It does not, as respondent argues, permit the State only to consider the resources actually paid by the spouse to the applicant. See Herweg v. Ray, 619 F.2d 1265, 1272 (CA8 1980) (en banc) (opinion of Ross, J.) (aff'g by an equally divided court 481 F.Supp. 914 (SD Iowa 1978)), cert. pending, No. 80-60.
32
Sound principles of administration confirm our view that Congress authorized "deeming" of income between spouses. The administration of public assistance based on the use of a formula is not inherently arbitrary. Cf. Weinberger v. Salfi, 422 U.S. 749, 781, 782, 784, 95 S.Ct. 2457, 2474, 2475, 2476, 45 L.Ed.2d 522 (1975). There are limited resources to spend on welfare. To require individual determinations of need would mandate costly factfinding procedures that would dissipate resources that could have been spent on the needy. Id., at 784, 95 S.Ct., at 2476. Sometimes, of course, Congress has required individualized findings of fact.18 In this case, however, the Act and legislative history make clear that Congress approved some "deeming" of income between individuals and their spouses, at least where States had enacted rules to this effect before 1972.
IV
33
We are not without sympathy for those with minimal resources for medical care.19 But our "sympathy is an insufficient basis for approving a recovery" based on a theory inconsistent with law. Potomac Electric Power Co. v. Director OWCP, 449 U.S. 268, 284, 101 S.Ct. 509, 518, 66 L.Ed.2d 446 (1980).20 This suit is a direct attack on regulations authorizing the concept of "deeming" in the abstract. Hardships resulting from provisions in particular state plans that set aside inadequate sums for the contributing spouse, see n. 19, supra, are not at issue here.21
34
We hold that the Secretary properly exercised the authority delegated by Congress in promulgating regulations permitting "deeming" of income between spouses in § 209(b) States. Cf. Batterton v. Francis, 432 U.S. 416, 97 S.Ct. 2399, 53 L.Ed.2d 448 (1977).22 Accordingly, we reverse the decision under review and remand for proceedings consistent with this opinion.23
35
It is so ordered.
36
Justice STEVENS, with whom Justice BRENNAN and Justice MARSHALL join, dissenting.
37
The scope of the issue presented in this difficult case is confined to the situation in which a married applicant for Medicaid benefits is institutionalized. I believe that issue can be best understood by focusing our attention on an institutionalized applicant who is totally dependent for financial support on a spouse who is employed and who continues to live in what had been their joint home. Arguably the relevant statutory language1 might authorize the eligibility determination to be made in three ways: (1) none of the employed spouse's income should be deemed available to the institutionalized spouse unless it is actually contributed; (2) all of that income should be deemed available; (3) some, but not all, may be counted in determining the eligibility of the institutionalized spouse.
38
Respondent persuaded the District Court that the first reading was required by the word "available" is subpart (B) of § 1902(a)(17), and by the legislative history's emphasis on preventing the States from assuming the "availability of income which may not, in fact, be available."2 For the reasons stated by the Court, I agree that this is not a correct reading of the statute.3 The Court of Appeals decision, however, cannot be reversed on that basis. That court did not hold that deeming was never permissible; rather, it invalidated regulations which permitted virtually unlimited deeming. I am persuaded that the Court of Appeals was correct in its holding that the statute does place significant limits on the amount of income that may be deemed available to the institutionalized spouse.
39
The Court of Appeals set aside the Secretary's regulations because in promulgating those regulations the Secretary had failed to consider all relevant factors as required by Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136. Relying on the same legislative history as did the District Court, the Court of Appeals reasoned that the statutory scheme contemplated that cohabiting spouses would support each other but that Congress intended a flexible approach to apply in situations in which the basic assumption of cohabitation could not be made.4 The court thus held that the Secretary should have taken into account the impact of institutionalization of one spouse on what previously constituted a single economic unit5 and the potential disruption of the family caused by deeming.6
40
In revising her regulations after the Court of Appeals' decision, then Secretary Harris specifically considered the factors discussed by the Court of Appeals.7 Although the Secretary was required by the Court of Appeals mandate to reconsider the regulation in light of the factors discussed by the court, the court's mandate did not specify the contents of the new regulations.8 Nevertheless, the Secretary concluded that deeming in § 209(b) States should be limited in both "duration and amount."9 She cogently explained her conclusion that "deeming has several adverse impacts on beneficiaries":
41
"The institutionalized spouse may lose medicaid eligibility if the deemed amount is large enough to bring his or her income level over the State's standards. If the deemed amount is not actually contributed but the State's payments to the facility nevertheless are reduced by that amount, the individual may be asked to leave the institution. With respect to the spouse in the community, the use of deeming may also be unfair. This occurs principally because, in section 1902(f) States, the amounts that are protected for the noninstitutionalized spouse's maintenance may be set at 1972 levels. Those levels may be insufficient in light of the current cost of living. This may force the noninstitutionalized spouse either to refuse to pay the 'deemed' amount (possibly resulting in the institutionalized spouse being required to leave the facility), or to try to live at levels that are inadequate for subsistence.
42
"Moreover, when income is 'deemed,' the spouse has less of an incentive actually to contribute the amount than if relative responsibility laws are used, because deeming has an adverse effect on the institutionalized individual, whereas relative responsibility laws affect the spouse in the community by requiring him or her to make support payments. These potentially severe impacts lead us to conclude that deeming should be limited in both duration and amount."10
43
In my opinion, the Court of Appeals was correct in construing the statutory mandate that "only such income and resources as are . . . available to the applicant" may be taken into account in determining eligibility to require consideration of the impact of institutionalization of one spouse on what was previously a single economic unit. The Secretary's consideration of that factor led her to conclude that deeming "should be limited in both duration and amount." The regulations that had been in effect prior to the Court of Appeals decision permitted a State to deem, for an unlimited period, the wage earner's entire income except for an amount that might have been sufficient to supply basic living requirements in 1972. Because the wage earner and the institutionalized spouse were no longer living together and thereby sharing expenses, and because inflation in the intervening years increased the amount of those expenses, the regulations allowed a State to deem more income than could realistically be considered "available."11 This consequence was attributable to the failure of the Secretary to give adequate consideration to the factors identified by the Court of Appeals.
44
I believe the Court of Appeals was correct in perceiving this defect in the regulations and in concluding that the Secretary failed to give consideration to a relevant factor required by the statute. I would therefore affirm the judgment of the Court of Appeals.
1
The categorically needy were those entitled to assistance under four programs: Old Age Assistance, 42 U.S.C. § 301 et seq. (1970 ed.); Aid to Families with Dependent Children, § 601 et seq.; Aid to the Blind, § 1201 et seq.; and Aid to the Permanently and Totally Disabled, § 1351 et seq. See also 42 U.S.C. §§ 1381-1385 (1970 ed.).
2
The Secretary approved these state plans.
3
Thus, of the four state-administered categorical programs, only Aid to Families with Dependent Children survived the enactment of SSI.
4
Section 209(b) of the 1972 amendments, as amended, and as set forth in 42 U.S.C. § 1396a(f), provides, in pertinent part:
"Notwithstanding any other provision of this subchapter . . . no State not eligible to participate in the State plan program established under subchapter XVI of this chapter shall be required to provide medical assistance to any aged, blind, or disabled individual (within the meaning of subchapter XVI of this chapter) for any month unless such State would be (or would have been) required to provide medical assistance to such individual for such month had its plan for medical assistance approved under this subchapter and in effect on January 1, 1972, been in effect in such month except that for this purpose any such individual shall be deemed eligible for medical assistance under such State plan if (in addition to meeting such other requirements as or may be imposed under the State plan) the income of any such individual as determined in accordance with section 1396b(f) of this title (after deducting any supplemental security income payment and State supplementary payment made with respect to such individual, and incurred expenses for medical care as recognized under State law) is not in excess of the standard for medical assistance established under the State plan as in effect on January 1, 1972."
5
States exercising the § 209(b) option were required to adopt a "spend-down" provision. See ibid. Under it, an individual otherwise eligible for SSI but whose income exceeded the state standard could become eligible for Medicaid when that part of his income in excess of the standard was consumed by expenses for medical care. Ibid.
6
Fifteen States now use the § 209(b) option. They are: Connecticut, Hawaii, Illinois, Indiana, Minnesota, Mississippi, Missouri, Nebraska, New Hampshire, North Carolina, North Dakota, Ohio, Oklahoma, Utah, and Virginia. (Guam, Puerto Rico, and the Virgin Islands are similarly situated with respect to Medicaid coverage because the SSI program never took effect there.) The Secretary permits States to change from "SSI-status" to "§ 209(b)-status" at any time. New York has filed to become a § 209(b) State. Pet. for Cert. 10, n. 11.
7
The regulation provides, in pertinent part, that
"the agency must consider the income and resources of spouses and parents as available to the individual in the manner specified [for SSI States] or in a more extensive manner, but not more extensive than the requirements in effect under the Medicaid plan on January 1, 1972."
8
The District Court correctly found that respondent had standing to sue because respondent alleged and proved that some of its members are persons adversely affected by the Secretary's regulations. Compare Warth v. Seldin, 422 U.S. 490, 511, 95 S.Ct. 2197, 2211, 45 L.Ed.2d 343 (1975), with Sierra Club v. Morton, 405 U.S. 727, 735, 92 S.Ct. 1361, 1366, 31 L.Ed.2d 636 (1972). Because this is a suit against the Secretary, the District Court had subject-matter jurisdiction under 28 U.S.C. § 1331(a) without regard to the amount in controversy. Cf. Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1979); Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975).
9
The principal regulation at issue was 42 CFR § 435.734 (1980), quoted in n. 7, supra. Also challenged were "deeming" regulations applicable in Puerto Rico, Guam, and the Virgin Islands. 42 CFR §§ 436.602, 436.711, 436.821 (1980).
10
Subsection (17) provides that a state plan for medical assistance must—
"include reasonable standards . . . for determining eligibility for and the extent of medical assistance under the plan which (A) are consistent with the objectives of this subchapter, (B) provide for taking into account only such income and resources as are, as determined in accordance with standards prescribed by the Secretary, available to the applicant or recipient . . ., (C) provide for reasonable evaluation of any such income or resources, and (D) do not take into account the financial responsibility of any individual for any applicant or recipient of assistance under the plan unless such applicant or recipient is such individual's spouse or such individual's child who is under age 21 or (with respect to States eligible to participate in the State program established under subchapter XVI of this chapter), is blind or permanently and totally disabled, or is blind or disabled as defined in section 1382c of this title (with respect to States which are not eligible to participate in such program); and provide for flexibility in the application of such standards with respect to income by taking into account, except to the extent prescribed by the Secretary, the costs (whether in the form of insurance premiums or otherwise) incurred for medical care or for any other type of remedial care recognized under State law."
11
The District Court thus did not need to reach respondent's alternative arguments that the regulations deprived its members of due process and equal protection.
12
The Secretary has promulgated provisional regulations allowing § 209(b) jurisdictions either to ignore the spouse's income or to consider it to the extent that it would be considered in an SSI State. See 45 Fed.Reg. 82254 (1980). At oral argument, counsel for the Secretary said that the new regulations probably would be rescinded if the Court of Appeals' decision were reversed. Tr. of Oral Arg. 4-7. The dissenting opinion, which would affirm the reasoning of the Court of Appeals, attaches significance to the fact that the preamble to the provisional regulations incorporates the sociological analysis of the Court of Appeals' opinion. Post, at 53-56. But this reflects no independent judgment of the Secretary, and is entitled to no weight. In issuing the provisional regulations, the Secretary simply was adhering to the lower court's reasoning and mandate. 45 Fed.Reg., at 82255 (the new regulations "are based on the Court of Appeals' decision in Gray Panthers ").
13
See Herweg v. Ray, 619 F.2d 1265 (CA8 1980) (en banc), cert. pending, No. 80-60; Brown v. Stanton, 617 F.2d 1224 (CA7 1980), cert. pending, No. 79-1690; Norman v. St. Clair, 610 F.2d 1228 (CA5 1980), cert. pending sub nom. Schweiker v. Norman, No. 80-498. Although we quote passages from these decisions in this opinion, we do not necessarily endorse other language in them.
14
The District Court in the same case described the Medicaid statute as "an aggravated assault on the English language, resistant to attempts to understand it." 409 F.Supp. 1225, 1226 (SDNY 1976).
15
Counsel for respondent acknowledged at oral argument that individual suits against spouses often would be useless, even if the State made the effort to bring them, because the court might not order the spouse to pay out of funds needed to maintain a reasonable standard of living. Tr. of Oral Arg. 37-39.
16
States exercising the § 209(b) option were obliged only to amend their Medicaid plans to include a "spend-down" provision. See n. 5, supra.
17
See, e. g., S.Rep.No. 404, 89th Cong., 1st Sess., 78 (1965) (States may "not assume the availability of income which may not, in fact, be available"); 111 Cong.Rec. 15804 (1965) (remarks of Sen. Ribicoff) ("only income and resources actually available to an applicant may be considered in determining need"); id., at 7216 (remarks of Rep. Mills) ("[n]o income can be imputed to an individual unless actually available").
18
E. g., Van Lare v. Hurley, 421 U.S. 338, 95 S.Ct. 1741, 44 L.Ed.2d 208 (1975) (Aid to Families with Dependent Children (AFDC) calculations under 42 U.S.C. § 606(a)); Shea v. Vialpando, 416 U.S. 251, 94 S.Ct., 1746, 40 L.Ed.2d 120 (1974) (AFDC calculations under 42 U.S.C. § 602(a)(7)). See also Lewis v. Martin, 397 U.S. 552, 90 S.Ct. 1282, 25 L.Ed.2d 561 (1970); King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968).
19
A brief amicus curiae paints a distressing picture of individuals forced to choose between abandoning an institutionalized spouse and living in poverty. Brief for John H. Foard et al. as Amici Curiae 4-11. Yet, as the dissenting judge below pointed out, the principal "villain" in this case is not "deeming" per se, but inflation. 203 U.S.App.D.C., at 155, 629 F.2d, at 189 (MacKinnon, J., dissenting). Many States have not recently reviewed the amount that the contributing spouse may set aside for his own living expenses and thereby exempt from "deeming." As the Secretary concedes, that amount even when first set was "near subsistence level." Brief for Petitioners 4. Over time, with inflation, that dollar amount in some States may have become inadequate to support the noninstitutionalized spouse.
20
We note, in any event, that respondent's position would not eliminate difficult choices for the contributing spouse. This lawsuit seeks only to enjoin the "deeming" of income to an institutionalized spouse. Supra, at 40-41; App. 17a. Respondent thus concedes the legality of "deeming" where spouses cohabit. To adopt respondent's construction of the statute would create an incentive to shunt ailing spouses into nursing homes to circumvent the "deeming" that otherwise would occur.
21
The dissenting opinion suggests that the federal regulations authorizing "deeming" are invalid because the provisions of some state plans "allo[w] a State to deem more income than [can] realistically be considered 'available.' " Post, at 56. We think the dissent addresses a problem not presently before the Court. This case presents the question whether any "deeming" is consistent with the "availability" requirement of subsection (17)(B). We hold that it is. We do not, however, decide whether state plans that set aside inadequate sums for the contributing spouse are consistent with other provisions of the statute, such as the requirement that States "reasonabl[y] evaluat[e] . . . income or resources." 42 U.S.C. § 1396a(a)(17)(C). In sum, whatever deficiencies may exist in specific state plans are not at issue in this case.
22
The Court of Appeals thus erred in its reliance on Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). The court believed that the Secretary had not "taken the relevant factors into account." 203 U.S.App.D.C., at 150, 629 F.2d, at 184. The preceding discussion demonstrates, however, that Congress itself already had considered the "relevant factors" in authorizing "deeming" between spouses. Supra, at 44-48. In these circumstances, the Secretary need not do more. Cf. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 548-549, 98 S.Ct. 1197, 1213-1214, 55 L.Ed.2d 460 (1978).
23
By holding for respondent on statutory grounds, the lower courts pretermitted respondent's constitutional arguments. See n. 11, supra. These arguments are, of course, open to be litigated on remand. We express no view as to their merit.
1
Section 1902(a)(17) of the Social Security Act, 79 Stat. 346, as amended, and as set forth in 42 U.S.C. § 1396a(a)(17), provides:
"(a) A state plan for medical assistance must—
* * * * *
"(17) include reasonable standards (which shall be comparable for all groups and may, in accordance with standards prescribed by the Secretary, differ with respect to income levels, but only in the case of applicants or recipients of assistance under the plan who are not receiving aid or assistance under any plan of the State approved under subchapter I, X,
XIV, or XVI, or part A of subchapter IV of this chapter, and with respect to whom supplemental security income benefits are not being paid under subchapter XVI of this chapter, based on the variations between shelter costs in urban areas and in rural areas) for determining eligibility for and the extent of medical assistance under the plan which (A) are consistent with the objectives of this subchapter, (B) provide for taking into account only such income and resources as are, as determined in accordance with standards prescribed by the Secretary, available to the applicant or recipient and (in the case of any applicant or recipient who would, except for income and resources, be eligible for aid or assistance in the form of money payments under any plan of the State approved under subchapter I, X, XIV, or XVI or part A of subchapter IV, or to have paid with respect to him supplemental security income benefits under subchapter XVI of this chapter) as would not be disregarded (or set aside for future needs) in determining his eligibility for such aid, assistance or benefits, (C) provide for reasonable evaluation of any such income or resources, and (D) do not take into account the financial responsibility of any individual for any applicant or recipient of assistance under the plan unless such applicant or recipient is such individual's spouse or such individual's child who is under age 21 (with respect to States eligible to participate in the State program established under subchapter XVI of this chapter), is blind or permanently and totally disabled, or is blind or disabled as defined in section 1382c of this title (with respect to States which are not eligible to participate in such program); and provide for flexibility in the application of such standards with respect to income by taking into account, except to the extent prescribed by the Secretary, the costs (whether in the form of insurance premiums or otherwise) incurred for medical care or for any other type of remedial care recognized under State law."
2
"Another provision is included that requires States to take into account only such income and resources as . . . are actually available to the applicant or recipient . . . . Income and resources taken into account, furthermore, must be reasonably evaluated by the States. These provisions are designed so that the States will not assume the availability of income which may not, in fact, be available . . . ." S.Rep.No.404, 89th Cong., 1st Sess., 78 (1965) (emphasis supplied); see H.R.Rep.No.213, 89th Cong., 1st Sess., 67 (1965) (hereinafter 1965 House Report), U.S. Code Cong. & Admin. News 1965, p. 2018).
3
See also Norman v. St. Clair, 610 F.2d 1228, 1237-1238 (CA5 1980), cert. pending sub nom. Schweiker v. Norman, No. 80-498; Brown v. Stanton, 617 F.2d 1224, 1233-1234 (CA7 1980) (Pell, J., dissenting in part and concurring in part), cert. pending, No. 79-1690.
4
The court noted that the 1965 House Report indicated that deeming should not be employed unless the income is "in fact, available":
"These provisions are designed so that the States will not assume the availability of income which may not, in fact, be available or overevaluate income and resources which are available. Examples of income assumed include support orders from absent fathers, which have not been paid or contributions from relatives which are not in reality received by the needy individual." 1965 House Report, at 67.
Thus the legislative history recognizes that if the basic assumption underlying a support requirement is not correct, the income of the spouse or parent is not "actually available." Just as the premise that fathers should support their children should not apply when the father is absent, the premise that spouses pool income and resources to support each other should not apply when one spouse is institutionalized.
5
The court stated:
"[T]he general rule of mutual support proceeds from the assumption that the spouses maintain a common household, 'sharing' income and expenses, see 42 Fed. Reg. 2685, 2686 (1977), and constituting a single economic unit. But where institutionalization has caused one spouse to be absent from the home, two households, not one, in effect must be maintained. Expenses can no longer fairly be characterized as jointly incurred, and 'deeming' no longer accurately reflects the economic norm. An important condition that makes 'deeming' ordinarily reasonable between spouses is thus not met." Gray Panthers v. Administrator, Health Care Financing Administration, 203 U.S.App.D.C. 146, 151, 629 F.2d 180, 185.
6
"The legislative history of Section 1396(a)(17) recognizes that especially in the context of the family structure, great care must be exercised to ensure that governmental regulation does not needlessly disrupt people's lives. In contrast with the ordinary situation of cohabiting spouses, institutionalized individuals and their husbands or wives are particularly vulnerable to the disruptive forces than can be exerted by governmental regulations. In most cases the individual's continued institutionalization depends upon his or her spouse's ability (or willingness) to pay the 'deemed' amount. The spouse is thus faced with the 'choice' of reducing his or her standard of living to a point apparently set near the poverty line, or being responsible for the eviction of his or her spouse from the institution. The institutionalized individual is often literally helpless to temper the harshness of this dilemma." Id., at 152, 629 F.2d, at 186 (footnotes omitted).
7
The Secretary also considered "additional factors we believe important":
"(1) The extent to which deeming is consistent with the best interests of program beneficiaries;
"(2) The Federal-State nature of the Medicaid program;
"(3) The extent to which the regulations would be simple to administer; and
"(4) The fiscal effects of the regulations on Medicaid programs budgets." 45 Fed. Reg. 82254, 82256 (1980).
8
In response to a comment arguing that the Court of Appeals decision prohibited any deeming, the Secretary responded:
"We disagree with the commenters' interpretation of the Court of Appeals' decision. The only issue before the Court was whether deeming is appropriate in section 1902(f) States for spouses separated by institutionalization. Because the Court of Appeals ordered that we consider the factors relevant to deeming in its limited context, it authorized us to approve deeming if our consideration of the factors led to this result. We have concluded, through balancing these factors that limited deeming is appropriate in this context." Id., at 82258.
9
The new regulations apply the deeming rule currently in effect for SSI States, which permits deeming only until the month following institutionalization when only the institutionalized spouse is otherwise eligible for Medicaid and for six months when both spouses are eligible. See ibid.; 42 U.S.C. §§ 1381a, 1382(a), 1382c(b), 1382c(f).
10
45 Fed. Reg., at 82256. The Secretary further stated:
"We also believe that, although there is a general expectation that spouses should support one another, their ability to do so is substantially undermined when one spouse is institutionalized. The expectation for support is based, in part, on the assumption that spouses maintain a common household, will share income and expenses, and therefore constitute a single economic unit. However, that assumption is undercut when a spouse is institutionalized. In deciding what constituted a period of institutionalization long enough to overcome the assumption that the spouses are a household unit, we looked at the rules used in the SSI program and whether those rules were suitable for Medicaid.
"We believe that, in cases where only one spouse is eligible, the couple should no longer be viewed as maintaining a common household beginning with the month following the month of institutionalization." Id., at 82256-82257.
11
In his opinion concurring in part and dissenting in part from the Court of Appeals decision in this case, Judge MacKinnon stated:
"The only villain here is the level of need which has not been adjusted to reflect sky-rocketing costs of living. However well-intentioned, the court cannot through a remand to the Secretary affect the inflationary pressures which are particularly burdensome to people on fixed incomes." 203 U.S.App.D.C., at 155, 629 F.2d, at 189.
I believe, however, that although the courts and the Secretary cannot affect inflation, the Secretary can and should, as was done here, consider the effects of inflation on a determination of what income is "available" to an institutionalized spouse.
| 12
|
453 U.S. 1
101 S.Ct. 2615
69 L.Ed.2d 435
MIDDLESEX COUNTY SEWERAGE AUTHORITY et al., Petitioners,v.NATIONAL SEA CLAMMERS ASSOCIATION et al. JOINT MEETING OF ESSEX AND UNION COUNTIES, Petitioner, v. NATIONAL SEA CLAMMERS ASSOCIATION et al. CITY OF NEW YORK et al., Petitioners, v. NATIONAL SEA CLAMMERS ASSOCIATION et al. ENVIRONMENTAL PROTECTION AGENCY et al., Petitioners, v. NATIONAL SEA CLAMMERS ASSOCIATION et al.
Nos. 79-1711, 79-1754, 79-1760 and 80-12.
Argued Feb. 24, 1981.
Decided June 25, 1981.
Syllabus
Respondents (an organization whose members harvest fish and shellfish off the coast of New York and New Jersey and one individual member) brought suit in Federal District Court against petitioners (various governmental entities and officials from New York, New Jersey, and the Federal Government), alleging damage to fishing grounds caused by discharges and ocean dumping of sewage and other waste. Invoking a number of legal theories, respondents sought injunctive and declaratory relief and compensatory and punitive damages. The District Court granted summary judgment for petitioners. It rejected respondents' federal common-law nuisance claims on the ground that such a cause of action is not available to private parties. And as to claims based on alleged violations of the Federal Water Pollution Control Act (FWPCA) and the Marine Protection, Research, and Sanctuaries Act of 1972 (MPRSA), the court refused to allow respondents to proceed with such claims independently of the provisions of the Acts, which authorize private citizens (defined as "persons having an interest which is or may be adversely affected") to sue for injunctions to enforce the Acts, because respondents had failed to give the notice to the Environmental Protection Agency, the States, and any alleged violators required for such citizen suits. The Court of Appeals reversed. With respect to the FWPCA and MPRSA, the court held that failure to comply with the notice provisions did not preclude suits under the Acts in addition to the authorized citizen suits. The court construed the citizen-suit provisions as intended to create a limited cause of action for "private attorneys general" ("non-injured" plaintiffs), as opposed to "injured" plaintiffs such as respondents, who have an alternative basis for suit under the saving clauses in the Acts preserving any right which any person may have under "any statute or common law" to enforce any standard or limitation or to seek any other relief. The court then concluded that respondents had an implied statutory right of action. With respect to the federal common-law nuisance claims, the court rejected the District Court's conclusion that private parties may not bring such claims.
Held:
1. There is no implied right of action under the FWPCA and MPRSA. Pp. 11-21.
(a) In view of the elaborate provisions in both Acts authorizing enforcement suits by government officials and private citizens, it cannot be assumed that Congress intended to authorize by implication additional judicial remedies for private citizens suing under the Acts. In the absence of strong indicia of a contrary congressional intent, it must be concluded that Congress provided precisely the remedies it considered appropriate. Pp. 13-15.
(b) The saving clauses are ambiguous as to Congress' intent to "preserve" remedies under the Acts. It is doubtful that the phrase "any statute" in those clauses includes the very statute in which the phrase is contained. Since it is clear that the citizen-suit provisions apply only to persons who can claim some sort of injury, there is no reason to infer the existence of a separate cause of action for "injured" as opposed to "non-injured" plaintiffs, as the Court of Appeals did. Pp. 15-17.
(c) The legislative history of the Acts does not lead to contrary conclusions with respect to implied remedies under either Act. Rather such history provides affirmative support for the view that Congress intended the limitations imposed on citizen suits to apply to all private suits under the Acts. P. 17.
(d) The existence of the express remedies in both Acts demonstrates that Congress intended to supplant any remedy that otherwise might be available to respondents under 42 U.S.C. § 1983 (1976 ed., Supp. III) for violation of the Acts by any municipalities and sewerage boards among petitioners. Pp. 19-21.
2. The Federal common law of nuisance has been fully pre-empted in the area of water pollution by the FWPCA, Milwaukee v. Illinois, 451 U.S. 304, 101 S.Ct. 1784, 68 L.Ed.2d 114, and, to the extent ocean waters not covered by the FWPCA are involved, by the MPRSA. P. 21-22.
616 F.2d 1222 (3rd Cir.), vacated and remanded.
Milton B. Conford, Elberon, N. J., for petitioners in Nos. 79-1711, 79-1754 and 79-1760.
Alan I. Horowitz, Washington, D. C., for petitioners in No. 80-12 and federal respondents in Nos. 79-1711, 79-1754 and 79-1760.
Robert P. Corbin, Philadelphia, Pa., for respondents, National Sea Clammers Association, et al.
Justice POWELL delivered the opinion of the Court.
1
In these cases, involving alleged damage to fishing grounds caused by discharges and ocean dumping of sewage and other waste, we are faced with questions concerning the availability of a damages remedy, based either on federal common law or on the provisions of two Acts—the Federal Water Pollution Control Act (FWPCA), 86 Stat. 816, as amended, 33 U.S.C. § 1251 et seq. (1976 ed. and Supp.III), and the Marine Protection, Research, and Sanctuaries Act of 1972 (MPRSA), 86 Stat. 1052, as amended, 33 U.S.C. § 1401 et seq. (1976 ed. and Supp.III).
2
* Respondents are an organization whose members harvest fish and shellfish off the coast of New York and New Jersey, and one individual member of that organization. In 1977, they brought suit in the United States District Court for the District of New Jersey against petitioners—various governmental entities and officials from New York,1 New Jersey,2 and the Federal Government.3 Their complaint alleged that sewage, sewage "sludge," and other waste materials were being discharged into New York Harbor and the Hudson River by some of the petitioners. In addition it complained of the dumping of such materials directly into the ocean from maritime vessels. The complaint alleged that, as a result of these activities, the Atlantic Ocean was becoming polluted, and it made special reference to a massive growth of algae said to have appeared offshore in 1976.4 It then stated that this pollution was causing the "collapse of the fishing, clamming and lobster industries which operate in the waters of the Atlantic Ocean."5
3
Invoking a wide variety of legal theories,6 respondents sought injunctive and declaratory relief, $250 million in compensatory damages, and $250 million in punitive damages. The District Court granted summary judgment to petitioners7 on all counts of the complaint.8
4
In holdings relevant here, the District Court rejected respondents' nuisance claim under federal common law, see Illinois v. Milwaukee, 406 U.S. 91, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972), on the ground that such a cause of action is not available to private parties. With respect to the claims based on alleged violations of the FWPCA, the court noted that respondents had failed to comply with the 60-day notice requirement of the "citizen suit" provision in § 505(b)(1)(A) of the Act, 86 Stat. 888, 33 U.S.C. § 1365(b)(1)(A). This provision allows suits under the Act by private citizens, but authorizes only prospective relief, and the citizen plaintiffs first must give notice to the EPA, the State, and any alleged violator. Ibid.9 Because respondents did not give the requisite notice, the court refused to allow them to proceed with a claim under the Act independent of the citizen-suit provision and based on the general jurisdictional grant in 28 U.S.C. § 1331.10 The court applied the same analysis to respondents' claims under the MPRSA, which contains similar citizen-suit and notice provisions. 33 U.S.C. § 1415(g).11 Finally, the court rejected a possible claim of maritime tort, both because respondents had failed to plead such claim explicitly and because they had failed to comply with the procedural requirements of the federal and state Tort Claims Acts.12
5
The United States Court of Appeals for the Third Circuit reversed as to the claims based on the FWPCA, the MPRSA, the federal common law of nuisance, and maritime tort. Na- tional Sea Clammers Assn. v. City of New York, 616 F.2d 1222 (1980). With respect to the FWPCA, the court held that failure to comply with the 60-day notice provision in § 505(b)(1)(A), 33 U.S.C. § 1365(b)(1)(A), does not preclude suits under the Act in addition to the specific "citizen suits" authorized in § 505. It based this conclusion on the saving clause in § 505(e), 33 U.S.C. § 1365(e), preserving "any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any effluent standard or limitation or to seek any other relief." 616 F.2d at 1226-1228; see n.10, supra. The Court of Appeals then went on to apply our precedents in the area of implied statutory rights of action,13 and concluded that "Congress intended to permit the federal courts to entertain a private cause of action implied from the terms of the [FWPCA], preserved by the savings clause of the Act, on behalf of individuals or groups of individuals who have been or will be injured by pollution in violation of its terms." 616 F.2d, at 1230-1231.
6
The court then applied this same analysis to the MPRSA, concluding again that the District Court had erred in dismissing respondents' claims under this Act. Although the court was not explicit on this question, it apparently concluded that suits for damages, as well as for injunctive relief, could be brought under the FWPCA and the MPRSA.14
7
With respect to the federal common-law nuisance claims, the Court of Appeals rejected the District Court's conclusion that private parties may not bring such claims. It also held, applying common-law principles, that respondents "alleged sufficient individual damage to permit them to recover damages for this essentially public nuisance." Id., at 1234. It thus went considerably beyond Illinois v. Milwaukee, 406 U.S. 91, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972), which involved purely prospective relief sought by a state plaintiff.15
8
Petitions for a writ of certiorari raising a variety of arguments were filed in this Court by a group of New Jersey sewerage authorities (No. 79-1711), by the Joint Meeting of Essex and Union Counties in New Jersey (No. 79-1754), by the City and Mayor of New York (No. 79-1760), and by all of the federal defendants named in this suit (No. 80-12).16 We granted these petitions, 449 U.S. 917, 101 S.Ct. 314, 66 L.Ed.2d 145, limiting review to three questions: (i) whether FWPCA and MPRSA imply a private right of action independent of their citizen-suit provisions, (ii) whether all federal common-law nuisance actions concerning ocean pollution now are pre-empted by the legislative scheme contained in the FWPCA and the MPRSA, and (iii) if not, whether a private citizen has standing to sue for damages under the federal common law of nuisance. We hold that there is no implied right of action under these statutes and that the federal common law of nuisance has been fully pre-empted in the area of ocean pollution.17
II
9
The Federal Water Pollution Control Act was first enacted in 1948. Act of June 30, 1948, 62 Stat. 1155. It emphasized state enforcement of water quality standards. When this legislation proved ineffective, Congress passed the Federal Water Pollution Control Act Amendments of 1972, Pub.L. 92-500, 86 Stat. 816, 33 U.S.C. § 1251 et seq. The Amendments shifted the emphasis to "direct restrictions on discharges," EPA v. California ex rel. State Water Resources Control Board, 426 U.S. 200, 204, 96 S.Ct. 2022, 2024, 48 L.Ed.2d 578 (1976), and made it "unlawful for any person to discharge a pollutant without obtaining a permit and complying with its terms," id., at 205, 96 S.Ct., at 2025.18 While still allowing for state administration and enforcement under federally approved state plans, §§ 402(b), (c), 33 U.S.C. §§ 1342(b), (c), the Amendments created various federal minimum effluent standards, §§ 301-307, 33 U.S.C. §§ 1311-1317.
10
The Marine Protection, Research, and Sanctuaries Act of 1972, Pub.L. 92-532, 86 Stat. 1052, sought to create comprehensive federal regulation of the dumping of materials into ocean waters near the United States coastline. Section 101(a) of the Act requires a permit for any dumping into ocean waters, when the material is transported from the United States or on an American vessel or aircraft. 33 U.S.C. § 1411(a).19 In addition, it requires a permit for the dumping of material transported from outside the United States into the territorial seas or in the zone extending 12 miles from the coastline, "to the extent that it may affect the territorial sea or the territory of the United States." § 1411(b).
11
The exact nature of respondents' claims under these two Acts is not clear, but the claims appear to fall into two categories. The main contention is that the EPA and the Army Corps of Engineers have permitted the New Jersey and New York defendants to discharge and dump pollutants in amounts that are not permitted by the Acts. In addition, they seem to allege that the New York and New Jersey defendants have violated the terms of their permits. The question before us is whether respondents may raise either of these claims in a private suit for injunctive and monetary relief, where such a suit is not expressly authorized by either of these Acts.20
12
* It is unnecessary to discuss at length the principles set out in recent decisions concerning the recurring question whether Congress intended to create a private right of action under a federal statute without saying so explicitly.21 The key to the inquiry is the intent of the Legislature. Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 639, 101 S.Ct. 2061, 2066, 68 L.Ed.2d 500 (1981); California v. Sierra Club, 451 U.S. 287, 293, 101 S.Ct. 1775, 1779, 68 L.Ed.2d 101 (1981); Universities Research Assn. v. Coutu, 450 U.S. 754, 770, 101 S.Ct. 1451, 1461, 67 L.Ed.2d 662 (1981); Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 15, 100 S.Ct. 242, 245, 62 L.Ed.2d 146 (1979); Touche Ross & Co. v. Redington, 442 U.S. 560, 568, 99 S.Ct. 2479, 2485, 61 L.Ed.2d 82 (1979). We look first, of course, to the statutory language, particularly to the provisions made therein for enforcement and relief. Then we review the legislative history and other traditional aids of statutory interpretation to determine congressional intent.
13
These Acts contain unusually elaborate enforcement provisions, conferring authority to sue for this purpose both on government officials and private citizens. The FWPCA, for example, authorizes the EPA Administrator to respond to violations of the Act with compliance orders and civil suits. § 309, 33 U.S.C. § 1319.22 He may seek a civil penalty of up to $10,000 per day, § 309(d), 33 U.S.C. § 1319(d), and criminal penalties also are available, § 309(c), 33 U.S.C. § 1319(c). States desiring to administer their own permit programs must demonstrate that state officials possess adequate authority to abate violations through civil or criminal penalties or other means of enforcement. § 402(b)(7), 33 U.S.C. § 1342(b)(7). In addition, under § 509(b), 33 U.S.C. § 1342(b)(7). In addition, under § 509(b), 33 U.S.C. § 1369(b), "any interested person" may seek judicial review in the United States courts of appeals of various particular actions by the Administrator, including establishment of effluent standards and issuance of permits for discharge of pollutants.23 Where review could have been obtained under this provision, the action at issue may not be challenged in any subsequent civil or criminal proceeding for enforcement. § 1369(b)(2).
14
These enforcement mechanisms, most of which have their counterpart under the MPRSA,24 are supplemented by the express citizen-suit provisions in § 505(a) of the FWPCA, 33 U.S.C. § 1365(a), and § 105(g) of the MPRSA, 33 U.S.C. § 1415(g). See nn. 9, 11, supra. These citizen-suit provisions authorize private persons to sue for injunctions to enforce these statutes.25 Plaintiffs invoking these provisions first must comply with specified procedures—which respondents here ignored—including in most cases 60 days' prior notice to potential defendants.
15
In view of these elaborate enforcement provisions it cannot be assumed that Congress intended to authorize by implication additional judicial remedies for private citizens suing under MPRSA and FWPCA. As we stated in Transamerica Mortgage Advisors, supra, "it is an elemental canon of statutory construction that where a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it." 444 U.S., at 19, 100 S.Ct., at 247. See also Touche Ross & Co. v. Redington, supra, at 571-574, 99 S.Ct., at 2486-2488. In the absence of strong indicia of a contrary congressional intent, we are compelled to conclude that Congress provided precisely the remedies it considered appropriate.
16
As noted above, the Court of Appeals avoided this inference. Discussing the FWPCA, it held that the existence of a citizen-suit provision in § 505(a) does not rule out implied forms of private enforcement of the Act. It arrived at this conclusion by asserting that Congress intended in § 505(a) to create a limited cause of action for "private attorneys general"—"non-injured member[s] of the public" suing to promote the general welfare rather than to redress an injury to their own welfare. 616 F.2d, at 1227. It went on to conclude:
17
"A private party who is injured by the alleged violation, as these plaintiffs allege they were, has an alternate basis for suit under section 505(e), 33 U.S.C. § 1365(e), and the general federal question jurisdiction of the Judicial Code, 28 U.S.C. § 1331 (1976). Section 505(e) is a savings clause that preserves all rights to enforce the Act or seek relief against the Administrator. Coupled with the general federal question jurisdiction it permits this suit to be brought by these parties." Ibid. (footnotes omitted) (emphasis added).
18
There are at least three problems with this reasoning. First, the language of the saving clause on which the Court of Appeals relied, see n. 10, supra, is quite ambiguous concerning the intent of Congress to "preserve" remedies under the FWPCA itself. It merely states that nothing in the citizen-suit provision "shall restrict any right which any person . . . may have under any statute or common law to seek enforcement of any effluent standard or limitation or to seek any other relief." It is doubtful that the phrase "any statute" includes the very statute in which this statement was contained.26
19
Moreover, the reasoning on which the Court of Appeals relied is flawed for another reason. It draws a distinction between "non-injured" plaintiffs who may bring citizen suits to enforce provisions of these Acts, and the "injured" plaintiffs in this litigation who claim a right to sue under the Acts, not by virtue of the citizen-suit provisions, but rather under the language of the saving clauses. In fact, it is clear that the citizen-suit provisions apply only to persons who can claim some sort of injury and there is, therefore, no reason to infer the existence of a separate right of action for "injured" plaintiffs. "Citizen" is defined in the citizen-suit section of the FWPCA as "a person or persons having an interest which is or may be adversely affected." § 505(g), 33 U.S.C. § 1365(g). It is clear from the Senate Conference Report that this phrase was intended by Congress to allow suits by all persons possessing standing under this Court's decision in Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). See S.Conf.Rep. No. 92-1236, p. 146 (1972). This broad category of potential plaintiffs necessarily includes both plaintiffs seeking to enforce these statutes as private attorneys general, whose injuries are "noneconomic" and probably noncompensable, and persons like respondents who assert that they have suffered tangible economic injuries because of statutory violations.
20
Finally, the Court of Appeals failed to take account of the rest of the enforcement scheme expressly provided by Congress including the opportunity for "any interested person" to seek judicial review of a number of EPA actions within 90 days, § 509(b), 33 U.S.C. § 1369(b). See supra, at 13-14.
21
The Court of Appeals also applied its reasoning to the MPRSA. But here again we are persuaded that Congress evidenced no intent to authorize by implication private remedies under these Acts apart from the expressly authorized citizen suits. The relevant provisions in the MPRSA are in many respects almost identical to those of the FWPCA. 33 U.S.C. § 1415(g). Although they do not expressly limit citizen suits to those who have suffered some injury from a violation of the Act, we are not persuaded by this fact alone that Congress affirmatively intended to imply the existence of a parallel private remedy, after setting out expressly the manner in which private citizens can seek to enjoin violations.
22
In Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2088, 45 L.Ed.2d 26 (1975), the Court identified several factors that are relevant to the question of implied private remedies. These include the legislative history. See ibid. ("Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one?") This history does not lead to a contrary conclusion with respect to implied remedies under either Act. Indeed, the Reports and debates provide affirmative support for the view that Congress intended the limitations imposed on citizen suits to apply to all private suits under these Acts.27 Thus, both the structure of the Acts and their legislative history lead us to conclude that Congress intended that private remedies in addition to those expressly provided should not be implied.28 Where, as here, Congress has made clear that implied private actions are not contemplated, the courts are not authorized to ignore this legislative judgment.
B
23
Although the parties have not suggested it, there remains a possible alternative source of express congressional authorization of private suits under these Acts. Last Term, in Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), the Court construed 42 U.S.C. § 1983 as authorizing suits to redress violations by state officials of rights created by federal statutes. Accordingly, it could be argued that respondents may sue the municipalities and sewerage boards among the petitioners29 under the FWPCA and MPRSA by virtue of a right of action created by § 1983.
24
It is appropriate to reach the question of the applicability of Maine v. Thiboutot to this setting, despite the failure of respondents to raise it here or below. This litigation began long before that decision. Moreover, if controlling, this argument would obviate the need to consider whether Congress intended to authorize private suits to enforce these particularly federal statutes. The claim brought here arguably falls within the scope of Maine v. Thiboutot because it involves a suit by a private party claiming that a federal statute has been violated under color of state law, causing an injury. The Court, however, has recognized two exceptions to the application of § 1983 to statutory violations. In Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981), we remanded certain claims for a determination (i) whether Congress had foreclosed private enforcement of that statute in the enactment itself, and (ii) whether the statute at issue there was the kind that created enforceable "rights" under § 1983. Id., at 28, 101 S.Ct., at 1545. In the present cases, because we find that Congress foreclosed a § 1983 remedy under these Acts, we need not reach the second question whether these Acts created "rights, privileges, or immunities" within the meaning of § 1983.
25
When the remedial devices provided in a particular Act are sufficiently comprehensive, they may suffice to demonstrate congressional intent to preclude the remedy of suits under § 1983. As Justice STEWART, who later joined the majority in Maine v. Thiboutot, stated in Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 673, n. 2, 99 S.Ct. 1905, 1945, n. 2, 60 L.Ed.2d 508 (1979) (dissenting opinion), when "a state official is alleged to have violated a federal statute which provides its own comprehensive enforcement scheme, the requirements of that enforcement procedure may not be bypassed by bringing suit directly under § 1983."30 As discussed above, the FWPCA and MPRSA do provide quite comprehensive enforcement mechanisms. It is hard to believe that Congress intended to preserve the § 1983 right of action when it created so many specific statutory remedies, including the two citizen-suit provisions.31 See Chesapeake Bay Foundation v. Virginia State Water Control Board, 501 F.Supp. 821 (ED Va. 1980) (rejecting a § 1983 action under the FWPCA against the Chairman of a State Water Board, with reasoning based on the comprehensiveness of the remedies provided and the federalism concerns raised). We therefore conclude that the existence of these express remedies demonstrates not only that Congress intended to foreclose implied private actions but also that it intended to supplant any remedy that otherwise would be available under § 1983. Cf. Carlson v. Green, 446 U.S. 14, 23, 100 S.Ct. 1468, 1474, 64 L.Ed.2d 15 (1980).
III
26
The remaining two issues on which we grant certiorari relate to respondents' federal claims based on the federal common law of nuisance. The principal precedent on which these claims were based is Illinois v. Milwaukee, 406 U.S. 91, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972), where the Court found that the federal courts have jurisdiction to consider the federal common-law issues raised by a suit for injunctive relief by the State of Illinois against various Wisconsin municipalities and public sewerage commissions, involving the discharge of sewage into Lake Michigan. In these cases, we need not decide whether a cause of action may be brought under federal common law by a private plaintiff, seeking damages. The Court has now held that the federal common law of nuisance in the area of water pollution is entirely pre-empted by the more comprehensive scope of the FWPCA, which was completely revised soon after the decision in Illinois v. Milwaukee. See Milwaukee v. Illinois, 451 U.S. 304, 101 S.Ct. 1784, 68 L.Ed.2d 114 (1981).
27
This decision disposes entirely of respondents' federal common-law claims, since there is no reason to suppose that the pre-emptive effect of the FWPCA is any less when pollution of coastal waters is at issue. To the extent that this litigation involves ocean waters not covered by the FWPCA, and regulated under the MPRSA, we see no cause for different treatment of the pre-emption question. The regulatory scheme of the MPRSA is no less comprehensive, with respect to ocean dumping, than are analogous provisions of the FWPCA.32
28
We therefore must dismiss the federal common-law claims because their underlying legal basis is now pre-empted by statute. As discussed above, we also dismiss the claims under the MPRSA and the FWPCA because respondents lack a right of action under those statutes. We vacate the judgment below with respect to these two claims, and remand for further proceedings.
29
It is so ordered.
30
Justice STEVENS, with whom Justice BLACKMUN joins, concurring in the judgment in part and dissenting in part.
31
When should a person injured by a violation of federal law be allowed to recover his damages in a federal court? This seemingly simple question has recently presented the Court with more difficulty than most substantive questions that come before us.1 During most of our history, however, a simple presumption usually provided the answer. Although criminal laws and legislation enacted for the benefit of the public at large were expected to be enforced by public officials, a statute enacted for the benefit of a special class presumptively afforded a remedy for members of that class injured by violations of the statute. See Texas & Pacific R. Co. v. Rigsby, 241 U.S. 33, 39-40, 36 S.Ct. 482, 484, 60 L.Ed. 874.2 Applying that presumption, our truly conservative federal judges—men like Justice Harlan,3 Justice Clark,4 Justice Frankfurter,5 and Judge Kirkpatrick6—readily concluded that it was appropriate to allow private parties who had been injured by a violation of statute enacted for their special benefit to obtain judicial relief. For rules are meant to be obeyed, and those who violate them should be held responsible for their misdeeds. See Rigsby, supra, 241 U.S., at 39, 36 S.Ct., at 484. Since the earliest days of the common law, it has been the business of courts to fashion remedies for wrongs.7
32
In recent years, however, a Court that is properly concerned about the burdens imposed upon the federal judiciary, the quality of the work product of Congress, and the sheer bulk of new federal legislation, has been more and more reluctant to open the courthouse door to the injured citizen. In 1975, in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26, the Court cut back on the simple common-law presumption by fashioning a four-factor formula that led to the denial of relief in that case.8 Although multifactor balancing tests generally tend to produce negative answers, more recently some Members of the Court have been inclined to deny relief with little more than a perfunctory nod to the Cort v. Ash factors. See, e. g., California v. Sierra Club, 451 U.S. 287, 302, 101 S.Ct. 1775, 1783, 68 L.Ed.2d 101 (REHNQUIST, J., concurring in judgment). The touchstone now is congressional intent. See ante, at 13. Because legislative history is unlikely to reveal affirmative evidence of a congressional intent to authorize a specific procedure that the statute itself fails to mention,9 that touchstone will further restrict the availability of private remedies.
33
Although I agree with the Court's disposition of the implied-private-right-of-action question in these cases, I write separately to emphasize that the Court's current approach to the judicial task of fashioning appropriate remedies for violations of federal statutes is out of step with the Court's own history and tradition. More importantly, I believe that the Court's appraisal of the intent expressed by Congress in the Federal Water Pollution Control Act Amendments of 1972 (Clean Water Act), 33 U.S.C. § 1251 et seq. (1976 ed. and Supp. III), and the Marine Protection, Research, and Sanctuaries Act of 1972 (MPRSA), 33 U.S.C. § 1401 et seq. (1976 ed. and Supp. III), with respect to the availability of private remedies under other federal statutes or the federal common law is palpably wrong.
34
In the present context of these cases, we of course know nothing about the ultimate merits of the claims asserted by respondents. As the cases come to us, however, we must make certain assumptions in analyzing the questions presented. First, we must assume that the complaint speaks the truth when it alleges that the petitioners have dumped large quantities of sewage and toxic waste in the Atlantic Ocean and its tributaries, and that these dumping operations have violated the substantive provisions of the Clean Water Act and the MPRSA. See Northwest Airlines, Inc. v. Transport Workers, 451 U.S. 77, 80, n. 3, 101 S.Ct. 1571, 1575, n. 3, 67 L.Ed.2d 750. Second, we must also assume that these illegal operations have caused an injury to respondents' commercial interests. Third, because some of the petitioners are "persons" who allegedly acted under color of state law, as the Court recognizes, see ante, at 19, and n. 29, we must assume that 42 U.S.C. § 1983 (1976 ed., Supp. III)10 provides an express remedy for their violations of these two federal statutes, unless Congress has expressly withdrawn that remedy. See Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555. Finally we must assume that, apart from these two statutes, the dumping operations of petitioners would constitute a common-law nuisance for which respondents would have a federal remedy. The net effect of the Court's analysis of the legislative intent is therefore a conclusion that Congress, by enacting the Clean Water Act and the MPRSA, deliberately deprived respondents of effective federal remedies that would otherwise have been available to them. In my judgment, the language of both statutes, as well as their legislative history, belies this improbable conclusion.
35
* The Court's holding that Congress decided in the Clean Water Act and the MPRSA to withdraw the express remedy provided by 42 U.S.C. § 1983 (1976 ed., Supp. III) seems to rest on nothing more than the fact that these statutes provide other express remedies and do not mention § 1983. Because the enforcement mechanisms provided in the statutes are "quite comprehensive," the Court finds it "hard to believe that Congress intended to preserve the § 1983 right of action. . . ." Ante, at 20. There are at least two flaws in this reasoning. First, the question is not whether Congress "intended to preserve the § 1983 right of action," but rather whether Congress intended to withdraw that right of action.11 Second, I find it not at all hard to believe that Congress intended to preserve, or, more precisely, did not intend to withdraw, the § 1983 remedy because Congress made this intention explicit in the language of both statutes and in the relevant legislative history.
36
I agree with the Court that the remedial provisions of the Clean Water Act and the MPRSA are "quite comprehensive." I cannot agree, however, with the Court's implicit conclusion that this determination ends the inquiry under Maine v. Thiboutot, supra. The question that must be answered in determining whether respondents may pursue their claims under § 1983 is whether Congress intended that the remedies provided in the substantive statutes be exclusive. See Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 28, 101 S.Ct. 1531, 1545, 67 L.Ed.2d 694. Because Congress did not expressly address this question in the statutes, the Court looks elsewhere for an answer and finds it in the comprehensive character of the express statutory remedies. I have no quarrel as a general matter with the proposition that a comprehensive remedial scheme can evidence a congressional decision to preclude other remedies. Cf. Northwest Airlines, Inc., supra, 451 U.S., at 93-94, 101 S.Ct., at 1581-1582. However, we must not lose sight of the fact that our evaluation of a statute's express remedies is merely a tool used to discern congressional intent; it is not an end in itself. No matter how comprehensive we may consider a statute's remedial scheme to be, Congress is at liberty to leave other remedial avenues open. Express statutory language or clear references in the legislative history will rebut whatever presumption of exclusivity arises from comprehensive remedial provisions. In my judgment, in these cases we are presented with both express statutory language and clear references in the legislative history indicating that Congress did not intend the express remedies in the Clean Water Act and the MPRSA to be exclusive.
37
Despite their comprehensive enforcement mechanisms, both statutes expressly preserve all legal remedies otherwise available. The statutes state in so many words that the authorization of an express remedy in the statute itself shall not give rise to an inference that Congress intended to foreclose other remedies. Thus, § 505(e) of the Clean Water Act states:
38
"Nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any effluent standard or limitation or to seek any other relief (including relief against the Administrator or a State agency)." 33 U.S.C. § 1365(e).
And, § 105(g)(5) of the MPRSA states:
39
"The injunctive relief provided by this subsection shall not restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any standard or limitation or to seek any other relief (including relief against the Administrator, the Secretary, or a State agency)." 33 U.S.C. § 1415(g)(5).
40
Respondents' right to proceed under § 1983 in light of these statutory provisions could have been made more plain only had Congress substituted the citation "42 U.S.C. § 1983" for the words "any statute" in the saving clauses.
41
The legislative history of both statutes makes it clear that the saving clauses were intended to mean what they say. The Senate Report on the Clean Water Act states:
42
"It should be noted, however, that the section would specifically preserve any rights or remedies under any other law. Thus, if damages could be shown, other remedies would remain available. Compliance with requirements under this Act would not be a defense to a common law action for pollution damages." S.Rep.No.92-414, p. 81 (1971), U.S. Code Cong. & Admin. News 1972, p. 3746.
43
See also H.R.Rep.No.92-911, p. 134 (1972). And the corresponding report on the MPRSA similarly states that the authorization of citizen suits shall not restrict or supersede "any other right to legal action which is afforded the potential litigant in any other statute or the common law." S.Rep.No.92-451, pp. 23-24 (1971), U.S. Code Cong. & Admin. News 1972, p. 4250. See also H.R.Rep.No.92-361, p. 23 (1971).
44
The words "any other law" in the former Report and "any other statute" in the latter surely encompass 42 U.S.C. § 1983 (1976 ed., Supp. III), as do the words "any statute" in the saving clauses themselves. It therefore seems little short of remarkable that unambiguous expressions of legislative intent such as these can be read to express a purpose to withdraw the express statutory remedy provided by § 1983.
45
The Court, of course, discusses the saving clauses and this legislative history elsewhere in its opinion. See ante, at 15-17, and n. 26. In rejecting the Court of Appeals' conclusion, based in part on the saving clauses, that respondents may invoke implied rights of action under the Clean Water Act and the MPRSA, the Court finds it "doubtful" that the phrase "any statute" in the saving clauses refers to the very statutes in which the clauses appear. See ante, at 15-16. The Court's doubt is reinforced by use of the word "other" in the passages from the Senate Reports quoted above. See ante, at 16, n. 26. Thus, the Court holds that the statutory phrase "any statute" does not refer to the Clean Water Act or the MPRSA; the Court apparently also holds that it does not refer to § 1983, even though that statute clearly qualifies as "any other statute" or "any other law," within the meaning of the legislative history.12
46
In my judgment, the Court has failed to uncover "a clear congressional mandate"13 to withdraw the § 1983 remedy otherwise available to the respondents. Moreover, the statutory language and the legislative history reveal the exact opposite: a clear congressional mandate to preserve all existing remedies, including a private right of action under § 1983. I therefore respectfully dissent from this portion of the Court's decision.
II
47
The effect of the Court's holding in Milwaukee v. Illinois, 451 U.S. 304, 101 S.Ct. 1784, 68 L.Ed.2d 114, was to make the city of Milwaukee's compliance with the requirements of the Clean Water Act a complete defense to a federal common-law nuisance action for pollution damage. It was, and still is, difficult for me to reconcile that holding with the excerpts from the statutes and the Senate Reports quoted above—particularly the statement:
48
"Compliance with requirements under this Act would not be a defense to a common law action for pollution damages." S.Rep.No.92-414, at 81 (1971), U.S. Code Cong. & Admin. News 1972, p. 3746.
49
Today, the Court pursues the pre-emption rationale of Milwaukee v. Illinois to its inexorable conclusion and holds that even noncompliance with the requirements of the Clean Water Act and the MPRSA is a defense to a federal common-law nuisance claim.14 Because Justice BLACKMUN has already exposed in detail the flaws in the Court's treatment of this issue, see Milwaukee v. Illinois, supra, at 333-347, 101 S.Ct., at 1800-1808 (dissenting opinion), I merely note that the reasoning in his dissenting opinion in Milwaukee applies with special force in this case.15
III
50
Although I agree with the Court's holding that neither of these statutes implicitly authorizes a private damages remedy, I reach that conclusion by a different route. Under the traditional common-law analysis discussed supra, at 23-24, the primary question is whether the statute was enacted for the special benefit of a particular class of which the plaintiff is a member. See Texas & Pacific R. Co. v. Rigsby, 241 U.S., at 39-40, 36 S.Ct., at 484. As we have held in the past, "[t]hat question is answered by looking to the language of the statute itself." Cannon v. University of Chicago, 441 U.S. 677, 689, 99 S.Ct. 1946, 1953, 60 L.Ed.2d 560.
51
The language of neither the Clean Water Act nor the MPRSA defines any such special class. Both the substantive provisions of these statutes and the breadth of their authorizations of citizen suits indicate that they were "enacted for the protection of the general public." Cannon, supra, at 690, 99 S.Ct., at 1954.16 Thus, even under the more liberal approach to implied rights of action represented by Rigsby and its antecedents, respondents cannot invoke implied private remedies under these statutes. See generally California v. Sierra Club, 451 U.S., at 294-296, 101 S.Ct., at 1779-1780.
52
The conclusion required by the statutory language is fortified by the legislative history on which the Court relies. I agree that the legislative deliberations about civil remedies under the Clean Air Act, see ante, at 17-18, n. 27, illuminate the meaning of the Clean Water Act and the MPRSA—since these statutes were enacted only a short time later and had similar environmental objectives—and that those deliberations reveal a conscious congressional choice not to authorize a new statutory damages remedy. Accordingly, I agree with the conclusion reached by the Court in Part II-A of its opinion, but I respectfully dissent from the remainder of its judgment.
1
The New York defendants were the New York Department of Environmental Conservation; Ogden R. Reid, individually and as Commissioner of that Department; the City of New York; Abraham Beame, Mayor of New York City; the West Long Beach Sewer District; the County of Westchester Department of Environmental Facilities; the city of Long Beach; and the city of Glen Cove.
2
The New Jersey defendants were the New Jersey Department of Environmental Protection; David J. Bardin, individually and as Commissioner of that Department; the Bergen County Sewer Authority; the Joint Meeting of Essex and Union Counties; the Passaic Valley Sewerage Commissioners; the Middlesex County Sewerage Authority; the Linden-Roselle Sewerage Authority; and the Middletown Sewerage Authority.
3
The federal defendants were the Environmental Protection Agency; Russell E. Train, individually and as EPA Administrator; the Army Corps of Engineers; and Martin R. Hoffman, individually and as Secretary of the Army.
4
The complaint alleged that this growth of algae was caused by the discharges of sewage and "covered an area of the Atlantic Ocean ranging from approximately the southwest portion of Long Island, New York to a point approximately due east of Cape May, New Jersey, and extending from a few miles offshore to more than 20 miles out to sea," Complaint ¶ 35, App. 25a. Respondents' brief in this Court states that when
"this massive algal bloom died, its residuals settled on the ocean floor, creating a condition of anoxia, or oxygen deficiency, in and about the water near the ocean's floor. This condition resulted in the death and destruction of an enormous amount of marine life, particularly with respect to the shellfish and other ocean-bottom dwellers and other marine life unable to escape the blighted area." Brief for Respondents 4.
5
Complaint ¶ 39, App. 26a.
6
Respondents based claims on the FWPCA; the MPRSA; federal common law; § 13 of the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. § 407; the National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq.; New York and New Jersey environmental statutes; the Fifth, Ninth, and Fourteenth Amendments to the United States Constitution; 46 U.S.C. § 740; the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq.; and state tort law.
7
The court previously had dismissed claims against the New York and New Jersey environmental protection agencies and their directors. These defendants are not among the petitioners in this Court.
8
The court's judgment with respect to the pendent state-law claims was without prejudice.
9
Section 505, as set forth in 33 U.S.C. § 1365, provides, in part:
"(a) Except as provided in subsection (b) of this section, any citizen may commence a civil action on his own behalf—
"(1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation, or
"(2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator.
"The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce such an effluent standard or limitation, or such an order, or to order the Administrator to perform such act or duty, as the case may be, and to apply any appropriate civil penalties under section 1319(d) of this title.
"(b) No action may be commenced—
"(1) under subsection (a)(1) of this section—
"(A) prior to sixty days after the plaintiff has given notice of the alleged violation (i) to the Administrator, (ii) to the State in which the alleged violation occurs, and (iii) to any alleged violator of the standard, limitation, or order, or
"(B) if the Administrator or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard, limitation, or order, but in any such action in a court of the United States any citizen may intervene as a matter of right.
"(2) under subsection (a)(2) of this section prior to sixty days after the plaintiff has given notice of such action to the Administrator,
except that such action may be brought immediately after such notification in the case of an action under this section respecting a violation of sections 1316 and 1317(a) of this title. Notice under this subsection shall be given in such manner as the Administrator shall prescribe by regulation."
The Administrator may intervene in any citizen suit. § 505(c)(2), 33 U.S.C. § 1365(c)(2).
See n. 27, infra (legislative history emphasizing the limited forms of relief available under the Act).
In this opinion we refer to sections of the original FWPCA, added in the 1972 Amendments, with parallel citations to the United States Code.
10
In so holding the court rejected an argument that the notice requirement is inapplicable because of the "saving clause" in § 505(e), which states:
"Nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any effluent standard or limitation or to seek any other relief (including relief against the Administrator or a State agency)." 33 U.S.C. § 1365(e).
11
The citizen-suit provision in the MPRSA provides in part:
"(g)(1) Except as provided in paragraph (2) of this subsection any person may commence a civil suit on his own behalf to enjoin any person, including the United States and any other governmental instrumentality or agency (to the extent permitted by the eleventh amendment to the Constitution), who is alleged to be in violation of any prohibition, limitation, criterion, or permit established or issued by or under this subchapter. The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce such prohibition, limitation, criterion, or permit, as the case may be.
"(2) No action may be commenced—
"(A) prior to sixty days after notice of the violation has been given to the Administrator or to the Secretary, and to any alleged violator of the prohibition, limitation, criterion, or permit; or
"(B) if the Attorney General has commenced and is diligently prosecuting a civil action in a court of the United States to require compliance with the prohibition, limitation, criterion, or permit; or
"(C) if the Administrator has commenced action to impose a penalty pursuant to subsection (a) of this section, or if the Administrator, or the Secretary, has initiated permit revocation or suspension proceedings under subsection (f) of this section; or
"(D) if the United States has commenced and is diligently prosecuting a criminal action in a court of the United States or a State to redress a violation of this subchapter." 33 U.S.C. §§ 1415(g)(1), (2).
The United States may intervene in any citizen suit brought under the Act. 33 U.S.C. § 1415(g)(3)(B).
Like the FWPCA, the MPRSA contains a "saving clause," which states:
"The injunctive relief provided by this subsection shall not restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any standard or limitation or to seek any other relief (including relief against the Administrator, the Secretary, or a State agency)." § 1415(g)(5).
12
See 28 U.S.C. §§ 1346(b), 2671 et seq.; N.Y.Gen.Mun.Law §§ 50-e, 50-i (McKinney 1977 and Supp.1980-1981); N.J.Stat.Ann. § 59:1-1 et seq. (West Supp.1981-1982). The District Court noted that respondents had given timely notice to one defendant—New York City.
The petitions for certiorari in this Court raised questions concerning the applicability of State Tort Claims acts and the Eleventh Amendment to tort suits in federal court. These questions are not, however, within the scope of the questions on which review was granted.
13
Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979); Touche Ross & Co. v. Redington, 442 U.S. 560, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979); Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979); Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975).
14
After holding that there is an implied right of action under the FWPCA, the court stated:
"Having so held, we reject the federal government defendants' sovereign immunity argument. The 1976 amendments to section 1331 of title 28 make clear that sovereign immunity has been waived in all suits by plaintiffs seeking injunctive relief against federal agencies or officers. Whether damages can be recovered from the federal government is a separate question to which the Federal Tort Claims Act speaks." 616 F.2d, at 1231 (footnote omitted).
This passage suggests that, as a general matter, the court had concluded that the statutory rights of action it was recognizing included damages relief. An additional indication is the fact that, by the time of the Court of Appeals decision, any relief other than damages, could not have been too important to respondents. The algal bloom about which respondents complain died in 1976. The Court of Appeals decision was not handed down until 1980. Under the MPRSA, 33 U.S.C. § 1412a(a) (1976 ed., Supp.III), the EPA is required to end all ocean dumping of sewage sludge by December 31, 1981.
15
The court also held that respondents had offered allegations sufficient to make out a claim of maritime tort, cognizable under admiralty jurisdiction. 616 F.2d, at 1236. It did not decide whether the Federal Tort Claims Act, with its various procedural requirements, 28 U.S.C. §§ 1346(b), 2671 et seq., applies to any of respondents' federal-law claims against federal defendants, 616 F.2d, at 1237, although it did hold that the Act precluded a "money damage recovery against federal agencies based on state law," id., at 1236.
16
See n. 3, supra. Petitioners in Nos. 79-1711, 79-1754, and 80-12 also named in the remaining petitioners as respondents, based on cross-claims filed in the District Court.
17
We therefore need not discuss the question whether the federal common law of nuisance could ever be the basis of a suit for damages by a private party.
18
The Act applies to discharges of pollutants from any source into navigable waters, including the "territorial seas," 33 U.S.C. §§ 1362(7), (12), and applies as well to discharges from sources "other than a vessel or other floating craft", into the "contiguous zone" and the high seas, §§ 1362(9), (10), (12). See S.Rep.No.92-414, p. 75 (1971), U.S.Code Cong. & Admin.News 1971, p. 3668.
19
These permits are issued by the Administrator of the Environmental Protection Agency, 33 U.S.C. § 1412, except in the case of dredged materials, which may be dumped under a permit issued by the Secretary of the Army, § 1413.
20
The Court of Appeals did state that the saving clause in § 505(e) of the FWPCA "provides an independent remedy for injured parties unburdened by the notice requirements of section 505(b)." 616 F.2d, at 1227. But the court did not conclude that the saving clause is itself an express authorization of private damages suits. Instead, it held that the saving clause acted to preserve any existing right to enforce the Act, in addition to the explicit, citizen-suit remedy in § 505(b). The court went on to apply an implied-right-of-action analysis before concluding that a private suit for damages is among the pre-existing remedies preserved by the saving clause.
21
In recent years, the question has arisen with increased frequency. See Cannon v. University of Chicago, 441 U.S., at 741-742, 99 S.Ct., at 1980 (Powell, J., dissenting).
22
The Administrator is authorized to give the States an opportunity to take action before doing so himself. 33 U.S.C. § 1319(a)(1).
23
This review must be sought within 90 days. The review provisions of § 509 are open to "[a]ny person," S.Rep.No.92-414, p. 85 (1971), and thus provide an additional procedure to "private attorneys general" seeking to enforce the Act, supplementing the citizen suits authorized in § 505. See W. Rodgers, Environmental Law 87-88 (1977).
24
The MPRSA provides for assessment of civil penalties by the Administrator, 33 U.S.C. § 1415(a), criminal penalties, § 1415(b), suits for injunctive relief by the Attorney General, § 1415(d), and permit suspensions or revocations, § 1415(f).
25
Under the FWPCA, civil penalties, payable to the Government, also may be ordered by the court. § 505(a), 33 U.S.C. § 1365(a).
26
In fact the Senate Report on the FWPCA Amendments of 1972 stated with respect to the saving clause:
"It should be noted, however, that the section would specifically preserve any rights or remedies under any other law. Thus, if damages could be shown, other remedies would remain available. Compliance with requirements under this Act would not be a defense to a common law action for pollution damages." S.Rep.No.92-414, p. 81 (1971), U.S.Code Cong. & Admin.News 1972, p. 3746 (emphasis added).
See also S.Rep.No.92-451, pp. 23-24 (1971), U.S. Code Cong. & Admin. News 1972, p. 4234 (Report on the MPRSA) (the citizen-suit provision does not restrict or supersede "any other right to legal action which is afforded the potential litigant in any other statute or the common law").
It might be argued that the phrase "any effluent standard or limitation" in § 505(e) necessarily is a reference to the terms of the FWPCA. We, however, are unpersuaded that Congress necessarily intended this meaning. The phrase, also could refer to state statutory limitations, or to "effluent limitations" imposed as a result of court decrees under the common law of nuisance.
27
The Senate Reports on both Acts placed particular emphasis on the limited nature of the citizen suits being authorized. S.Rep.No.92-451,
at 23; S.Rep.No.92-414, at 81. In addition, the citizen-suit provision of the FWPCA was expressly modeled on the parallel provision of the Clean Air Act, 42 U.S.C. § 7604 (1976 ed., Supp.III). See S.Rep.No.92-414, at 79. And the legislative history of the latter Act contains explicit indications that private enforcement suits were intended to be limited to the injunctive relief expressly provided for. Senator Hart, for example, stated:
"It has been argued, however, that conferring additional rights on the citizen may burden the courts unduly. I would argue that the citizen suit provision of S. 4358 has been carefully drafted to prevent this consequence from arising. First of all, it should be noted that the bill makes no provision for damages to the individual. It therefore provides no incentives to suit other than to protect the health and welfare of those suing and others similarly situated. It will be the rare, rather than the ordinary, person, I suspect, who, with no hope of financial gain and the very real prospect of financial loss, will initiate court action under this bill." 116 Cong.Rec. 33104 (1970).
Similarly, during the debates on the Clean Air Act, Senator Muskie, in response to concerns expressed by other Senators, contrasted the citizen-suit provision with the terms of S. 3201, a consumer protection bill that would have authorized private suits for damages:
"Senate bill 3201 provides damages and a remedy for recovery of fines and restitution, and other monetary damages. The pending bill is limited to seek [sic] abatement of violation of standards established administratively under the act, and expressly excludes damage actions." Id., at 33102.
He placed in the Record a staff memorandum stating that the availability of damages "would encourage frivolous or harassing suits against industries and government agencies." Id., at 33103. See also City of Highland Park v. Train, 519 F.2d 681, 690-691 (CA7 1975), cert. denied, 424 U.S. 927, 96 S.Ct. 1141, 47 L.Ed.2d 337 (1976).
28
See generally City of Evansville v. Kentucky Liquid Recycling, Inc., 604 F.2d 1008 (CA7 1979), cert. denied, 444 U.S. 1025, 100 S.Ct. 689, 62 L.Ed.2d 659 (1980).
29
These petitioners appear to fall within the category of municipal governmental entities suable as "persons" under our decision in Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
30
See also Meyerson v. Arizona, 507 F.Supp. 859, 864 (Ariz. 1981) ("[T]he remedial provision of § 1983 cannot be used to circumvent the remedial provisions of the Revenue Sharing Act").
31
Justice STEVENS in dissent finds contrary indications of congressional intent in the saving clauses—§ 505(e) of the FWPCA, 33 U.S.C. § 1365(e), and § 105(g)(5) of the MPRSA, 33 U.S.C. § 1415(g)(5). The language of these clauses, see nn. 10, 11, supra, does not, however, support the view that Congress expressly preserved § 1983 remedies for violations of these statutes. As noted, supra, at 15-16, there is little reason to believe that Congress intended to do this when it made reference in § 505(e) to "any right which any person . . . may have under any statute or common law or to seek . . . any other relief." The legislative history makes clear Congress' intent to allow further enforcement of antipollution standards arising under other statutes or state common law. See n. 26, supra. A suit for damages asserting a substantive violation of the FWPCA or the MPRSA is far different, even if the remedy asserted is based on the separate right of action created in § 1983. We are convinced that the saving clauses do not refer at all to a suit for redress of a violation of these statutes—regardless of the source of the right of action asserted.
Even if this were not the correct interpretation of the saving clauses, we recently held that the saving clause in the FWPCA relates only to the effect of the accompanying citizen-suit provision. Milwaukee v. Illinois, 451 U.S. 304, 329, 101 S.Ct. 1784, 1798, 68 L.Ed.2d 114 (1981) (the section "means only that the provision of [a citizen] suit does not revoke other remedies"). The parallel provision of the MPRSA is equally limited. 33 U.S.C. § 1415(g)(5) ("The injunctive relief provided by this subsection shall not restrict any right which any person . . . may have under any statute or common law") (emphasis added). We therefore, are not persuaded that the saving clauses limit the effect of the overall remedial schemes provided expressly in the Acts. In sum, we think it clear that those express remedies preclude suits for damages under § 1983, and that the saving clauses do not require a contrary conclusion.
In so holding, we also note that, contrary to Justice STEVENS' argument, post, at 27-28, n. 11, we do not suggest that the burden is on a plaintiff to demonstrate congressional intent to preserve § 1983 remedies.
32
Indeed, as noted in n. 14, supra, the ocean dumping of sewage sludge must end altogether by December 31, 1981. To the extent that Congress allowed some continued dumping of sludge prior to that date, this represents a considered judgment that it made sense to allow entities like petitioners to adjust to the coming change.
1
Indeed, in recent Terms a significant portion of our docket has been occupied by cases presenting this question with respect to a variety of federal statutes. See, e. g., California v. Sierra Club, 451 U.S. 287, 101 S.Ct. 1775, 68 L.Ed.2d 101; Universities Research Assn. v. Coutu, 450 U.S. 754, 101 S.Ct. 1451, 67 L.Ed.2d 662; Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 100 S.Ct. 242, 62 L.Ed.2d 146; Touche Ross & Co. v. Redington, 442 U.S. 560, 99 S.Ct. 2479, 61 L.Ed.2d 82; Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560; Cf. Texas Industries Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 101 S.Ct. 2061, 68 L.Ed.2d 500; Northwest Airlines, Inc. v. Transport Workers, 451 U.S. 77, 101 S.Ct. 1571, 67 L.Ed.2d 750.
2
In the unanimous decision in Texas & Pacific R. Co. v. Rigsby, this presumption was plainly stated:
"A disregard of the command of the statute is a wrongful act, and where it results in damage to one of the class for whose especial benefit the statute was enacted, the right to recover the damages from the party in default is implied, according to a doctrine of the common law. . . . This is but an application of the maxim, Ubi jus ibi remedium." 241 U.S., at 39-40, 36 S.Ct., at 484.
As the Rigsby Court noted, the presumption was firmly established at common law, see California v. Sierra Club, supra, 451 U.S., at 299-300, 101 S.Ct., at 1782 (STEVENS, J., concurring), and it had been recognized on numerous prior occasions by this Court. See, e. g., Marbury v. Madison, 1 Cranch 137, 163, 2 L.Ed. 60 (" '[I]t is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit, or action at law, whenever that right is invaded' "); Kendall v. United States, 12 Pet. 524, 623, 9 L.Ed. 1181 ("[T]he power to enforce the performance of the act must rest somewhere, or it will present a case which has often been said to involve a monstrous absurdity in a well organized government, that there should be no remedy, although a clear and undeniable right should be shown to exist"); Pollard v. Bailey, 20 Wall. 520, 527, 22 L.Ed. 376 ("A general liability created by statute without a remedy may be enforced by an appropriate common-law action"); Hayes v. Michigan Central R. Co., 111 U.S. 228, 240, 4 S.Ct. 369, 374, 28 L.Ed. 410 ("[E]ach person specially injured by the breach of the obligation is entitled to his individual compensation, and to an action for its recovery"); De Lima v. Bidwell, 182 U.S. 1, 176-177, 21 S.Ct. 743, 745, 45 L.Ed. 1041 ("If there be an admitted wrong, the courts will look far to supply an adequate remedy").
3
See Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 402, 91 S.Ct. 1999, 2008, 29 L.Ed.2d 619 (concurring in judgment) ("[I]n suits for damages based on violations of federal statutes lacking any express authorization of a damage remedy, this Court has authorized such relief where, in its view, damages are necessary to effectuate the congressional policy underpinning the substantive provisions of the statute").
4
See J. I. Case Co. v. Borak, 377 U.S. 426, 433, 84 S.Ct. 1555, 1560, 12 L.Ed.2d 423 ("[I]t is the duty of the courts to be alert to provide such remedies as are necessary to make effective the congressional purpose").
5
See Montana-Dakota Utilities Co. v. Northwestern Public Service Co., 341 U.S. 246, 261, 71 S.Ct. 692, 700, 95 L.Ed. 912 (dissenting opinion) ("If civil liability is appropriate to effectuate the purposes of a statute, courts are not denied this traditional remedy because is it not specifically authorized").
6
See Kardon v. National Gypsum Co., 69 F.Supp. 512, 513-514 (ED Pa. 1946) ("The disregard of the command of a statute is a wrongful act and a tort. . . . [T]he right to recover damages arising by reason of violation of a statute . . . is so fundamental and so deeply ingrained in the law that where it is not expressly denied the intention to withhold it should appear very clearly and plainly").
7
Although the federal courts do not possess the full common-law powers of their state counterparts, see, e. g., Northwest Airlines, Inc., supra, 451 U.S., at 95, 101 S.Ct., at 1582, the cases cited in n. 2, supra, nonetheless indicate that the fashioning of remedies for wrongs has traditionally been a part of the business of the federal courts.
8
The unanimous opinion in Cort v. Ash adopted the single-factor test of Rigsby, see n. 2, supra, and combined it with three additional inquiries:
"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,'—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? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? And finally, is the cause of the 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 of federal law?" 422 U.S., at 78, 95 S.Ct., at 2088 (citations omitted) (emphasis in original).
9
See Cannon, supra, 441 U.S., at 694, 99 S.Ct., at 1956; Northwest Airlines, Inc., supra, 451 U.S., at 94, 101 S.Ct., at 1582.
10
Section 1983 provides:
"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, or the District of Columbia, 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
This is more than merely a semantic dispute. As the Court formulates the inquiry, the burden is placed on the § 1983 plaintiff to show an explicit or implicit congressional intention that violations of the substantive statute at issue be redressed in private § 1983 actions. The correct formulation, however, places the burden on the defendant to show that Congress intended to foreclose access to the § 1983 remedy as a means of enforcing the substantive statute. Because the § 1983 plaintiff is invoking an express private remedy that is, on its face, applicable any time a violation of a federal statute is alleged, see Maine v. Thiboutot, 448 U.S. 1, 4, 100 S.Ct. 2502, 2504, 65 L.Ed.2d 555, the burden is properly placed on the defendant to show that Congress, in enacting the particular substantive statute at issue, intended an exception to the general rule of § 1983. A defendant may carry this burden by identifying express statutory language or legislative history revealing Congress' intent to foreclose the § 1983 remedy, or by establishing that Congress intended that the remedies provided in the substantive statute itself be exclusive. See Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 28, 101 S.Ct. 1531, 1545, 67 L.Ed.2d 694.
12
In a remarkable departure from the "plain language" rule of statutory construction that has dominated our recent statutory decisions, the Court disregards the plain language not only of the two saving provisions, but also of § 1983. Just last Term, we emphasized the plain language of that statute:
"The question before us is whether the phrase 'and laws,' as used in § 1983, means what it says, or whether it should be limited to some subset of laws. Given that Congress attached no modifiers to the phrase, the plain language of the statute undoubtedly embraces respondents' claim that petitioners violated the Social Security Act." Maine v. Thiboutot, 448 U.S., at 4, 100 S.Ct., at 2504.
13
Carlson v. Green, 446 U.S. 14, 23, 100 S.Ct. 1468, 1474, 64 L.Ed.2d 15.
14
I recognize, of course, that under the pre-emption rationale of Milwaukee v. Illinois, a defendant's compliance or noncompliance with the requirements of the Clean Water Act or the MPRSA is technically irrelevant. However, I point out that the petitioners in these cases allegedly failed to comply with the requirements of the statutes merely to emphasize the anomalous nature of the Court's holdings today and in Milwaukee, particularly in light of the statutory language and legislative history discussed in the text.
15
In his brief for the federal parties, the Solicitor General notes:
"The plain language of the savings clause of the Clean Water Act, 33 U.S.C. 1365(e), indicates Congress' intent to preserve all common law remedies, and the legislative history makes clear that Congress understood that the federal common law would be preserved as well." Brief for Federal Petitioners 37.
In support of this conclusion, the Solicitor General cites a statement in the legislative history by Congressman Dingell, one of the cosponsors of the Clean Water Act in the House, specifically referring to nuisance litigation under the federal common law. See 118 Cong. Rec. 33757 (1972), I Legislative History of the Water Pollution Control Act Amendments of 1972 (Committee Print compiled for the Senate Committee on Public Works by the Library of Congress), Ser. 93-1, p. 252 (1973). In his statement, Congressman Dingell cited H.R.Rep.No.92-1401, pp. 31-33 (1972), which quoted with approval from Illinois v. Milwaukee, 406 U.S. 91, 92 S.Ct. 1385, 31 L.Ed.2d 712 and discussed two federal common-law nuisance actions then being pursued by the Department of Justice against alleged polluters. See also Milwaukee v. Illinois, 451 U.S., at 343-344, 101 S.Ct., at 1806 (BLACKMUN, J., dissenting).
16
Both statutes contain general statements of policy that indicate that they were enacted to serve a broad range of interests. Section 101(a) of the Clean Water Act, as set forth in 33 U.S.C. § 1251(a), provides, in part:
"The objective of this chapter is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters."
Section 2(b) of the MPRSA provides:
"The Congress declares that it is the policy of the United States to regulate the dumping of all types of materials into ocean waters and to prevent or strictly limit the dumping into ocean waters of any material which would adversely affect human health, welfare, or amenities, or the marine environment, ecological systems, or economic potentialities." 33 U.S.C. § 1401(b).
| 78
|
453 U.S. 114
101 S.Ct. 2676
69 L.Ed.2d 517
UNITED STATES POSTAL SERVICE, Appellant,v.COUNCIL OF GREENBURGH CIVIC ASSOCIATIONS et al.
No. 80-608.
April 21, 1981.
Decided June 25, 1981.
Syllabus
Title 18 U.S.C. § 1725 prohibits the deposit of unstamped "mailable matter" in a letterbox approved by the United States Postal Service, and violations are subject to a fine. The local Postmaster notified appellee civic association that its practice of delivering messages to residents by placing unstamped notices in the letterboxes of private homes violated § 1725, and advised it that if it and other members of appellee council of civic associations continued such practice it could result in a fine. Appellees then brought suit in Federal District Court against the Postal Service for declaratory and injunctive relief, contending that the enforcement of § 1725 would inhibit their communications with local residents and would thereby deny them the freedom of speech and press secured by the First Amendment. The District Court ultimately declared § 1725 unconstitutional as applied to appellees and the council's member associations and enjoined the Postal Service from enforcing it as to them.
Held : Section 1725 does not unconstitutionally abridge appellees' First Amendment rights, inasmuch as neither the enactment nor the enforcement of § 1725 is geared in any way to the content of the message sought to be placed in the letterbox. Pp. 120-134.
(a) When a letterbox is designated an "authorized depository" of the mail by the Postal Service, it becomes an essential part of the nationwide system for the delivery and receipt of mail. In effect, the postal customer, although he pays for the physical components of the "authorized depository," agrees to abide by the Postal Service's regulations in exchange for the Postal Service agreeing to deliver and pick up his mail. A letterbox, once designated an "authorized depository," does not at the same time transform itself into a "public forum" of some limited nature to which the First Amendment guarantees access to all comers. Just because it may be somewhat more efficient for appellees to place their messages in letterboxes does not mean that there is a First Amendment right to do so. The First Amendment does not guarantee access to property simply because it is owned or controlled by the Government. Pp. 126-131.
(b) Congress, in exercising its constitutional authority to develop and operate a national postal system, may properly legislate with the generality of cases in mind, and should not be put to the test of defending in one township after another the constitutionality of a statute under the traditional "time, place, and manner" analysis. If Congress and the Postal Service are to operate as efficiently as possible an extensive system for the delivery of mail, they must adopt regulations of a general character having uniform applicability throughout the Nation. In this case, Congress was legislating to promote what it considered to be the efficiency of the Postal Service, and was not laying down a generalized prohibition against the distribution of leaflets or the discussion of issues in traditional public forums. Pp. 132-133.
(c) While Congress may not by its own ipse dixit destroy the "public forum" status of streets and parks, a letter box may not properly be analogized to streets and parks. Pp. 133-134.
D.C., 490 F.Supp. 157, reversed.
Edwin S. Kneedler, Washington, D. C., for appellant.
Jon H. Hammer, Hartsdale, N. Y., for appellees.
Justice REHNQUIST delivered the opinion of the Court.
1
We noted probable jurisdiction to decide whether the United States District Court for the Southern District of New York correctly determined that 18 U.S.C. § 1725, which prohibits the deposit of unstamped "mailable matter" in a letterbox approved by the United States Postal Service, unconstitutionally abridges the First Amendment rights of certain civic associations in Westchester County, N. Y., 449 U.S. 1076, 101 S.Ct. 853, 66 L.Ed.2d 798 (1981). Jurisdiction of this Court rests on 28 U.S.C. § 1252.
2
* Appellee Council of Greenburgh Civic Associations (Council) is an umbrella organization for a number of civic groups in Westchester County, N. Y. Appellee Saw Mill Valley Civic Association is one of the Council's member groups. In June 1976, the Postmaster in White Plains, N. Y., notified the Chairman of the Saw Mill Valley Civic Association that the association's practice of delivering messages to local residents by placing unstamped notices and pamphlets in the letterboxes of private homes was in violation of 18 U.S.C. § 1725, which provides:
3
"Whoever knowingly and willfully deposits any mailable matter such as statements of accounts, circulars, sale bills, or other like matter, on which no postage has been paid, in any letter box established, approved, or accepted by the Postal Service for the receipt or delivery of mail matter on any mail route with intent to avoid payment of lawful postage thereon, shall for each such offense be fined not more than $300."
4
Saw Mill Valley Civic Association and other Council members were advised that if they continued their practice of placing unstamped notices in the letterboxes of private homes it could result in a fine not to exceed $300.
5
In February 1977, appellees filed this suit in the District Court for declaratory and injunctive relief from the Postal Service's threatened enforcement of § 1725. Appellees contended that the enforcement of § 1725 would inhibit their communication with residents of the town of Greenburgh and would thereby deny them the freedom of speech and freedom of the press secured by the First Amendment.
6
The District Court initially dismissed the complaint for failure to state a claim on which relief could be granted. 448 F.Supp. 159 (SDNY 1978). On appeal, however, the Court of Appeals for the Second Circuit reversed and remanded the case to the District Court to give the parties "an opportunity to submit proof as to the extent of the handicap to communication caused by enforcement of the statute in the area involved, on the one hand, and the need for the restriction for protection of the mails, on the other." 586 F.2d 935, 936 (1978). In light of this language, it was not unreasonable for the District Court to conclude that it had been instructed to "try" the statute, much as more traditional issues of fact are tried by a court, and that is what the District Court proceeded to do.
7
In the proceedings on remand, the Postal Service offered three general justifications for § 1725: (1) that § 1725 protects mail revenues; (2) that it facilitates the efficient and secure delivery of the mails; and (3) that it promotes the privacy of mail patrons. More specifically, the Postal Service argued that elimination of § 1725 could cause the overcrowding of mailboxes due to the deposit of civic association notices. Such overcrowding would in turn constitute an impediment to the delivery of the mails. Testimony was offered that § 1725 aided the investigation of mail theft by restricting access to letterboxes, thereby enabling postal investigators to assume that anyone other than a postal carrier or a householder who opens a mailbox may be engaged in the violation of the law. On this point, a postal inspector testified that 10% of the arrests made under the external mail theft statute, 18 U.S.C. § 1708, resulted from surveillance-type operations which benefit from enforcement of § 1725. Testimony was also introduced that § 1725 has been particularly helpful in the investigation of thefts of government benefit checks from letterboxes.1
8
The Postal Service introduced testimony that it would incur additional expense if § 1725 were either eliminated or held to be inapplicable to civic association materials. If delivery in mailboxes were expanded to permit civic association circulars—but not other types of nonmailable matter such as commercial materials mail carriers would be obliged to remove and examine individual unstamped items found in letterboxes to determine if their deposit there was lawful. Carriers would also be confronted with a larger amount of unstamped mailable matter which they would be obliged to separate from outgoing mail. The extra time resulting from these additional activities, when computed on a nationwide basis, would add substantially to the daily cost of mail delivery.
9
The final justification offered by the Postal Service for § 1725 was that the statute provided significant protection for the privacy interests of postal customers. Section 1725 provides postal customers the means to send and receive mails without fear of their correspondence becoming known to members of the community.
10
The Postal Service also argued at trial that the enforcement of § 1725 left appellees with ample alternative means of delivering their message. The appellees can deliver their messages either by paying postage, by hanging their notices on doorknobs, by placing their notices under doors or under a doormat, by using newspaper or nonpostal boxes affixed to houses or mailbox posts, by telephoning their constituents, by engaging in person-to-person delivery in public areas, by tacking or taping their notices on a door post or letterbox post, or by placing advertisements in local newspapers. A survey was introduced comparing the effectiveness of certain of these alternatives which arguably demonstrated that between 70-75% of the materials placed under doors or doormats or hung from doorknobs were found by the homeowner whereas approximately 82% of the items placed in letterboxes were found. This incidental difference, it was argued, cannot be of constitutional significance.
11
The District Court found the above arguments of the Postal Service insufficient to sustain the constitutionality of § 1725 at least as applied to these appellees. 490 F.Supp. 157 (1980). Relying on the earlier opinion of the Court of Appeals, the District Court noted that the legal standard it was to apply would give the appellees relief if the curtailment of their interest in free expression resulting from enforcement of § 1725 substantially outweighed the Government's interest in the effective delivery and protection of the mails. The District Court concluded that the appellees had satisfied this standard.
12
The District Court based its decision on several findings. The court initially concluded that because civic associations generally have small cash reserves and cannot afford the applicable postage rates, mailing of the appellees' message would be financially burdensome. Similarly, because of the relatively slow pace of the mail, use of the mails at certain times would impede the appellees' ability to communicate quickly with their constituents. Given the widespread awareness of the high cost and limited celerity of the mails, the court probably could have taken judicial notice of both of these findings.
13
The court also found that none of the alternative means of delivery suggested by the Postal Service were "nearly as effective as placing civic association flyers in approved mailboxes; so that restriction on the [appellees'] delivery methods to such alternatives also constitute a serious burden on [appellees'] ability to communicate with their constituents." 490 F.Supp., at 160.2 Accordingly, the District Court declared § 1725 unconstitutional as applied to appellees and the Council's member associations and enjoined the Postal Service from enforcing it as to them.
II
14
The present case is a good example of Justice Holmes' aphorism that "a page of history is worth a volume of logic." New York Trust Co. v. Eisner, 256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963 (1921). For only by review of the history of the postal system and its present statutory and regulatory scheme can the constitutional challenge to § 1725 be placed in its proper context.
15
By the early 18th century, the posts were made a sovereign function in almost all nations because they were considered a sovereign necessity. Government without communication is impossible, and until the invention of the telephone and telegraph, the mails were the principal means of communication. Kappel Commission, Toward Postal Excellence, Report of the President's Commission on Postal Organization 47 (Comm.Print 1968). Little progress was made in developing a postal system in Colonial America until the appointment of Benjamin Franklin, formerly Postmaster at Philadelphia, as Deputy Postmaster General for the American Colonies in 1753. In 1775, Franklin was named the first Postmaster General by the Continental Congress, and, because of the trend toward war, the Continental Congress undertook its first serious effort to establish a secure mail delivery organization in order to maintain communication between the States and to supply revenue for the Army. D. Adie, An Evaluation of Postal Service Wage Rates 2 (American Enterprise Institute, 1977).
16
Given the importance of the post to our early Nation, it is not surprising that when the United States Constitution was ratified in 1789, Art. I, § 8, provided Congress the power "To establish Post Offices and post Roads" and "To make all Laws which shall be necessary and proper" for executing this task. The Post Office played a vital yet largely unappreciated role in the development of our new Nation. Stagecoach trails which were improved by the Government to become post roads quickly became arteries of commerce. Mail contracts were of great assistance to the early development of new means of transportation such as canals, railroads, and eventually airlines. Kappel Commission, Toward Postal Excellence, supra, at 46. During this developing stage, the Post Office was to many citizens situated across the country the most visible symbol of national unity. Ibid.
17
The growth of postal service over the past 200 years has been remarkable. Annual revenues increased from less than $40 million in 1790 to close to $200 million in 1829 when the Postmaster General first became a member of the Cabinet. However, expenditures began exceeding revenues as early as the 1820's as the postal structure struggled to keep pace with the rapid growth of the country westward. Because of this expansion, delivery costs to the South and West raised average postal costs nationally. To prevent competition from private express services, Congress passed the Postal Act of 1845, which prohibited competition in letter mail and established what is today referred to as the "postal monopoly."
18
More recently, to deal with the problems of increasing deficits and shortcomings in the overall management and efficiency of the Post Office, Congress passed the Postal Reorganization Act of 1970. This Act transformed the Post Office Department into a Government-owned corporation called the United States Postal Service. The Postal Service today is among the largest employers in the world, with a work force nearing 700,000 processing 106.3 billion pieces of mail each year. Ann. Rep. of the Postmaster General 2, 11 (1980). The Postal Service is the Nation's largest user of floor space, and the Nation's largest nonmilitary purchaser of transport, operating more than 200,000 vehicles. Its rural carriers alone travel over 21 million miles each day and its city carriers walk or drive another million miles a day. D. Adie, An Evaluation of Postal Service Wage Rates, supra, at 1. Its operating budget in fiscal 1980 exceeded $17 billion. Ann. Rep. of the Postmaster General, supra, at 2.
19
Not surprisingly, Congress has established a detailed statutory and regulatory scheme to govern this country's vast postal system. See 39 U.S.C. § 401 et seq. and the Domestic Mail Manual (DMM), which has been incorporated by reference in the Code of Federal Regulations, 39 CFR pt. 3 (1980). Under 39 U.S.C. § 403(a), the Postal Service is directed to "plan, develop, promote, and provide adequate and efficient postal services at fair and reasonable rates and fees." Section 403(b)(1) similarly directs the Postal Service "to maintain an efficient system of collection, sorting, and delivery of the mail nationwide," and under 39 U.S.C. § 401 the Postal Service is broadly empowered to adopt rules and regulations designed to accomplish the above directives.
20
Acting under this authority, the Postal Service has provided by regulation that both urban and rural postal customers must provide appropriate mail receptacles meeting detailed specifications concerning size, shape, and dimensions. DMM 155.41, 155.43, 156.311, 156.51, and 156.54. By regulation, the Postal Service has also provided that "[e]very letter box or other receptacle intended or used for the receipt or delivery of mail on any city delivery route, rural delivery route, highway contract route, or other mail route is designated an authorized depository for mail within the meaning of 18 U.S.C. [§] 1725." DMM 151.1. A letterbox provided by a postal customer which meets the Postal Service's specifications not only becomes part of the Postal Service's nationwide system for the receipt and delivery of mail, but is also afforded the protection of the federal statutes prohibiting the damaging or destruction of mail deposited therein. See 18 U.S.C. §§ 1702, 1705, and 1708.
21
It is not without irony that this elaborate system of regulation, coupled with the historic dependence of the Nation on the Postal Service, has been the causal factor which led to this litigation. For it is because of the very fact that virtually every householder wishes to have a mailing address and a receptacle in which mail sent to that address will be deposited by the Postal Service that the letterbox or other mail receptacle is attractive to those who wish to convey messages within a locality but do not wish to purchase the stamp or pay such other fee as would permit them to be transmitted by the Postal Service. To the extent that the "alternative means" eschewed by the appellees and found to be inadequate alternatives by the District Court are in fact so, it is in no small part attributable to the fact that the typical mail patron first looks for written communications from the "outside world" not under his doormat, or inside the screen of his front door, but in his letterbox. Notwithstanding the increasing frequency of complaints about the rising cost of using the Postal Service, and the uncertainty of the time which passes between mailing and delivery, written communication making use of the Postal Service is so much a fact of our daily lives that the mail patron watching for the mailtruck, or the jobholder returning from work looking in his letterbox before he enters his house, are commonplaces of our society. Indeed, according to the appellees the receptacles for mailable matter are so superior to alternative efforts to communicate printed matter that all other alternatives for deposit of such matter are inadequate substitutes for postal letterboxes.
22
Postal Service regulations, however, provide that letterboxes and other receptacles designated for the delivery of mail "shall be used exclusively for matter which bears postage." DMM 151.2.3 Section 1725 merely reinforces this regulation by prohibiting, under pain of criminal sanctions, the deposit into a letterbox of any mailable matter on which postage has not been paid. The specific prohibition contained in § 1725 is also repeated in the Postal Service regulations at DMM 146.21.
23
Section 1725 was enacted in 1934 "to curb the practice of depositing statements of accounts, circulars, sale bills, etc., in letter boxes established and approved by the Postmaster General for the receipt or delivery of mail matter without payment of postage thereon by making this a criminal offense." H.R.Rep.No. 709, 73d Cong., 2d Sess., 1 (1934). Both the Senate and House Committees on Post Offices and Post Roads explained the principal motivation for § 1725 as follows:
24
"Business concerns, particularly utility companies, have within the last few years adopted the practice of having their circulars, statements of account, etc., delivered by private messenger, and have used as receptacles the letter boxes erected for the purpose of holding mail matter and approved by the Post Office Department for such purpose. This practice is depriving the Post Office Department of considerable revenue on matter which would otherwise go through the mails, and at the same time is resulting in the stuffing of letter boxes with extraneous matter." Ibid.; S.Rep.No. 742, 73d Cong., 2d Sess., 1 (1934).
25
Nothing in any of the legislation or regulations recited above requires any person to become a postal customer. Anyone is free to live in any part of the country without having letters or packages delivered or received by the Postal Service by simply failing to provide the receptacle for those letters and packages which the statutes and regulations require. Indeed, the provision for "General Delivery" in most post offices enables a person to take advantage of the facilities of the Postal Service without ever having provided a receptacle at or near his premises conforming to the regulations of the Postal Service. What the legislation and regulations do require is that those persons who do wish to receive and deposit their mail at their home or business do so under the direction and control of the Postal Service.
III
26
As early as the last century, this Court recognized the broad power of Congress to act in matters concerning the posts:
27
"The power vested in Congress 'to establish post-offices and post-roads' has been practically construed, since the foundation of the government, to authorize not merely the designation of the routes over which the mail shall be carried, and the offices where letters and other documents shall be received to be distributed or forwarded, but the carriage of the mail, and all measures necessary to secure its safe and speedy transit, and the prompt delivery of its contents. The validity of legislation describing what should be carried, and its weight and form, and the charges to which it should be subjected, has never been questioned. . . . The power possessed by Congress embraces the regulation of the entire Postal System of the country. The right to designate what shall be carried necessarily involves the right to determine what shall be excluded." Ex parte Jackson, 96 U.S. 727, 732, 24 L.Ed. 877 (1878).
28
However broad the postal power conferred by Art. I may be, it may not of course be exercised by Congress in a manner that abridges the freedom of speech or of the press protected by the First Amendment to the Constitution. In this case we are confronted with the appellees' assertion that the First Amendment guarantees them the right to deposit, without payment of postage, their notices, circulars, and flyers in letterboxes which have been accepted as authorized depositories of mail by the Postal Service.4
29
In addressing appellees' claim, we note that we are not here confronted with a regulation which in any way prohibits individuals from going door-to-door to distribute their message or which vests unbridled discretion in a governmental official to decide whether or not to permit the distribution to occur. We are likewise not confronted with a regulation which in any way restricts the appellees' right to use the mails. The appellees may mail their civic notices in the ordinary fashion, and the Postal Service will treat such notices identically with all other mail without regard to content. There is no claim that the Postal Service treats civic notices, because of their content, any differently from the way it treats any of the other mail it processes. Admittedly, if appellees do choose to mail their notices, they will be required to pay postage in a manner identical to other Postal Service patrons, but appellees do not challenge the imposition of a fee for the services provided by the Postal Service.5
30
What is at issue in this case is solely the constitutionality of an Act of Congress which makes it unlawful for persons to use, without payment of a fee, a letterbox which has been designated an "authorized depository" of the mail by the Postal Service. As has been previously explained, when a letterbox is so designated, it becomes an essential part of the Postal Service's nationwide system for the delivery and receipt of mail. In effect, the postal customer, although he pays for the physical components of the "authorized depository," agrees to abide by the Postal Service's regulations in exchange for the Postal Service agreeing to deliver and pick up his mail.
31
Appellees' claim is undermined by the fact that a letterbox, once designated an "authorized depository," does not at the same time undergo a transformation into a "public forum" of some limited nature to which the First Amendment guarantees access to all comers. There is neither historical nor constitutional support for the characterization of a letterbox as a public forum. Letterboxes are an essential part of the nationwide system for the delivery and receipt of mail, and since 1934 access to them has been unlawful except under the terms and conditions specified by Congress and the Postal Service. As such, it is difficult to accept appellees' assertion that because it may be somewhat more efficient to place their messages in letterboxes there is a First Amendment right to do so. The underlying rationale of appellees' argument would seem to foreclose Congress or the Postal Service from requiring in the future that all letterboxes contain locks with keys being available only to the homeowner and the mail carrier. Such letterboxes are presently found in many apartment buildings, and we do not think their presence offends the First Amendment to the United States Constitution. Letterboxes which lock, however, have the same effect on civic associations who wish access to them as does the enforcement of § 1725. Such letterboxes also accomplish the same purpose—that is, they protect mail revenues while at the same time facilitating the secure and efficient delivery of the mails. We do not think the First Amendment prohibits Congress from choosing to accomplish these purposes through legislation as opposed to lock and key.
32
Indeed, it is difficult to conceive of any reason why this Court should treat a letterbox differently for First Amendment access purposes than it has in the past treated the military base in Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976), the jail or prison in Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966), and Jones v. North Carolina Prisoners' Union, 433 U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977), or the advertising space made available in city rapid transit cars in Lehman v. City of Shaker Heights, 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770 (1974). In all these cases, this Court recognized that the First Amendment does not guarantee access to property simply because it is owned or controlled by the government. In Greer v. Spock, supra, the Court cited approvingly from its earlier opinion in Adderley v. Florida, supra, wherein it explained that " '[t]he 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.' " 424 U.S., at 836, 96 S.Ct., at 1216.6
33
This Court has not hesitated in the past to hold invalid laws which it concluded granted too much discretion to public officials as to who might and who might not solicit individual homeowners, or which too broadly inhibited the access of persons to traditional First Amendment forums such as the public streets and parks. See, e. g., Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980); Hague v. CIO, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939); Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939); Martin v. City of Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313 (1943); Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1938); and Police Department of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972). But it is a giant leap from the traditional "soapbox" to the letter-box designated as an authorized depository of the United States mails, and we do not believe the First Amendment requires us to make that leap.7
IV
34
It is thus unnecessary for us to examine § 1725 in the context of a "time, place, and manner" restriction on the use of the traditional "public forums" referred to above. This Court has long recognized the validity of reasonable time, place, and manner regulations on such a forum so long as the regulation is content-neutral, serves a significant governmental interest, and leaves open adequate alternative channels for communication. See, e. g., Consolidated Edison Co. v. Public Service Comm'n, 447 U.S. 530, 535-536, 100 S.Ct. 2326, 2332, 65 L.Ed.2d 319 (1980); Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 93, 97 S.Ct. 1614, 1618, 52 L.Ed.2d 155 (1977); Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771, 96 S.Ct. 1817, 1830, 48 L.Ed.2d 346 (1976); Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049 (1941). But since a letterbox is not traditionally such a "public forum," the elaborate analysis engaged in by the District Court was, we think, unnecessary. To be sure, if a governmental regulation is based on the content of the speech or the message, that action must be scrutinized more carefully to ensure that communication has not been prohibited " 'merely because public officials disapprove the speaker's view.' " Consolidated Edison Co. v. Public Service Comm'n, supra, at 536, 100 S.Ct., at 2332, quotingNiemotko v. Maryland, 340 U.S. 268, 282, 71 S.Ct. 325, 333, 95 L.Ed. 267 (1951) (Frankfurter, J., concurring in result). But in this case there simply is no question that § 1725 does not regulate speech on the basis of content. While the analytical line between a regulation of the "time, place, and manner" in which First Amendment rights may be exercised in a traditional public forum, and the question of whether a particular piece of personal or real property owned or controlled by the government is in fact a "public forum" may blur at the edges, we think the line is nonetheless a workable one. We likewise think that Congress may, in exercising its authority to develop and operate a national postal system, properly legislate with the generality of cases in mind, and should not be put to the test of defending in one township after another the constitutionality of a statute under the traditional "time, place, and manner" analysis. This Court has previously acknowledged that 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.' " Greer v. Spock, 424 U.S., at 836, 96 S.Ct., at 1216, quoting Adderley v. Florida, 385 U.S., at 48, 87 S.Ct., at 247. If Congress and the Postal Service are to operate as efficiently as possible a system for the delivery of mail which serves a Nation extending from the Atlantic Ocean to the Pacific Ocean, from the Canadian boundary on the north to the Mexican boundary on the south, it must obviously adopt regulations of general character having uniform applicability throughout the more than three million square miles which the United States embraces. In so doing, the Postal Service's authority to impose regulations cannot be made to depend on all of the variations of climate, population, density, and other factors that may vary significantly within a distance of less than 100 miles.
V
35
From the time of the issuance of the first postage stamp in this country at Brattleboro, Vt., in the fifth decade of the last century, through the days of the governmentally subsidized "Pony Express" immediately before the Civil War, and through the less admirable era of the Star Route Mail Frauds in the latter part of that century, Congress has actively exercised the authority conferred upon it by the Constitution "to establish Post Offices and Post Roads" and "to make all laws which shall be necessary and proper" for executing this task. While Congress, no more than a suburban township, may not by its own ipse dixit destroy the "public forum" status of streets and parks which have historically been public forums, we think that for the reasons stated a letterbox may not properly be analogized to streets and parks. It is enough for our purposes that neither the enactment nor the enforcement of § 1725 was geared in any way to the content of the message sought to be placed in the letterbox. The judgment of the District Court is accordingly
36
Reversed.
37
Justice BRENNAN, concurring in the judgment.
38
I concur in the judgment, but not in the Court's opinion. I believe the Court errs in not determining whether § 1725 is a reasonable time, place, and manner restriction on appellees' exercise of their First Amendment rights, as urged by the Government and in resting its judgment instead on the conclusion that a letterbox is not a public forum. In my view, this conclusion rests on an improper application of the Court's precedents and ignores the historic role of the mails as a national medium of communication.
39
* Section 1725 provides:
40
"Whoever knowingly and willfully deposits any mailable matter such as statements of accounts, circulars, sale bills, or other like matter, on which no postage has been paid, in any letter box established, approved, or accepted by the Postal Service for the receipt or delivery of mail matter on any mail route with intent to avoid payment of lawful postage thereon, shall for each such offense be fined not more than $300." 18 U.S.C. § 1725.
41
Unquestionably, § 1725 burdens in some measure the First Amendment rights of appellees who seek to "communicate ideas, positions on local issues, and civic information to their constituents," through delivery of circulars door-to-door. 490 F.Supp. 157, 162 (1980). See Martin v. City of Struthers, 319 U.S. 141, 146-147, 63 S.Ct. 862, 864, 87 L.Ed. 1313 (1943). The statute requires appellees either to pay postage to obtain access to the postal system, which they assert they are unable to do, or to deposit their materials in places other than the letterbox, which they contend is less effective than deposit in the letterbox.
42
Despite the burden on appellees' rights I conclude that the statute is constitutional because it is a reasonable time, place, and manner regulation. See Schad v. Mount Ephraim, 452 U.S. 61, 74-77, 101 S.Ct. 2176, 2186-2187, 68 L.Ed.2d 671 (1981); Consolidated Edison Co. v. Public Service Comm'n, 447 U.S. 530, 535-536, 100 S.Ct. 2326, 2332, 65 L.Ed.2d 319 (1980); Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 93, 97 S.Ct. 1614, 1618, 52 L.Ed.2d 155 (1977); Grayned v. City of Rockford, 408 U.S. 104, 115-116, 92 S.Ct. 2294, 2302, 33 L.Ed.2d 222 (1972). First § 1725 is content-neutral because it is not directed at the content of the message appellees seek to convey, but applies equally to all mailable matter. See Consolidated Edison Co. v. Public Service Comm'n, supra, at 536, 100 S.Ct., at 2332; Erznoznik v. City of Jacksonville, 422 U.S. 205, 209-211, 95 S.Ct. 2268, 2272, 45 L.Ed.2d 125 (1975); Police Department of Chicago v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 2289, 33 L.Ed.2d 212 (1972).
43
Second, the burden on expression advances a significant governmental interest—preventing loss of mail revenues. The District Court's finding that the "failure to enforce the statute as to [appellees] would [not] result in a substantial loss of revenue" may be true, 490 F.Supp. 157, 163 (emphasis added), but that conclusion overlooks the obvious cumulative effect that the District Court's ruling would have if applied across the country. Surely, the Government is correct when it argues that the Postal Service "is not required to make a case-by-case showing of a compelling need for the incremental revenue to be realized from charging postage to each organization or individual who desires to use the postal system to engage in expression protected by the First Amendment." Reply Brief for Appellant 8.
44
Third, there are "ample alternative channels for communication." Consolidated Edison Co. v. Public Service Comm'n, 447 U.S., at 535, 100 S.Ct., at 2332. Appellees may, for example, place their circulars under doors or attach them to doorknobs. Simply because recipients may find 82% of materials left in the letterbox, but only 70-75% of materials otherwise left at the residence, is not a sufficient reason to conclude that alternative means of delivery are not "ample." Ibid.; see ante, at 120, and n. 2.
II
45
The Court declines to analyze § 1725 as a time, place, and manner restriction. Instead, it concludes that a letterbox is not a public forum. Ante, at 128. Thus the Court states that
46
"it is difficult to conceive of any reason why this Court should treat a letterbox differently for First Amendment access purposes than it has in the past treated the military base in Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976), the jail or prison in Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966), and Jones v. North Carolina Prisoners' Union, 433 U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977), or the advertising space made available in city rapid transit cars in Lehman v. City of Shaker Heights, 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770 (1974)." Ante, at 129.
47
I believe that the Court's conclusion ignores the proper method of analysis in determining whether property owned or directly controlled by the Government is a public forum. Moreover, even if the Court were correct that a letterbox is not a public forum, the First Amendment would still require the Court to determine whether the burden on appellees' exercise of their First Amendment rights is supportable as a reasonable time, place, and manner restriction.
A.
48
For public forum analysis, "[t]he crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time." Grayned v. City of Rockford, supra, at 116, 92 S.Ct., at 2303. We have often quoted Justice Holmes' observation that the " 'United States may give up the Post Office when it sees fit, but while it carries it on the use of the mails is almost as much a part of free speech as the right to use our tongues . . . .' " Blount v. Rizzi, 400 U.S. 410, 416, 91 S.Ct. 423, 428, 27 L.Ed.2d 498 (1971), and Lamont v. Postmaster General, 381 U.S. 301, 305, 85 S.Ct. 1493, 1495, 14 L.Ed.2d 398 (1965), quoting United States ex rel. Milwaukee Social Democratic Pub. Co. v. Burleson, 255 U.S. 407, 437, 41 S.Ct. 352, 363, 65 L.Ed. 704 (1921) (Holmes, J., dissenting).1 Our cases have recognized generally that public properties are appropriate fora for exercise of First Amendment rights. See, e. g. Tinker v. Des Moines School District, 393 U.S. 503, 512, 89 S.Ct. 733, 739, 21 L.Ed.2d 731 (1969); Brown v. Louisiana, 383 U.S. 131, 139-140, 142 (1966) (plurality opinion); Cox v. Louisiana, 379 U.S. 536, 543, 85 S.Ct. 453, 457, 13 L.Ed.2d 471 (1965); Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963).2 While First Amendment rights exercised on public property may be subject to reasonable time, place, and manner restrictions, that is very different from saying that government-controlled property, such as a letterbox, does not constitute a public forum. Only where the exercise of First Amendment rights is incompatible with the normal activity occurring on public property have we held that the property is not a public forum. See Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976); Jones v. North Carolina Prisoners' Union, 433 U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977); Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966). Thus, in answering "[t]he crucial question . . . whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time," Grayned v. City of Rockford, supra, at 116, 92 S.Ct., at 2303, I believe that the mere deposit of mailable matter without postage is not "basically incompatible" with the "normal activity" for which a letterbox is used, i. e., deposit of mailable matter with proper postage or mail delivery by the Postal Service. On the contrary, the mails and the letterbox are specifically used for the communication of information and ideas, and thus surely constitute a public forum appropriate for the exercise of First Amendment rights subject to reasonable time, place, and manner restrictions such as those embodied in § 1725 or in the requirement that postage be affixed to mailable matter to obtain access to the postal system.
49
The history of the mails as a vital national medium of expression confirms this conclusion. Just as "streets and parks . . . 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," Hague v. CIO, 307 U.S. 496, 515, 59 S.Ct. 954, 964, 83 L.Ed. 1423 (1939),3 so too the mails from the early days of the Republic have played a crucial role in communication. The Court itself acknowledges the importance of the mails as a forum for communication:
50
"Government without communication is impossible, and until the invention of the telephone and telegraph, the mails were the principal means of communication. . . . In 1775, Franklin was named the first Postmaster General by the Continental Congress, and, because of the trend toward war, the Continental Congress undertook its first serious effort to establish a secure mail delivery organization in order to maintain communication between the States and to supply revenue for the Army." Ante, at 121 (emphasis added).
51
The court further points out that "[t]he Post Office played a vital . . . role in the development of our new Nation," ibid. (emphasis added), and currently processes "106.3 billion pieces of mail each year," ante, at 122. The variety of communication transported by the Postal Service ranges from the sublime to the ridiculous, and includes newspapers, magazines, books, films, and almost any type and form of expression imaginable. See Kappel Commission, Toward Postal Excellence, Report of the President's Commission on Postal Organization 47-48 (Comm. Print 1968). Given "the historic dependence of the Nation on the Postal Service," ante, at 123, it is extraordinary that the Court reaches the conclusion that the letterbox, a critical link in the mail system, is not a public forum.
52
Not only does the Court misapprehend the historic role that the mails have played in national communication, but it relies on inapposite cases to reach its result. Greer v. Spock,4 Adderley v. Florida5 and Jones v. North Carolina Prisoners' Union,6 all rested on the inherent incompatibility between the rights sought to be exercised and the physical location in which the exercise was to occur. Lehman v. City of Shaker Heights7 rested in large measure on the captive audience doctrine, 418 U.S., at 304, 94 S.Ct., at 2717, and in part on the transportation purpose of the city bus system, id., at 303, 94 S.Ct., at 2717. These cases, therefore, provide no support for the Court's conclusion that a letterbox is not a public forum.
B
53
Having determined that a letterbox is not a public forum, the Court inexplicably terminates its analysis. Surely, however, the mere fact that property is not a public forum does not free government to impose unwarranted restrictions on First Amendment rights. The Court itself acknowledges that the postal power "may not . . . be exercised by Congress in a manner that abridges the freedom of speech or of the press protected by the First Amendment to the Constitution." Ante, at 126. Even where property does not constitute a public forum, government regulation that is content-neutral must still be reasonable as to time, place, and manner. See, e. g., Young v. American Mini Theatres, Inc., 427 U.S. 50, 63, n.18, 96 S.Ct. 2440, 2449, n.18, 49 L.Ed.2d 310 (1976). Cf. Linmark Associates, Inc. v. Willingboro, 431 U.S., at 92-93, 97 S.Ct., at 1618; Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771, 96 S.Ct. 1817, 1830, 48 L.Ed.2d 346 (1976). The restriction in § 1725 could have such an effect on First Amendment rights—and does for Justice MARSHALL—that it should be struck down. The Court, therefore, cannot avoid analyzing § 1725 as a time, place, and manner restriction.8
III
54
I would conclude, contrary to the Court, that a letterbox is a public forum, but, nevertheless, concur in the judgment because I conclude that 18 U.S.C. § 1725 is a reasonable time, place, and manner restriction on appellees' exercise of their First Amendment rights.
55
Justice WHITE, concurring in the judgment.
56
There is no doubt that the postal system is a massive, Government-operated communications facility open to all forms of written expression protected by the First Amendment. No one questions, however, that the Government, the operator of the system, may impose a fee on those who would use the system, even though the user fee measurably reduces the ability of various persons or organizations to communicate with others. Appellees do not argue that they may use the mail for home delivery free of charge. A self-evident justification for postage is that the Government may insist that those who use the mails contribute to the expense of maintaining and operating the facility.
57
No different answer is required in this case because appellees do not insist on free home delivery and desire to use only a part of the system, the mailbox. The Government's interest in defraying its operating expenses remains, and it is clear that stuffing the mailbox with unstamped materials is a burden on the system.
58
This justification would suffice even in those situations where insisting on the fee will totally prevent the putative user from communicating with his intended correspondents, i. e., there would be no adequate alternative means available to reach the intended recipients. For this reason, if for no other, I do not find it appropriate to inquire whether the restriction at issue here is a reasonable time, place or manner regulation. Besides that, however, it is apparent that the validity of user fees does not necessarily depend on satisfying typical time, place or manner requirements.
59
Equally bootless is the inquiry whether the postal system is a public forum. For all who will pay the fee, it obviously is, and the only question is whether a user fee may be charged, as a general proposition and in the circumstances of this case. Because I am quite sure that the fee is a valid charge, I concur in the judgment.
60
Justice MARSHALL, dissenting.
61
When the Framers of the Constitution granted Congress the authority "[t]o establish Post Offices and Post Roads," Art. I, § 8, cl. 7, they placed the powers of the Federal Government behind a national communication service. Protecting the economic viability and efficiency of that service remains a legitimate and important congressional objective. This case involves a statute defended on that ground, but I believe it is unnecessary for achieving that purpose and inconsistent with the underlying commitment to communication.
62
The challenged statute, 18 U.S.C. § 1725, prohibits anyone from knowingly placing unstamped "mailable matter" in any box approved by the United States Postal Service for receiving or depositing material carried by the Postal Service. Violators may be punished with fines of up to $300 for each offense. In this case, appellee civic associations claimed, andthe District Court agreed, that this criminal statute unreasonably restricts their First Amendment right of free expression.
63
The Court today upholds the statute on the theory that its focus—the letterbox situated on residential property—is not a public forum to which the First Amendment guarantees access. I take exception to the result, the analysis, and the premise that private persons lose their prerogatives over the letterboxes they own and supply for mail service.
64
First, I disagree with the Court's assumption that if no public forum is involved, the only First Amendment challenges to be considered are whether the regulation is content-based, see ante, at 132-133, and reasonable, ante, at 131, n. 7. Even if the Postal Service were not a public forum, which, as I later suggest, I do not accept, the statute advanced in its aid is a law challenged as an abridgment of free expression. Appellees seek to carry their own circulars and to deposit them in letterboxes owned by private persons who use them to receive mail, and challenge the criminal statute forbidding this use of private letterboxes. The question, then, is whether this statute burdens any First Amendment rights enjoyed by appellees. If so, it must be determined whether this burden is justified by a significant governmental interest substantially advanced by the statute. See Consolidated Edison Co. v. Public Service Comm'n, 447 U.S. 530, 540, 100 S.Ct. 2326, 2334, 65 L.Ed.2d 319 (1980); Grayned v. City of Rockford, 408 U.S. 104, 115, 92 S.Ct. 2294, 2302, 33 L.Ed.2d 222 (1972); Cameron v. Johnson, 390 U.S. 611, 616-617, 88 S.Ct. 1335, 1338, 20 L.Ed.2d 182 (1968); Thornhill v. Alabama, 310 U.S. 88, 96, 104-105, 60 S.Ct. 736, 741, 745, 84 L.Ed. 1093 (1940).
65
That appellee civic associations enjoy the First Amendment right of free expression cannot be doubted; both their purposes and their practices fall within the core of the First Amendment's protections. We have long recognized the constitutional rights of groups which seek, as appellees do, to "communicate ideas, positions on local issues, and civic information to their constituents"1 through written handouts and thereby to promote the free discussion of governmental affairs so central to our democracy. See, e. g., Martin v. City of Struthers, 319 U.S. 141, 146-147, 63 S.Ct. 862, 864, 87 L.Ed. 1313 (1943); Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939); Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1938). By traveling door to door to hand-deliver their messages to the homes of community members, appellees employ the method of written expression most accessible to those who are not powerful, established, or well financed. "Door to door distribution of circulars is essential to the poorly financed causes of little people." Martin v. City of Struthers, supra, at 146, 63 S.Ct., at 864. See Schneider v. State, supra, at 164, 60 S.Ct., at 152. Moreover, "[f]reedom of speech, freedom of the press, freedom of religion are available to all, not merely to those who can pay their own way." Murdock v. Pennsylvania, 319 U.S. 105, 111, 63 S.Ct. 870, 874, 87 L.Ed. 1292 (1943). And such freedoms depend on liberty to circulate; " 'indeed, without circulation, the publication would be of little value.' " Talley v. California, 362 U.S. 60, 64, 80 S.Ct. 536, 538, 4 L.Ed.2d 559 (1960), quoting Lovell v. Griffin, supra, 303 U.S., at 452, 58 S.Ct., at 669.
66
Countervailing public interests, such as protection against fraud and preservation of privacy, may warrant some limitation on door-to-door solicitation and canvassing. But we have consistently held that any such restrictions, to be valid, must be narrowly drawn " 'in such a manner as not to intrude upon the rights of free speech.' " Hynes v. Mayor and Council of Borough of Oradell, 425 U.S. 610, 616, 96 S.Ct. 1755, 1758, 48 L.Ed.2d 243 (1976), quoting Thomas v. Collins, 323 U.S. 516, 540-541, 65 S.Ct. 315, 327, 89 L.Ed. 430 (1945). Consequently, I cannot agree with the Court's conclusion, ante, at 132-133, that we need not ask whether the ban against placing such messages in letterboxes is a restriction on appellees' free expression rights. Once appellees are at the doorstep, only § 1725 restricts them from placing their circulars in the box provided by the resident. The District Court determined after an evidentiary hearing that only by placing their circulars in the letterboxes may appellees be certain that their messages will be secure from wind, rain, or snow, and at the same time will alert the attention of the residents without notifying would-be burglars that no one has returned home to remove items from doorways or stoops. 490 F.Supp. 157, 160-163 (1980). The court concluded that the costs and delays of mail service put the mails out of appellees' reach, and that other alternatives, such as placing their circulars in doorways, are "much less satisfactory." Id., at 160.2 We have in the past similarly recognized the burden placed on First Amendment rights when the alternative channels of communication involve more cost, less autonomy, and reduced likelihood of reaching the intended audience. Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 93, 97 S.Ct. 1614, 1618, 52 L.Ed.2d 155 (1977).
67
I see no ground to disturb these factual determinations of the trier of fact. And, given these facts, the Postal Service bears a heavy burden to show that its interests are legitimate and substantially served by the restriction of appellees' freedom of expression. See e. g., Hynes v. Mayor and Council of the supra, 425 U.S., at 617-618, 96 S.Ct., at 1759; Konigsberg v. State Bar of California, 366 U.S. 36, 49-51, 81 S.Ct. 997, 1005, 6 L.Ed.2d 105 (1961); Marsh v. Alabama, 326 U.S. 501, 509, 66 S.Ct. 276, 280, 90 L.Ed. 265 (1946). Although the majority does not rule that the trial court's findings were clearly erroneous, as would be required to set them aside, the Court finds persuasive the interests asserted by the Postal Service in defense of the statute. Those interests—"protect[ing] mail revenues while at the same time facilitating the secure and efficient delivery of the mails," ante, at 129—are indeed both legitimate and important. But mere assertion of an important, legitimate interest does not satisfy the requirement that the challenged restriction specifically and precisely serve that end. See Hynes v. Mayor and Council of the Borough of Oradell, supra. See also Cox v. Louisiana, 379 U.S. 536, 557-558, 85 S.Ct. 453, 465, 13 L.Ed.2d 471 (1965) (restriction must be applied uniformly and nondiscriminatorily).
68
Here, the District Court concluded that the Postal Service "has not shown that failure to enforce the statute as to [appellees] would result in a substantial loss of revenue, or a significant reduction in the government's ability to protect the mails by investigating and prosecuting mail theft, mail fraud, or unauthorized private mail delivery service." 490 F.Supp., at 163.3 In light of this failure of proof, I cannot join the Court's conclusion that the Federal Government may thus curtail appellees' ability to inform community residents about local civic matters. That decision, I fear, threatens a departure from this Court's belief that free expression, as "the matrix, the indispensable condition, of nearly every other form of freedom," Palko v. Connecticut, 302 U.S. 319, 327, 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937), must not yield unnecessarily before such governmental interests as economy or efficiency. Certainly, free expression should not have to yield here, where the intruding statute has seldom been enforced.4 As the exceptions created by the Postal Service itself demonstrate,5 the statute's asserted purposes easily could be advanced by less intrusive alternatives, such as a nondiscriminatory permit requirement for depositing unstamped circulars in letterboxes.6 Therefore, I would find 18 U.S.C. § 1725 constitutionally defective.
69
Even apart from the result in this case, I must differ with the Court's use of the public forum concept to avoid application of the First Amendment. Rather than a threshold barrier that must be surmounted before reaching the terrain of the First Amendment, the concept of a public forum has more properly been used to open varied governmental locations to equal public access for free expression, subject to the constraints on time, place, or manner necessary to preserve the governmental function. E. g., Grayned v. City of Rockford, 408 U.S., at 115-117, 92 S.Ct., at 2302 (area around public school); Chicago Area Military Project v. Chicago, 508 F.2d 921 (CA7) (city airport), cert. denied, 421 U.S. 992, 95 S.Ct. 1999, 44 L.Ed.2d 483 (1975); Albany Welfare Rights Organization v. Wyman, 493 F.2d 1319 (CA2) (welfare office waiting room), cert. denied sub nom. Lavine v. Albany Welfare Rights Organization, 419 U.S. 838, 95 S.Ct. 66, 42 L.Ed.2d 64 (1974); Wolin v. Port of New York Authority, 392 F.2d 83 (CA2) (port authority), cert. denied, 393 U.S. 940, 89 S.Ct. 290, 21 L.Ed.2d 275 (1968); Reilly v. Noel, 384 F.Supp. 741 (RI 1974) (rotunda of courthouse). See generally Lehman v. City of Shaker Heights, 418 U.S. 298, 303, 94 S.Ct. 2714, 2717, 41 L.Ed.2d 770 (1974); Stone, Fora Americana: Speech in Public Places, S.Ct.Rev. 233, 251-252 (1974). These decisions apply the public forum concept to secure the First Amendment's commitment to expression unfettered by governmental designation of its proper scope, audience, or occasion.
70
I believe these precedents support my conclusion that appellees should prevail in their First Amendment claim. The traditional function of the mails led this Court to embrace Justice Holmes' statement that " '[t]he United States may give up the Post Office when it sees fit, but while it carries it on the use of the mails is as much a part of free speech as the right to use our tongues . . . .' " Lamont v. Postmaster General, 381 U.S. 301, 305, 85 S.Ct. 1493, 1495, 14 L.Ed.2d 398 (1965), quoting United States ex rel. Milwaukee Social Democratic Pub. Co. v. Burleson, 255 U.S. 407, 437, 41 S.Ct. 352, 363, 65 L.Ed. 704 (1921) (Holmes, J., dissenting). Given its pervasive and traditional use as purveyor of written communication, the Postal Service, I believe, may properly be viewed as a public forum. The Court relies on easily distinguishable cases in reaching the contrary conclusion. For the Postal Service's very purpose is to facilitate communication, which surely differentiates it from the military bases, jails, and mass transportation discussed in cases relied on by the Court, ante, at 129-130.7 Cf. Tinker v. Des Moines Independent School- Dist., 393 U.S. 503, 512, 89 S.Ct. 733, 739, 21 L.Ed.2d 731 (1969). Drawing from the exceptional cases, where speech has been limited for special reasons, does not strike me as commendable analysis.
71
The inquiry in our public forum cases has instead asked whether "the manner of expression is basically incompatiblewith the normal activity of a particular place at a particular time." Grayned v. City of Rockford, 408 U.S., at 116, 92 S.Ct., at 2303. Compare Grayned v. City of Rockford (restriction on speech permissible near school while in session) with Tinker v. Des Moines Independent School Dist., supra (symbolic speech protected even during school hours); Cameron v. Johnson, 390 U.S. 611, 88 S.Ct. 1335, 20 L.Ed.2d 182 (1968) (restriction on picketing permitted where limited to entrance of courthouse), with Brown v. Louisiana, 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966) (silent protest in library protected); Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966) (protest near jailyard inconsistent with jail purposes), with Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963) (protest permitted on state capitol grounds). Assuming for the moment that the letterboxes, as "authorized depositories," are under governmental control and thus part of the governmental enterprise, their purpose is hardly incompatible with appellees' use. For the letterboxes are intended to receive written communication directed to the residents and to protect such materials from the weather or the intruding eyes of would-be burglars.
72
Reluctance to treat the letterboxes as public forums might stem not from the Postal Service's approval of their form but instead from the fact that their ownership and use remain in the hands of private individuals.8 Even that hesitation, I should think, would be misguided, for those owners necessarily retain the right to receive information as a counterpart of the right of speakers to speak. Kleindienst v. Mandel, 408 U.S. 753, 762-765, 92 S.Ct. 2576, 2581, 33 L.Ed.2d 683 (1972); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 389-390, 89 S.Ct. 1794, 1806, 23 L.Ed.2d 371 (1969); Lamont v. Postmaster General, supra, 381 U.S., at 307, 85 S.Ct., at 1496; Martin v. City of Struthers, 319 U.S., at 143, 63 S.Ct., at 863. Cf. Procunier v. Martinez, 416 U.S. 396, 408, 94 S.Ct. 1800, 1808, 40 L.Ed.2d 224 (1974) (communication by letter depends on receipt by addressee). On that basis alone, I would doubt the validity of 18 U.S.C. § 1725, for it deprives residents of the information which civic groups or individuals may wish to deliver to these private receptacles.9
73
I remain troubled by the Court's effort to transform the letterboxes entirely into components of the governmental enterprise despite their private ownership. Under the Court's reasoning, the Postal Service could decline to deliver mail unless the recipients agreed to open their doors to the letter carrier and then the doorway, or even the room inside could fall within Postal Service control.10 Instead of starting with the scope of governmental control, I would adhere to our usual analysis which looks to whether the exercise of a First Amendment right is burdened by the challenged governmental action, and then upholds that action only where it is necessary to advance a substantial and legitimate governmental interest. In my view, the statute criminalizing the placement of hand-delivered civic association notices in letterboxes fails this test. The brute force of the criminal sanction and other powers of the Government, I believe, may be deployed to restrict free expression only with greater justification. I dissent.
74
Justice STEVENS, dissenting.
75
Justice MARSHALL has persuaded me that this statute is unconstitutional, but I do not subscribe to all of his reasoning. He is surely correct in concluding that content-neutral restrictions on the use of private letterboxes do not automatically comply with the First Amendment simply because such boxes are a part of the Postal Service. Like libraries and schools, once these facilities have come into existence, the Government's regulation of them must comply with the Constitution. See ante, at 151, n. 10. I cannot, however, accept the proposition that these private receptacles are the functional equivalent of public fora.
76
My disagreement with the Court and with Justice MARSHALL can best be illustrated by looking at this case from the point of view of the owner of the mailbox. The mailbox is private property; it is not a public forum to which the owner must grant access. If the owner does not want to receive any written communications other than stamped mail, he should be permitted to post the equivalent of a "no trespassing" sign on his mailbox. A statute that protects his privacy by prohibiting unsolicited and unwanted deposits on his property would surely be valid. The Court, however, upholds a statute that interferes with the owner's receipt of information that he may want to receive. If the owner welcomes messages from his neighbors, from the local community organization, or even from the newly arrived entrepreneur passing out free coupons, it is presumptively unreasonable to interfere with his ability to receive such communications. The nationwide criminal statute at issue here deprives millions of homeowners of the legal right to make a simple decision affecting their ability to receive communications from others.
77
The Government seeks to justify the prohibition on three grounds: avoiding the loss of federal revenues, preventing theft from the mails, and maintaining the efficiency of the Postal Service.1 In my judgment the first ground is frivolous and the other two, though valid, are insufficient to overcome the presumption that this impediment to communication is invalid.
78
If a private party—by using volunteer workers or by operating more efficiently—can deliver written communications for less than the cost of postage, the public interest would be well served by transferring that portion of the mail delivery business out of the public domain. I see no reason to prohibit competition simply to prevent any reduction in the size of a subsidized monopoly. In my opinion, that purpose cannot justify any restriction on the interests in free communication that are protected by the First Amendment.
79
To the extent that the statute aids in the prevention of theft, that incidental benefit was not a factor that motivated Congress.2 The District Court noted that the testimony indicated that § 1725 "was marginally useful" in the enforcement of the statutes relating to theft of mail. 490 F.Supp. 157, 161-162 (1980). It concluded, however, that the Government had failed to introduce evidence sufficient to justify the interference with First Amendment interests.3 The Court does not quarrel with any of the District Court's findings of fact, and I would not disturb the conclusion derived from those findings.
80
Mailboxes cluttered with large quantities of written matter would impede the efficient performance of the mail carrier's duties. Sorting through papers for mail to be picked up or having no space in which to leave mail that should be delivered can unquestionably consume valuable time. Without the statute that has been in place for decades, what may now appear to be merely a minor or occasional problem might grow like the proverbial beanstalk. Rather than take that risk, Congress has decided that the wiser course is a total prohibition that will protect the free flow of mail.
81
But as Justice MARSHALL has noted, the problem is susceptible of a much less drastic solution. See ante, at 146, n. 3. There are probably many overstuffed mailboxes now—and if this statute were repealed there would be many more—but the record indicates that the relatively empty boxes far outnumber the crowded ones. If the statute allowed the homeowner to decide whether or not to receive unstamped communications—and to have his option plainly indicated on the exterior of the mailbox—a simple requirement that overstuffed boxes be replaced with larger ones should provide the answer to most of the Government's concern.4
82
I am fully aware that it is one thing to sit in judicial chambers and opine that a postal regulation is not really necessary and quite another to run a mammoth and complex operation like the Postal Service. Conceivably, the invalidation of this law would unleash a flow of communication that would sink the mail service in a sea of paper. But were that to happen, it would merely demonstrate that this law is a much greater impediment to the free flow of communication than is presently assumed. To the extent that the law prevents mailbox clutter, it also impedes the delivery of written messages that would otherwise take place.
83
Finally, we should not ignore the fact that nobody has ever been convicted of violating this middle-aged nationwide statute. It must have been violated literally millions of times. Apparently the threat of enforcement has enabled the Government to collect some postage from time to time or to cause a few violators to discontinue their unlawful practices, but I have the impression that the general public is at best only dimly aware of the law and that numerous otherwise law-abiding citizens regularly violate it with impunity. This impression supports the conclusion that the statute is indeed much broader than is necessary to serve its limited purpose. Because, as Justice MARSHALL has demonstrated, it does unquestionably abridge the free exchange of written expression, I agree with his conclusion that it violates the First Amendment.
84
I respectfully dissent.
1
On this point, a postal investigator testified that the Postal Service tries to engage in physical surveillance on the one or two days a month that large numbers of government checks are delivered. The investigator testified that without § 1725 "we would have many more people having access to the mailboxes or being in the vicinity of the mailboxes. This type of activity could hinder our surveillances in that we would not be sure if a person we see approaching a mailbox is a subject or has a legitimate reason for being there." App. 160. The investigator also stated that the Postal Service receives "many phone calls from concerned citizens who may report that someone has been seen in the area of their mailboxes. We try to respond to that area if at all possible to determine who that individual may be." Ibid. The Postal Service also receives assistance from local police who may be doing a similar type of surveillance and who would have "a difficult time identifying who it is exactly going into mailboxes. . . ." Id., at 161.
2
The District Court reasoned that the alternative methods suggested by the Postal Service were inadequate because they can result in the civic notices either being lost or damaged as a result of wind, rain, or snow. Weatherstripping on doors may prevent the flyers from being placed under the door. Use of plastic bags for protection of the civic notices is both time consuming and "relatively expensive for a small volunteer organization. . . ." 490 F.Supp., at 160. Deposit of materials outside may cause litter problems as well as arouse resentment among residents because it informs burglars that no one is home. Alternative methods which depend on reaching the occupant personally are less effective because their success depends on the mere chance that the person called or visited will be home at any given time. The court also found that enforcement of § 1725 against civic associations "does not appear so necessary or contributive to enforcement of the anti-theft, anti-fraud or Private Express statutes that this interest outweighs the [appellees'] substantial interest in expedient and economical communication with their constituents." Id., at 163. Based on the above, the District Court concluded that "the cost to free expression of imposing this burden on [appellees] outweighs the showing made by the Postal Service of its need to enforce the statute to promote effective delivery and protection of the mails." Id., at 162.
3
There appear to be at least two minor exceptions to this regulation. DMM 156.58 provides that "publishers of newspapers regularly mailed as second-class mail may, on Sundays and national holidays only, place copies of the Sunday or holiday issues in the rural and highway contract route boxes of subscribers, with the understanding that copies will be removed from the boxes before the next day on which mail deliveries are scheduled." This particular exception is designed to protect mail revenues by encouraging newspapers to use second-class mail for delivery of their papers. The exception allows distributors to deliver their papers in letterboxes only under certain conditions and on certain days when mail service is unavailable. A second exception to the requirement that only mail which bears postage may be placed in letterboxes is contained in DMM 156.4, which authorizes rural postal customers to leave unstamped mail in letterboxes when they also leave money for postage.
4
We reject appellees' additional assertion raised below that 18 U.S.C. § 1725 cannot be applied to them because it was intended to bar the deposit of commercial materials only. The statute on its face bars the deposit of "any mailable matter" (emphasis added) without proper postage, and, as more fully explained by the District Court in its initial opinion rejecting this contention, the legislative history makes clear that both Congress and the Postal Service understood the statute would apply to noncommercial as well as commercial materials. 448 F.Supp., at 160-162.
5
Justice BRENNAN, concurring in the result, quotes the oft repeated aphorism of Justice Holmes, dissenting, in United States ex rel. Milwaukee Social Democratic Pub. Co. v. Burleson, 255 U.S. 407, 437, 41 S.Ct. 352, 363, 65 L.Ed. 704 (1921), that "[t]he United States may give up the Post Office when it sees fit, but while it carries it on the use of the mails is almost as much a part of free speech as the right to use our tongues, and it would take very strong language to convince me that Congress ever intended to give such a practically despotic power to any one man." Justice BRENNAN also quoted this aphorism in his opinion for the Court in Blount v. Rizzi, 400 U.S. 410, 416, 91 S.Ct. 423, 428, 27 L.Ed.2d 498 (1971), a case dealing with the Postmaster General's authority to prevent distributions of obscene matter, which has little if any relation to the present case because no one contends that appellees' circulars are obscene. Justice BRENNAN, however, does not refer to the dissenting opinion of Justice Brandeis in Burleson (with respect to which Justice Holmes said "I agree in substance with his view." 255 U.S., at 436, 41 S.Ct., at 363). There, Justice Brandeis goes into a more detailed analysis of the relationship of the mails to the prohibitions of the First Amendment, and states:
"The Government might, of course, decline altogether to distribute newspapers; or it might decline to carry any at less than the cost of service; and it would not thereby abridge the freedom of the press, since to all papers other means of transportation would be left open." Id., at 431, 41 S.Ct., at 360. It seems to us that that is just what the Postal Service here has done: it has by no means declined to distribute the leaflets which appellees seek to have deposited in mailboxes, but has simply insisted that the appellees pay the same postage that any other circular in its class would have to bear. Thus, neither the dissent of Justice Brandeis nor of Justice Holmes in Burleson supports Justice BRENNAN's position.
6
Justice BRENNAN argues that a letterbox is a public forum because
"the mere deposit of mailable matter without postage is not 'basically incompatible' with the 'normal activity' for which a letterbox is used, i. e., deposit of mailable matter with proper postage or mail delivery by the Postal Service. On the contrary, the mails and the letterbox are specifically used for the communication of information and ideas, and thus surely constitute a public forum appropriate for the exercise of First Amendment rights subject to reasonable time, place, and manner restrictions such as those embodied in § 1725. . . ." Post, at 137-138.
Justice BRENNAN's analysis assumes that simply because an instrumentality "is used for the communication of ideas or information," it thereby becomes a public forum. Our cases provide no support for such a sweeping proposition. Certainly, a bulletin board in a cafeteria at Fort Dix is "specifically used for the communication of information and ideas," but such a bulletin board is no more a "public forum" than are the street corners and parking lots found not to be so at the same military base. Greer v. Spock, 424 U.S 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976). Likewise, the advertising space made available in public transportation in the city of Shaker Heights is "specifically used for the communication of information and ideas," but that fact alone was not sufficient to transform that space into a "public forum" for First Amendment purposes. Lehman v. City of Shaker Heights, 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770 (1974). In fact, Justice BLACKMUN recognized in Lehman that:
"Were we to hold to the contrary, display cases in public hospitals, libraries, office buildings, military compounds, and other public facilities immediately would become Hyde Parks open to every would-be pamphleteer and politician. This the Constitution does not require." Id., at 304, 94 S.Ct., at 2718.
For the reasons we have stated at length in our opinion, we think the appellees' First Amendment activities are wholly incompatible with the maintenance of a nationwide system for the safe and efficient delivery of mail. The history of the postal system and the role the letterbox serves within that system supports this conclusion, and even Justice BRENNAN acknowledges that a "significant governmental interest" is advanced by the restriction imposed by § 1725. Post, at 135.
7
Justice MARSHALL in his dissent, post, at 143, states that he disagrees "with the Court's assumption that if no public forum is involved, the only First Amendment challenges to be considered are whether the regulation is content-based . . . and reasonable. . . ." The First Amendment prohibits Congress from "abridging freedom of speech, or of the press," and its ramifications are not confined to the "public forum" first noted in Hague v. CIO, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939). What we hold is the principle reiterated by cases such as Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966), and Greer v. Spock, supra, that property owned or controlled by the government which is not a public forum may be subject to a prohibition of speech, leafleting, picketing, or other forms of communication without running afoul of the First Amendment. Admittedly, the government must act reasonably in imposing such restrictions. Jones v. North Carolina Prisoners' Union, 433 U.S. 119, 130-131, 97 S.Ct. 2532, 2540, 53 L.Ed.2d 629 (1977), and the prohibition must be content-neutral. But, for the reasons stated in our opinion, we think it cannot be questioned that § 1725 is both a reasonable and content-neutral regulation.
Even Justice MARSHALL's dissent recognizes that the Government may defend the regulation here on a ground other than simply a "time, place, and manner" basis. For example, he says in dissent, post, at 143: "The question, then, is whether the statute burdens any First Amendment rights enjoyed by appellees. If so, it must be determined whether this burden is justified by a significant governmental interest substantially advanced by the statute." We think § 1725 satisfies even the test articulated by Justice MARSHALL.
1
It would make no sense to conclude that the "mails" are a vital medium of expression, but that letterboxes are not. Inasmuch as the Postal Service, by regulation, requires postal customers to provide appropriate mail receptacles conforming to specified dimensions, the letterbox is an indispensable component of the mail system.
2
Of course, the postal power must be exercised in a manner consistent with the First Amendment. See Blount v. Rizzi, 400 U.S. 410, 416, 91 S.Ct. 423, 428, 27 L.Ed.2d 498 (1971); Lamont v. Postmaster General, 381 U.S. 301, 305-306, 85 S.Ct. 1493, 1495, 14 L.Ed.2d 398 (1965).
3
See generally, Gibbons, Hague v. CIO: A Retrospective, 52 N.Y.U.L.Rev. 731 (1977).
4
In Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976), pursuant to base regulations political candidates were denied permission to distribute campaign literature and to hold a political meeting on a military base. In upholding the challenged regulations, the Court specifically relied on the unique function of military installations "to train soldiers, not to provide a public forum," id., at 838, 96 S.Ct., at 1217, and the historic power of a commanding officer " 'to exclude civilians from the area of his command.' " Ibid., quoting Cafeteria Workers v. McElroy, 367 U.S. 886, 893, 81 S.Ct. 1743, 1747, 6 L.Ed.2d 1230 (1961).
5
In Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966), the Court upheld trespass convictions of students who were demonstrating on jailhouse property, relying principally on the purpose of jails, "built for security purposes," id., at 41, 87 S.Ct., at 244, which unlike "state capitol grounds," are not open to the public. Ibid.
6
In Jones v. North Carolina Prisoners' Union, 433 U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977), prisoners challenged the constitutionality of prison regulations prohibiting prisoners from soliciting other inmates to join a prisoners' labor union and barring union meetings and bulk mailings concerning the union from outside sources. The Court upheld the regulations in the face of a First Amendment challenge on the basis that the First Amendment activity was incompatible with "reasonable considerations of penal management." Id., at 132, 97 S.Ct., at 2541. The Court also rejected the prisoners' equal protection challenge. The Court analogized a prison to a military base, stating that a "prison may be no more easily converted into a public forum than a military base," id., at 134, 97 S.Ct., at 2542, and concluded that prison officials could treat the union differently from other organizations such as the Jaycees and Alcoholics Anonymous for meetings and for bulk mailing purposes, because the "chartered purpose of the Union . . . was illegal under North Carolina law." Id., at 135-136, 97 S.Ct., at 2542.
7
In Lehman v. City of Shaker Heights, 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed. 770 (1974), the Court upheld a ban on political advertising in buses, but only four Justices concluded that advertising space in a city transit system is not a First Amendment forum. They reached that result because the transit system sought, by its limitation on political speech, "to minimize chances of abuse, the appearance of favoritism, and the risk of imposing upon a captive audience." Id., at 304, 94 S.Ct., at 2718. Justice Douglas concurred in the judgment on the narrow ground that petitioner had no constitutional right to force his message upon a captive audience. Joined by Justices STEWART, MARSHALL, and POWELL, I dissented on the ground that "the city created a forum for the dissemination of information and expression of ideas when it accepted and displayed commercial and public service advertisements on its rapid transit vehicles." Id., at 310, 97 S.Ct., at 2720.
8
Even if the letterbox were characterized as purely private property that is being regulated by the Government, rather than property which has become incorporated into the "Postal Service's nationwide system for the receipt and delivery of mail," ante, at 123, § 1725 would still be subject to time, place, and manner analysis. See, e. g., Young v. American Mini Theatres, Inc., 427 U.S. 50, 63, n.18, 96 S.Ct. 2440, 2449, n.18, 49 L.Ed.2d 310 (1976).
1
490 F.Supp. 157, 162 (1980).
2
Indeed, the record in this litigation indicates that appellees circulated less information when inhibited from using the letterboxes. Plaintiffs' Answer to Written Interrogatories, Record, Doc. No. 23, ¶ 8, pp. 6-7. The practical effect of applying the statute in residential communities would preclude Girl Scouts, Boy Scouts, charities, neighbors, and others from leaving invitations or notes in the place residents most likely check for messages.
3
The Government's interest in ensuring the security of the mails is advanced more directly by 18 U.S.C. §§ 1341, 1708. To the extent that the security and efficiency problems are attributed to overcrowding in letterboxes, the problem could be resolved simply by requiring larger boxes.
As for protection of mail revenues, it is significant that the District Court found the cost of using the mails prohibitive, given appellees' budgets, and the delays in mail delivery too great to make it useful for appellees' needs. 490 F.Supp., at 160. Apparently, appellees' compliance with 18 U.S.C. § 1725 would not increase mail revenues. Although protection of the Postal Service obviously must take the form of national regulation, having broad application, a statute's nondiscriminatory terms may not save it where infringement of speech is demonstrated. Murdock v. Pennsylvania, 319 U.S. 105, 115, 63 S.Ct. 870, 876, 87 L.Ed. 1292 (1943).
4
Appellant conceded at oral argument that the Postal Service knew of no convictions and only one attempted prosecution under the statute. Tr. of Oral Arg. 15. That unsuccessful prosecution was dismissed because the District Court found impermissibly vague the prohibition on depositing unstamped "mailable matter such as statements of account, circulars, sales bills, or other like matter." United States v. Rogers, Cr. No. 72-87 (MD La. Feb. 16, 1973) (emphasis added). Apparently, no prosecutions have since been attempted, although the statute may be used to support the efforts of local postal offices in collecting unpaid postage. Tr. of Oral Arg. 15.
5
The Postal Service has interpreted the statute to exempt mailslots, id., at 8, and to provide exception for certain kinds of deliveries, Domestic Mail Manual (DMM) 156.58 (newspapers, normally mailed but delivered on Sunday or holidays); 39 CFR § 310.6 (1979) (letters dispatched within 50 miles of destination and same-day delivery). And by applying only to "mailable matter," the statute excludes pornography and other items not lawfully carried by the Postal Service. The Service thus has itself acknowledged that the statute sweeps more broadly than necessary.
6
Such a permit requirement could accomplish the central purpose of the statute—to restrain commercial enterprises from avoiding postal fees by employing their own delivery services. See ante, at 125.
7
Rather than supporting the conclusion that the Postal Service letterbox is not a public forum, the cases cited by the majority, ante, at 129-130, in fact point in the other direction. The Court resolved two First Amendment issues in Jones v. North Carolina Prisoners' Union, 433 U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977): the scope of associational rights retained by convicted prisoners, and their right, if any, to bulk mail rates. The Court analyzed both issues under the principle that while in prison, "an inmate does not retain those First Amendment rights that are 'inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections
system.' " Id., at 129, 97 S.Ct., at 2539, quoting Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1974). No such principle applies to appellees. Furthermore, the public forum analysis in Jones asked whether exercise of the First Amendment rights would be incompatible with the purposes of the governmental facility, a question answerable in the negative in this case.
In Greer v. Spock, 424 U.S. 828, 838, 96 S.Ct. 1211, 1217, 47 L.Ed.2d 505 (1976), the Court concluded that Fort Dix was not a public forum due to its military purpose and the power of " 'the commanding officer summarily to exclude civilians from the area of his command' " (quoting Cafeteria Workers v. McElroy, 367 U.S. 886, 893, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961)). At the same time, the Court emphasized that political campaign literature could still be distributed at the base unless it posed a clear danger to troop discipline and loyalty, 424 U.S., at 840, 96 S.Ct., at 1218. Thus, the base remained a "public forum" at least for written communication. A plurality of the Court in Lehman v. City of Shaker Heights, 418 U.S. 298, 303-304, 94 S.Ct. 2714, 2717, 41 L.Ed.2d 770 (1974), found the city transit system not a public forum because its advertising space was incidental to its primary commercial transportation purpose. The plurality nevertheless recognized that the state action present necessitated a balancing analysis of the First Amendment interests of those seeking advertising space and the interests of the government and the users of the transit system. Further, both the plurality and Justice Douglas, in his separate opinion concurring in the result, relied on an analogy to the mass media which has no obligation under the First Amendment to broadcast or print any particular story or advertisement. Id., at 303, 94 S.Ct., at 2717 (opinion of BLACKMUN, J.); id., at 306, 94 S.Ct., at 2718 (opinion of Douglas, J.). In contrast, the Postal Service is obliged to accept all mailable matter. Finally, in Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966), the security needs of the jail were critical to the Court's conclusion that trespassers on the jail grounds could properly be prosecuted. Adderley itself noted that spaces more traditionally used by the public would more likely be public forums, id., at 41-42, 87 S.Ct., at 244, and this treatment is appropriate here, given the traditional public use of the Postal Service. The determinative question in each of these cases was not whether the government owned or controlled the property, but whether the nature of the governmental interests warranted the restrictions on expression. That is the question properly asked in this case.
8
But see Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946).
9
The Court announced the First Amendment rights of recipients in Lamont v. Postmaster General, 381 U.S. 301, 85 S.Ct. 1493, 14 L.Ed.2d 398 (1965). There, the Court struck down a postal regulation denying delivery of Communist propaganda sent from outside the country, even though the regulation permitted such delivery to recipients who notified the Postal Service in writing that they wished to receive the material. Untenable, in the Court's view, was the fact that under the regulatory scheme, "[t]he addressee carries an affirmative obligation which we do not think the Government may impose on him." Id., at 307, 85 S.Ct., at 1496. The concern for the addressee's First Amendment rights should govern here.
10
Appellant suggests no First Amendment problem is presented because residents would not erect letterboxes but for the Postal Service, and the First Amendment did not compel the creation of the Service. Brief for Appellant 18-19. This argument obviously proves too much, because the First Amendment did not ordain the establishment of schools or libraries, and yet we have held that once established, these public facilities must be managed consistently with the First Amendment. Tinker v. Des Moines Independent School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969); Brown v. Louisiana, 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966).
1
Although the Government also advances the privacy interests of the mailbox owner, those interests would of course be protected by allowing the individual owner to make the choice whether he wanted to receive unstamped mail.
2
The Government, see Brief for Appellant 4, n. 4, cites legislative history indicating that the "principal motivation for the statute" was the protection of postal revenues and prevention of overstuffing of mailboxes. The Government later notes that "[a]lthough Congress' primary purpose in enacting Section 1725 was the protection of mail revenues, the statute also plays a role in the investigation of mail theft." Id., at 7. Because this justification, unlike the other two, was formulated after the statute was enacted, it is not entitled to the same weight as the purposes that actually motivated Congress.
3
The District Court held that "enforcement of § 1725 against civic associations does not appear so necessary or contributive to enforcement of the anti-theft, anti-fraud or Private Express statutes that this interest outweighs the plaintiffs' substantial interest in expedient and economical communication with their constituents." 490 F.Supp., at 163.
4
To the extent that the efficiency of the Postal Service would be impeded by the effort required for mail carriers to sort through papers for outgoing mail, the solution is again in the hands of the individual owner of the mailbox. If he wants to use this method of sending letters and wants also to receive unstamped communications, he runs the risk that his outgoing mail will not be seen by the mail carrier.
| 23
|
453 U.S. 210
101 S.Ct. 2728
69 L.Ed.2d 589
Richard John McCARTY, Appellant,v.Patricia Ann McCARTY.
No. 80-5.
Argued March 2, 1981.
Decided June 26, 1981.
Syllabus
A regular commissioned officer of the United States Army who retires after 20 years of service is entitled to retired pay. Retired pay terminates with the officer's death, although he may designate a beneficiary to receive any arrearages that remain unpaid at death. In addition there are statutory plans that allow the officer to set aside a portion of his retired pay for his survivors. Appellant, a Regular Army Colonel, filed a petition in California Superior Court for dissolution of his marriage to appellee. At the time, he had served approximately 18 of the 20 years required for retirement with pay. Under California law, each spouse, upon dissolution of a marriage, has an equal and absolute right to a half interest in all community and quasi-community property, but retains his or her separate property. In his petition, appellant requested, inter alia, that his military retirement benefits be confirmed to him as his separate property. The Superior Court held, however, that such benefits were subject to division as quasi-community property, and accordingly ordered appellant to pay to appellee a specified portion of the benefits upon retirement. Subsequently, appellant retired and began receiving retired pay; under the dissolution decree, appellee was entitled to approximately 45% of the retired pay. On review of this award, the California Court of Appeal affirmed, rejecting appellant's contention that because the federal scheme of military retirement benefits pre-empts state community property law, the Supremacy Clause precluded the trial court from awarding appellee a portion of his retired pay.
Held: Federal law precludes a state court from dividing military retired pay pursuant to state community property laws. Pp. 220-236.
(a) There is a conflict between the terms of the federal military retirement statutes and the community property right asserted by appellee. The military retirement system confers no entitlement to retired pay upon the retired member's spouse, and does not embody even a limited "community property concept." Rather, the language, structure, and history of the statutes make it clear that retired pay continues to be the personal entitlement of the retiree. Pp. 221-232.
(b) Moreover, the application of community property principles to military retired pay threatens grave harm to "clear and substantial" federal interests. Thus, the community property division of retired pay, by reducing the amounts that Congress has determined are necessary for the retired member, has the potential to frustrate the congressional objective of providing for the retired service member. In addition, such a division has the potential to interfere with the congressional goals of having the military retirement system serve as an inducement for enlistment and re-enlistment and as an encouragement to orderly promotion and a youthful military. Pp. 232-235.
Reversed and remanded.
Mattaniah Eytan, San Francisco, Cal., for appellant.
Walter T. Winter, San Francisco, Cal., for appellee.
Justice BLACKMUN delivered the opinion of the Court.
1
A regular or reserve commissioned officer of the United States Army who retires after 20 years of service is entitled to retired pay. 10 U.S.C. §§ 3911 and 3929. The question presented by this case is whether, upon the dissolution of a marriage, federal law precludes a state court from dividing military nondisability retired pay pursuant to state community property laws.
2
* Although disability pensions have been provided to military veterans from the Revolutionary War period to the present,1 it was not until the War Between the States that Congress enacted the first comprehensive nondisability military retirement legislation. See Preliminary Review of Military Retirement Systems: Hearings before the Military Compensation Subcommittee of the House Committee on Armed Services, 95th Cong., 1st and 2d Sess., 5 (1977-1978) (Military Retirement Hearings) (statement of Col. Leon S. Hirsh, Jr., USAF, Director of Compensation, Office of the Assistant Secretary of Defense for Manpower, Reserve Affairs, and Logistics); Subcommittee on Retirement Income and Employment, House Select Committee on Aging, Women and Retirement Income Programs: Current Issues of Equity and Adequacy, 96th Cong., 1st Sess., 15 (Comm.Print 1979) (Women and Retirement). Sections 15 and 21 of the Act of Aug. 3, 1861, 12 Stat. 289, 290, provided that any Army, Navy, or Marine Corps officer with 40 years of service could apply to the President to be retired with pay; in addition, §§ 16 and 22 of that Act authorized the involuntary retirement with pay of any officer "incapable of performing the duties of his office." 12 Stat. 289, 290.
3
The impetus for this legislation was the need to encourage or force the retirement of officers who were not fit for wartime duty.2 Women and Retirement, at 15. Thus, from its inception,3 the military nondisability retirement system has been "as much a personnel management tool as an income maintenance method," id., at 16; the system was and is designed not only to provide for retired officers, but also to ensure a "young and vigorous" military force, to create an orderly pattern of promotion and to serve as a recruiting and re-enlistment inducement. Military Retirement Hearings, at 4-6, 13 (statement of Col. Hirsh).
4
Under current law, there are three basic forms of military retirement: nondisability retirement; disability retirement; and reserve retirement. See id., at 4. For our present purposes, only the first of these three forms is relevant.4 Since each of the military services has substantially the same nondisability retirement system, see id., at 5, the Army's system may be taken as typical.5 An Army officer who has 20 years of service, at least 10 of which have been active service as a commissioned officer, may request that the Secretary of the Army retire him. 10 U.S.C. § 3911.6 An officer who requests such retirement is entitled to "retired pay." This is calculated on the basis of the number of years served and rank achieved. §§ 3929 and 3991.7 An officer who serves for less than 20 years is not entitled to retired pay.
5
The nondisability retirement system is noncontributory in that neither the service member nor the Federal Government makes periodic contributions to any fund during the period of active service; instead, retired pay is funded by annual appropriations. Military Retirement Hearings, at 5. In contrast, since 1957, military personnel have been required to contribute to the Social Security System. Pub. L. 84-881, 70 Stat. 870. See 42 U.S.C. §§ 410 (l) and (m). Upon satisfying the necessary age requirements, the Army retiree, the spouse, an ex-spouse who was married to the retiree for at least 10 years, and any dependent children are entitled to Social Security benefits. See 42 U.S.C. §§ 402(a) to (f) (1976 ed. and Supp. IV).
6
Military retired pay terminates with the retired service member's death, and does not pass to the member's heirs. The member, however, may designate a beneficiary to receive any arrearages that remain unpaid at death. 10 U.S.C. § 2771. In addition, there are statutory schemes that allow a service member to set aside a portion of the member's retired pay for his or her survivors. The first such scheme, now known as the Retired Serviceman's Family Protection Plan (RSFPP), was established in 1953. Act of Aug. 8, 1953, 67 Stat. 501, current version at 10 U.S.C. §§ 1431-1446 (1976 ed. and Supp. IV). Under the RSFPP, the military member could elect to reduce his or her retired pay in order to provide, at death, an annuity for a surviving spouse or child. Participation in the RSFPP was voluntary, and the participating member, prior to receiving retired pay, could revoke the election in order "to reflect a change in the marital or dependency status of the member or his family that is caused by death, divorce, annulment, remarriage, or acquisition of a child . . . ." § 1431(c). Further, deductions from retired pay automatically cease upon the death or divorce of the service member's spouse. § 1434(c).
7
Because the RSFPP was self-financing, it required the deduction of a substantial portion of the service member's retired pay; consequently, only about 15% of eligible military retirees participated in the plan. See H.R.Rep.No.92-481, pp. 4-5 (1971); S.Rep.No.92-1089, p. 11 (1972), U.S. Code Cong. and Admin. News 1972, p. 3288. In order to remedy this situation, Congress enacted the Survivor Benefit Plan (SBP) in 1972. Pub. L. 92-425, 86 Stat. 706, codified, as amended, at 10 U.S.C. §§ 1447-1455 (1976 ed. and Supp. IV). Participation in this plan is automatic unless the service member chooses to opt out. § 1448(a). The SBP is not entirely self-financing; instead, the Government contributes to the plan, thereby rendering participation in the SBP less expensive for the service member than participation in the RSFPP. Participants in the RSFPP were given the option of continuing under that plan or of enrolling in the SBP. Pub. L. 92-425, § 3, 86 Stat. 711, as amended by Pub. L. 93-155, § 804, 87 Stat. 615.
II
8
Appellant Richard John McCarty and appellee Patricia Ann McCarty were married in Portland, Ore., on March 23, 1957, while appellant was in his second year in medical school at the University of Oregon. During his fourth year in medical school, appellant commenced active duty in the United States Army. Upon graduation, he was assigned to successive tours of duty in Pennsylvania, Hawaii, Washington, D. C., California, and Texas. After completing his duty in Texas, appellant was assigned to Letterman Hospital on the Presidio Military Reservation in San Francisco, where he became Chief of Cardiology. At the time this suit was instituted in 1976, appellant held the rank of Colonel and had served approximately 18 of the 20 years required under 10 U.S.C. § 3911 for retirement with pay.
9
Appellant and appellee separated on October 31, 1976. On December 1 of that year, appellant filed a petition in the Superior Court of California in and for the City and County of San Francisco requesting dissolution of the marriage. Under California law, a court granting dissolution of a marriage must divide "the community property and the quasi-community property of the parties." Cal.Civ.Code Ann. § 4800(a) (West Supp.1981). Like seven other States, California treats all property earned by either spouse during the marriage as community property; each spouse is deemed to make an equal contribution to the marital enterprise, and therefore each is entitled to share equally in its assets. See Hisquierdo v. Hisquierdo, 439 U.S. 572, 577-578, 99 S.Ct. 802, 806-807, 59 L.Ed.2d 1 (1979). "Quasi-community property" is defined as
10
"all real or personal property, wherever situated heretofore or hereafter acquired . . . [b]y either spouse while domiciled elsewhere which would have been community property if the spouse who acquired the property had been domiciled in [California] at the time of its acquisition." Cal.Civ.Code Ann. § 4803 (West Supp.1981).
11
Upon dissolution of a marriage, each spouse has an equal and absolute right to a half interest in all community and quasi-community property; in contrast, each spouse retains his or her separate property, which includes assets the spouse owned before marriage or acquired separately during marriage through gift. See Hisquierdo, 439 U.S., at 578, 99 S.Ct., at 806.
12
In his dissolution petition, appellant requested that all listed assets, including "[a]ll military retirement benefits," be confirmed to him as his separate property. App. 2. In her response appellee also requested dissolution of the marriage, but contended that appellant had no separate property and that therefore his military retirement benefits were "subject to disposition by the court in this proceeding."8 Id., at 8-9. On November 23, 1977, the Superior Court entered findings of fact and conclusions of law holding that appellant was entitled to an interlocutory judgment dissolving the marriage. Id., at 39, 44. Appellant was awarded custody of the couple's three minor children; appellee was awarded spousal support. The court found that the community property of the parties consisted of two automobiles, cash, the cash value of life insurance policies, and an uncollected debt. Id., at 42. It allocated this property between the parties. Id., at 45. In addition, the court held that appellant's "military pension and retirement rights" were subject to division as quasi-community property. Ibid. Accordingly, the court ordered appellant to pay to appellee, so long as she lives,
13
"that portion of his total monthly pension or retirement payment which equals one-half (1/2) of the ratio of the total time between marriage and separation during which [appellant] was in the United States Army to the total number of years he has served with the . . . Army at the time of retirement." Id., at 43-44.
14
The court retained jurisdiction "to make such determination at that time and to supervise distribution . . . ." Ibid. On September 30, 1978, appellant retired from the Army after 20 years of active duty and began receiving retired pay; under the decree of dissolution, appellee was entitled to approximately 45% of that retired pay.
15
Appellant sought review of the portion of the Superior Court's decree that awarded appellee an interest in the retired pay. The California Court of Appeal, First Appellate District, however, affirmed the award. App. to Juris. Statement 32. In so ruling, the court declined to accept appellant's contention that because the federal scheme of military retirement benefits pre-empts state community property laws, the Supremacy Clause, U. S. Const., Art. VI, cl. 2, precluded the trial court from awarding appellee a portion of his retired pay.9 The court noted that this precise contention had been rejected in In re Fithian, 10 Cal.3d 592, 111 Cal.Rptr. 369, 517 P.2d 449, cert. denied, 419 U.S. 825, 95 S.Ct. 41, 42 L.Ed.2d 48 (1974).10 Furthermore, the court concluded that the result in Fithian had not been called into question by this Court's subsequent decision in Hisquierdo v. Hisquierdo, supra, where it was held that benefits payable under the federal Railroad Retirement Act of 1974 could not be divided under state community property law. See also Gorman v. Gorman, 90 Cal.App.3d 454, 153 Cal.Rptr. 479 (1979).11
16
The California Supreme Court denied appellant's petition for hearing. App. to Juris. Statement 83.
17
We postponed jurisdiction. 449 U.S. 917, 101 S.Ct. 314, 66 L.Ed.2d 145 (1980). We have now concluded that this case properly falls within our appellate jurisdiction,12 and we therefore proceed to the merits.
III
18
This Court repeatedly has recognized that " '[t]he whole subject of the domestic relations of husband and wife . . . belongs to the laws of the States and not to the laws of the United States.' " Hisquierdo, 439 U.S., at 581, 99 S.Ct., at 808, quoting In re Burrus, 136 U.S. 586, 593-594, 10 S.Ct. 850, 852-853, 34 L.Ed. 500 (1890). Thus, "[s]tate family and family-property law must do 'major damage' to 'clear and substantial' federal interests before the Supremacy Clause will demand that state law be overridden." Hisquierdo, 439 U.S., at 581, 99 S.Ct., at 808, with references to United States v. Yazell, 382 U.S. 341, 352, 86 S.Ct. 500, 506, 15 L.Ed.2d 404 (1966). See also Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 522, 101 S.Ct. 1895, 1905, 68 L.Ed.2d 402 (1981). In Hisquierdo, we concluded that California's application of community property principles to Railroad Retirement Act benefits worked such an injury to federal interests. The "critical terms" of the federal statute relied upon in reaching that conclusion included provisions establishing "a specified beneficiary protected by a flat prohibition against attachment and anticipation," see 45 U.S.C. § 231m, and a limited community property concept that terminated upon divorce, see 45 U.S.C. § 231d. 439 U.S., at 582-585, 99 S.Ct., at 808-810. Appellee argues that no such provisions are to be found in the statute presently under consideration, and that therefore Hisquierdo is inapposite. But Hisquierdo did not hold that only the particular statutory terms there considered would justify a finding of pre-emption; rather, it held that "[t]he pertinent questions are whether the right as asserted conflicts with the express terms of federal law and whether its consequences sufficiently injure the objectives of the federal program to require nonrecognition." Id., at 583, 99 S.Ct., at 809. It is to that twofold inquiry that we now turn.
A.
19
Appellant argues that California's application of community property concepts to military retired pay conflicts with federal law in two distinct ways. He contends, first, that the California court's conclusion that retired pay is "awarded in return for services previously rendered," see Fithian, 10 Cal.3d, at 604, 517 P.2d, at 457, ignores clear federal law to the contrary. The community property division of military retired pay rests on the premise that that pay, like a typical pension, represents deferred compensation for services performed during the marriage. Id., at 596, 517 P.2d, at 451. But, appellant asserts, military retired pay in fact is current compensation for reduced, but currently rendered, services; accordingly, even under California law, that pay may not be treated as community property to the extent that it is earned after the dissolution of the marital community, since the earnings of a spouse while living "separate and apart" are separate property. Cal.Civ.Code Ann. §§ 5118, 5119 (West 1970 and Supp.1981).
20
Appellant correctly notes that military retired pay differs in some significant respects from a typical pension or retirement plan. The retired officer remains a member of the Army, see United States v. Tyler, 105 U.S. 244, 26 L.Ed. 985 (1882),13 and continues to be subject to the Uniform Code of Military Justice, see 10 U.S.C. § 802(4). See also Hooper v. United States, 164 Ct.Cl. 151, 326 F.2d 982, cert. denied, 377 U.S. 977, 84 S.Ct. 1882, 12 L.Ed.2d 746 (1964). In addition, he may forfeit all or part of his retired pay if he engages in certain activities.14 Finally, the retired officer remains subject to recall to active duty by the Secretary of the Army "at any time." Pub. L. 96-513, § 106, 94 Stat. 2868. These factors have led several courts, including this one, to conclude that military retired pay is reduced compensation for reduced current services. In United States v. Tyler, 105 U.S., at 245, the Court stated that retired pay is "compensation . . . continued at a reduced rate, and the connection is continued, with a retirement from active service only."15
21
Having said all this, we need not decide today whether federal law prohibits a State from characterizing retired pay as deferred compensation, since we agree with appellant's alternative argument that the application of community property law conflicts with the federal military retirement scheme regardless of whether retired pay is defined as current or as deferred compensation.16 The statutory language is straightforward:S "A member of the Army retired under this chapter is entitled to retired pay . . . ." 10 U.S.C. § 3929. In Hisquierdo, 439 U.S., at 584, 99 S.Ct., at 809, we emphasized that under the Railroad Retirement Act a spouse of a retired railroad worker was entitled to a separate annuity that terminated upon divorce, see 45 U.S.C. § 231d(c)(3); in contrast, the military retirement system confers no entitlement to retired pay upon the retired service member's spouse. Thus, unlike the Railroad Retirement Act, the military retirement system does not embody even a limited "community property concept." Indeed, Congress has explicitly stated: "Historically, military retired pay has been apersonal entitlement payable to the retired member himself as long as he lives." S.Rep.No.1480, 90th Cong., 2d Sess., 6 (1968) (emphasis added).
22
Appellee argues that Congress' use of the term "personal entitlement" in this context signifies only that retired pay ceases upon the death of the service member. But several features of the statutory schemes governing military pay demonstrate that Congress did not use the term in so limited a fashion. First, the service member may designate a beneficiary to receive any unpaid arrearages in retired pay upon his death. 10 U.S.C. § 2771.17 The service member is free to designate someone other than his spouse or ex-spouse as the beneficiary; further, the statute expressly provides that "[a] payment under this section bars recovery by any other person of the amount paid." § 2771(d). In Wissner v. Wissner, 338 U.S. 655, 70 S.Ct. 398, 94 L.Ed. 424 (1950), this Court considered an analogous statutory scheme. Under the National Service Life Insurance Act, an insured service member had the right to designate the beneficiary of his policy. Id., at 658, 94 S.Ct., at 399. Wissner held that California could not award a service member's widow half the proceeds of a life insurance policy, even though the source of the premiums—the member's Army pay—was characterized as community property under California law. The Court reserved the question whether California is "entitled to call army pay community property," id., at 657, n. 2, 94 S.Ct., at 399, since it found that Congress had "spoken with force and clarity in directing that the proceeds belong to the named beneficiary and no other." Id., at 658, 94 S.Ct., at 400. In the present context, Congress has stated with "force and clarity" that a beneficiary under § 2771 claims an interest in the retired pay itself, not simply in proceeds from a policy purchased with that pay. One commentator has noted: "If retired pay were community property, the retiree could not thus summarily deprive his wife of her interest in the arrearage." Goldberg, Is Armed Services Retired Pay Really Community Property?, 48 Cal.Bar J. 12, 17 (1973).
23
Second, the language, structure, and legislative history of the RSFPP and the SBP also demonstrate that retired pay is a "personal entitlement." While retired pay ceases upon the death of the service member, the RSFPP and the SBP allow the service member to reduce his or her retired pay in order to provide an annuity for the surviving spouse or children. Under both plans, however, the service member is free to elect to provide no annuity at all, or to provide an annuity payable only to the surviving children, and not to the spouse. See 10 U.S.C. § 1434 (1976 ed. and Supp. IV) (RSFPP); § 1450 (1976 ed. and Supp. IV) (SBP). Here again, it is clear that if retired pay were community property, the service member could not so deprive the spouse of his or her interest in the property.18 But we need not rely on this implicit conflict alone, for both the language of the statutes19 and their legislative history make it clear that the decision whether to leave an annuity is the service member's decision alone because retired pay is his or her personal entitlement. It has been stated in Congress that "[t]he rights in retirement pay accrue to the retiree and, ultimately, the decision is his as to whether or not to leave part of that retirement pay as an annuity to his survivors." H.R.Rep.No.92-481, p. 9 (1971).20 California's community property division of retired pay is simply inconsistent with this explicit expression of congressional intent that retired pay accrue to the retiree.
24
Moreover, such a division would have the anomalous effect of placing an ex-spouse in a better position than that of a widower or a widow under the RSFPP and the SBP.21 Appellee argues that "Congress' concern for the welfare of soldiers' widows sheds little light on Congress' attitude toward the community treatment of retirement benefits," quoting Fithian, 10 Cal.3d, at 600, 111 Cal.Rptr., at 374, 517 P.2d, at 454. But this argument fails to recognize that Congress deliberately has chosen to favor the widower or widow over the ex-spouse. An ex-spouse is not an eligible beneficiary of an annuity under either plan. 10 U.S.C. § 1434(a) (RSFPP); §§ 1447(3) and 1450(a) (SBP). In addition, under the RSFPP, deductions from retired pay for a spouse's annuity automatically cease upon divorce, § 1434(c), so as "[t]o safeguard the participants' future retired pay when . . . divorce occurs . . . ." S.Rep.No.1480, 90th Cong., 2d Sess., 13 (1968), U.S.Code Cong. & Admin.News 1968, pp. 3294, 3307. While the SBP does not expressly provide that annuity deductions cease upon divorce, the legislative history indicates that Congress' policy remained unchanged. The SBP, which was referred to as the "widow's equity bill," 118 Cong.Rec. 29811 (1972) (statement of Sen. Beall), was enacted because of Congress' concern over the number of widows left without support through low participation in the RSFPP, not out of concern for ex-spouses. See H.R.Rep.No.92-481, pp. 4-5 (1971); S.Rep.No.92-1089, p. 11 (1972).
25
Third, and finally, it is clear that Congress intended that military retired pay "actually reach the beneficiary." See Hisquierdo, 439 U.S., at 584, 99 S.Ct., at 809. Retired pay cannot be attached to satisfy a property settlement incident to the dissolution of a marriage.22 In enacting the SBP, Congress rejected a provision in the House bill, H.R.10670, that would have allowed attachment of up to 50% of military retired pay to comply with a court order in favor of a spouse, former spouse, or child. See H.R.Rep.No.92-481, at 1; S.Rep.No.92-1089, at 25. The House Report accompanying H.R.10670 noted that under Buchanan v. Alexander, 4 How. 20, 11 L.Ed. 857 (1845), and Applegate v. Applegate, 39 F.Supp. 887 (ED Va.1941), military pay could not be attached so long as it was in the Government's hands;23 thus, this clause of H.R.10670 represented a "drastic departure" from current law, but one that the House Committee on Armed Services believed to be necessitated by the difficulty of enforcing support orders. H.R.Rep.No.92-481, at 17-18. Although this provision passed the House, it was not included in the Senate version of the bill. See S.Rep.No.92-1089, at 25. Thereafter, the House acceded to the Senate's view that the attachment provision would unfairly "single out military retirees for a form of enforcement of court orders imposed on no other employees or retired employees of the Federal Government." 118 Cong.Rec. 30151 (1972) (remarks of Rep. Pike); S.Rep.No.921089, at 25. Instead, Congress determined that the problem of the attachment of military retired pay should be considered in the context of "legislation that might require all Federal pays to be subject to attachment." Ibid.; 118 Cong.Rec. 30151 (1972) (remarks of Rep. Pike).
26
Subsequently, comprehensive legislation was enacted. In 1975, Congress amended the Social Security Act to provide that all federal benefits, including those payable to members of the Armed Services, may be subject to legal process to enforce child support or alimony obligations. Pub.L. 93-647, § 101(a), 88 Stat. 2357, 42 U.S.C. § 659. In 1977, however, Congress added a new definitional section (§ 462(c)) providing that the term "alimony" in § 659(a) "does not include any payment or transfer of property . . . in compliance with any community property settlement, equitable distribution of property, or other division of property between spouses or former spouses." Pub.L. 95-30, § 501(d), 91 Stat. 159, 42 U.S.C. § 662(c) (1976 ed., Supp. IV). As we noted in Hisquierdo, it is "logical to conclude that Congress, in adopting § 462(c), thought that a family's need for support could justify garnishment, even though it deflected other federal benefits from their intended goals, but that community property claims, which are not based on need, could not do so." 439 U.S., at 587, 99 S.Ct., at 811.
27
Hisquierdo also pointed out that Congress might conclude that this distinction between support and community property claims is "undesirable." Id., at 590, 99 S.Ct., at 813. Indeed, Congress recently enacted legislation that requires that Civil Service retirement benefits be paid to an ex-spouse to the extent provided for in "the terms of any court order or court-approved property settlement agreement incident to any court decree of divorce, annulment, or legal separation." Pub.L. 95-366, § 1(a), 92 Stat. 600, 5 U.S.C. § 8345(j)(1) (1976 ed., Supp. IV). In an even more extreme recent step, Congress amended the Foreign Service retirement legislation to provide that, as a matter of federal law, an ex-spouse is entitled to a pro rata share of Foreign Service retirement benefits.24 Thus, the Civil Service amendments require the United States to recognize the community property division of Civil Service retirement benefits by a state court, while the Foreign Service amendments establish a limited federal community property concept. Significantly, however, while similar legislation affecting military retired pay was introduced in the 96th Congress, none of those bills was reported out of committee.25 Thus, in striking contrast to its amendment of the Foreign Service and Civil Service retirement systems, Congress has neither authorized nor required the community property division of military retired pay. On the contrary, that pay continues to be the personal entitlement of the retiree.
B
28
We conclude, therefore, that there is a conflict between the terms of the federal retirement statutes and the community property right asserted by appellee here. But "[a] mere conflict in words is not sufficient"; the question remains whether the "consequences [of that community property right] sufficiently injure the objectives of the federal program to require nonrecognition." Hisquierdo, 439 U.S., at 581-583, 99 S.Ct., at 808-809. This inquiry, however, need be only a brief one, for it is manifest that the application of community property principles to military retired pay threatens grave harm to "clear and substantial" federal interests. See United States v. Yazell, 382 U.S., at 352, 86 S.Ct., at 507. Under the Constitution, Congress has the power "[t]o raise and support Armies," "[t]o provide and maintain a Navy," and "[t]o makes Rules for the Government and Regulation of the land and naval Forces." U.S.Const., Art. I, § 8, cls. 12, 13, and 14. See generally Rostker v. Goldberg, 453 U.S. 57, 59, 101 S.Ct. 2646, 2649, 69 L.Ed.2d 478. Pursuant to this grant of authority, Congress has enacted a military retirement system designed to accomplish two major goals: to provide for the retired service member, and to meet the personnel management needs of the active military forces. The community property division of retired pay has the potential to frustrate each of these objectives.
29
In the first place, the community property interest appellee seeks "promises to diminish that portion of the benefit Congress has said should go to the retired [service member] alone." See Hisquierdo, 439 U.S., at 590, 99 S.Ct., at 813. State courts are not free to reduce the amounts that Congress has determined are necessary for the retired member. Furthermore, the community property division of retired pay may disrupt the carefully balanced scheme Congress has devised to encourage a service member to set aside a portion of his or her retired pay as an annuity for a surviving spouse or dependent children. By diminishing the amount available to the retiree, a community property division makes it less likely that the retired service member will choose to reduce his or her retired pay still further by purchasing an annuity for the surviving spouse, if any, or children. In McCune v. Essig, 199 U.S. 382, 26 S.Ct. 78, 50 L.Ed. 237 (1905), the Court held that federal law, which permitted a widow to patent federal land entered by her husband, prevailed over the interest in the patent asserted by the daughter under state inheritance law; the Court noted that the daughter's contention "reverses the order of the statute and gives the children an interest paramount to that of the widow through the laws of the State." Id., at 389, 26 S.Ct., at 80. So here, the right appellee asserts "reverses the order of the statute" by giving the ex-spouse an interest paramount to that of the surviving spouse and children of the service member; indeed, at least one court (in a noncommunity property State) has gone so far as to hold that the heirs of the ex-spouse may even inherit her interest in military retired pay. See In re Miller, Mont., 609 P.2d 1185 (1980), cert. pending sub nom. Miller v. Miller, No. 80-291. Clearly, "[t]he law of the State is not competent to do this." McCune v. Essig, 199 U.S., at 389, 26 S.Ct., at 80.
30
The potential for disruption of military personnel management is equally clear. As has been noted above, the military retirement system is designed to serve as an inducement for enlistment and re-enlistment, to create an orderly career path, and to ensure "youthful and vigorous" military forces.26 While conceding that there is a substantial interest in attracting and retaining personnel for the military forces, appellee argues that this interest will not be impaired by allowing a State to apply its community property laws to retired military personnel in the same manner that it applies those laws to civilians. Yet this argument ignores two essential characteristics of military service: the military forces are national in operation; and their members, unlike civilian employees, cf. Hisquierdo, are not free to choose their place of residence. Appellant, for instance, served tours of duty in four States and the District of Columbia. The value of retired pay as an inducement for enlistment or re-enlistment is obviously diminished to the extent that the service member recognizes that he or she may be involuntarily transferred to a State that will divide that pay upon divorce. In Free v. Bland, 369 U.S. 663, 82 S.Ct. 1089, 8 L.Ed.2d 180 (1962), the Court held that state community property law could not override the survivorship provision of a federal savings bond, since it was "[o]ne of the inducements selected," id., at 669, 82 S.Ct., at 1093, to make purchase of such bonds attractive; similarly, retired pay is one of the inducements selected to make military service attractive, and the application of state community property law thus "interfere[s] directly with a legitimate exercise of the power of the Federal Government." Ibid.
31
The interference with the goals of encouraging orderly promotion and a youthful military is no less direct. Here, as in the Railroad Retirement Act context, "Congress has fixed an amount thought appropriate to support an employee's old age and to encourage the employee to retire." See Hisquierdo, 439 U.S., at 585, 99 S.Ct., at 810. But the reduction of retired pay by a community property award not only discourages retirement by reducing the retired pay available to the service member, but gives him a positive incentive to keep working since current income after divorce is not divisible as community property. See Cal.Civ.Code Ann. §§ 5118, 5119 (West 1970 and Supp.1981). Congress has determined that a youthful military is essential to the national defense; it is not for States to interfere with that goal by lessening the incentive to retire created by the military retirement system.
IV
32
We recognize that the plight of an ex-spouse of a retired service member is often a serious one. See Hearing on H.R.2178, H.R.3677, and H.R.6270 before the Military Compensation Subcommittee of the House Committee on Armed Services, 96th Cong., 2d Sess. (1980). That plight may be mitigated to some extent by the ex-spouse's right to claim Social Security benefits, cf. Hisquierdo, 439 U.S., at 590, 99 S.Ct., at 812, and to garnish military retired pay for the purposes of support. Nonetheless, Congress may well decide, as it has in the Civil Service and Foreign Service contexts, that more protection should be afforded a former spouse of a retired service member. This decision, however, is for Congress alone. We very recently have re-emphasized that in no area has the Court accorded Congress greater deference than in the conduct and control of military affairs. See Rostker v. Goldberg, 453 U.S., at 64-65, 101 S.Ct., at 2651. Thus, the conclusion that we reached in Hisquierdo follows a fortiori here: Congress has weighed the matter, and "[i]t is not the province of state courts to strike a balance different from the one Congress has struck." 439 U.S., at 590, 99 S.Ct., at 813.
33
The judgment of the California Court of Appeal is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
34
It is so ordered.
35
Justice REHNQUIST, with whom Justice BRENNAN and Justice STEWART join, dissenting.
36
The Court's opinion is curious in at least two salient respects. For all its purported reliance on Hisquierdo v. Hisquierdo, 439 U.S. 572, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979), the Court fails either to quote or cite the test for pre-emption which Hisquierdo established. In that case the Court began its analysis, after noting that States "lay on the guiding hand" in marriage law questions, by stating:
37
"On the rare occasion where state family law has come into conflict with the federal statute, this Court has limited review under the Supremacy Clause to a determination whether Congress has 'positively required by direct enactment' that state law be pre-empted. Wetmore v. Markoe, 196 U.S. 68, 77 [25 S.Ct. 172, 175, 49 L.Ed. 390] (1904)." Id., at 581, 99 S.Ct., at 808.
38
The reason for the omission of this seemingly critical sentence from the Court's opinion today is of course quite clear: the Court cannot, even to its satisfaction, plausibly maintain that Congress has "positively required by direct enactment" that California's community property law be pre-empted by the provisions governing military retired pay. The most that the Court can advance are vague implications from tangentially related enactments or Congress' failure to act. The test announced in Hisquierdo established that this was not enough and so the critical language from that case must be swept under the rug.
39
The other curious aspect of the Court's opinion, related to the first, is the diverting analysis it provides of laws and legislative history having little if anything to do with the case at bar. The opinion, for example, analyzes at great length Congress' actions concerning the attachability of federal pay to enforce alimony and child support awards, ante, at 228-230. However interesting this subject might be, this case concerns community property rights, which are quite distinct from rights to alimony or child support, and there has in fact been no effort by appellee to attach appellant's retired pay. To take another example, we learn all about the provisions governing Foreign Service and Civil Service retirement pay, ante, at 230-232. Whatever may be said of these provisions, it cannot be said that they are "direct enactments" on the question whether military retired pay may be treated as community property. The conclusion is inescapable that the Court has no solid support for the conclusion it reaches—certainly no support of the sort required by Hisquierdo—and accordingly I dissent.
40
* Both family law and property law have been recognized as matters of peculiarly local concern and therefore governed by state and not federal law. In re Burrus, 136 U.S. 586, 593-594, 10 S.Ct. 850, 852-853, 34 L.Ed. 500 (1890); United States v. Yazell, 382 U.S. 341, 349, 353, 86 S.Ct. 500, 505, 507, 15 L.Ed.2d 404 (1966). Questions concerning the appropriate disposition of property upon the dissolution of marriage, therefore, such as the question in this case, are particularly within the control of the States, and the authority of the States should not be displaced except pursuant to the clearest direction from Congress. Only in five previous cases has this Court found pre-emption of community property law. An examination of those cases clearly establishes that there is no precedent supporting admission of this case to the exclusive club.
41
The first such case was McCune v. Essig, 199 U.S. 382, 26 S.Ct. 78, 50 L.Ed. 237 (1905). McCune's father, a homesteader, died before completing the necessary conditions to obtain title to the land. McCune claimed that under the community property laws of the State of Washington she was entitled to a half interest in her father's land. Congress in the Homestead Act, however, had "positively required by direct enactment," Hisquierdo, supra, at 581, 99 S.Ct., at 808; that in the case of a homesteader's death the widow would succeed to the homesteader's interest in the land. Indeed, the Act set forth an explicit schedule of succession which specifically provided for a homesteader's daughter such as McCune. She succeeded to rights and fee under the statute only in the case of the death of both her father and mother. In the words of Justice McKenna:
42
"It requires an exercise of ingenuity to establish uncertainty in these provisions. . . . The words of the statute are clear, and express who in turn shall be its beneficiaries. The contention of appellant reverses the order of the statute and gives the children an interest paramount to that of the widow through the laws of the state." 199 U.S., at 389, 26 S.Ct., at 80.
43
There is, of course, nothing remotely approaching this situation in the case at bar. Congress has not enacted a schedule governing rights of ex-spouses to military retired pay and appellee's claim does not go against any such schedule.1
44
The next case from this Court finding pre-emption of community property law did not arise until 45 years later. In Wissner v. Wissner, 338 U.S. 655, 70 S.Ct. 398, 94 L.Ed. 424 (1950), the deceased serviceman's estranged wife claimed she was entitled to one-half of the proceeds of a National Service Life Insurance policy, the premiums of which were paid out of the serviceman's pay accrued while he was married, even though decedent had designated his parents as the beneficiaries. The Act in question specifically provided that the serviceman shall have " 'the right to designate the beneficiary or beneficiaries of the insurance [within a designated class], . . . and shall . . . at all times have the right to change the beneficiary or beneficiaries.' " Id., at 658, 70 S.Ct., at 400 (quoting 38 U.S.C. § 802(g) (1946 ed.)). As the Court interpreted this, "Congress has spoken with force and clarity in directing that the proceeds belonged to the named beneficiary and no other." 338 U.S., at 658, 70 S.Ct., at 400. That is not at all the case here. Congress has provided that the serviceman receive retired pay in 10 U.S.C. § 3929, to be sure, but that is simply the general provision permitting payment—it hardly evinces the "deliberate purpose of Congress" concerning the question before us, as was the case with the designation of a life insurance policy beneficiary in Wissner. 338 U.S., at 659, 70 S.Ct., at 400.
45
The Court in Wissner also noted that the statute provided that "[p]ayments to the named beneficiary 'shall be exempt from the claims of creditors, and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary.' " Ibid. (quoting 38 U.S.C. § 816 (1946 ed.)). The wife's claim was thus in "flat conflict" with the terms of the statute. 338 U.S., at 659, 70 S.Ct., at 400. This forceful and unambiguous language protecting the rights of the designated beneficiary has no parallel so far as military retired pay is concerned.
46
It is important to recognize that the Court's analysis, while purporting to rely on Wissner, actually is contrary to the analysis in that case. As will be explored in greater detail below, the Court focuses on two provisions in concluding that military retired pay cannot be treated as community property: the provision permitting a serviceman to designate who shall receive any arrearages in pay after his death, and the provision permitting a retired serviceman to fund an annuity for someone other than the ex-spouse out of retired pay. The Court's theory is that since the serviceman can dispose of part of the retired pay without participation of the ex-spouse—either the arrearages or the premiums to fund the annuity—the retired pay cannot be treated as community property. This, however, is precisely the analysis the Wissner court declined to adopt in concluding that the proceeds of an insurance policy, purchased with military pay, could not be treated as community property. The Wissner court simply concluded that the wife could not pursue her community property claim to the proceeds, even though purchased with community property funds. This is comparable to ruling in this case that appellee cannot obtain half of any annuity funded out of retired pay pursuant to the statute, or half of the arrearages, when the serviceman has designated someone else to receive them. The Wissner court specifically left open the question whether the whole from which the premiums were taken—the military pay—could be treated as community property. Id., at 657, n. 2, 70 S.Ct., at 399. That is, however, the analytic jump the Court takes today, in ruling that retired pay cannot be treated as community property simply because parts of it, or proceeds of parts of it—arrearages and the annuity—cannot be.2
47
The next two cases, Free v. Bland, 369 U.S. 663, 82 S.Ct. 1089, 8 L.Ed.2d 180 (1962), and Yiatchos v. Yiatchos, 376 U.S. 306, 84 S.Ct. 742, 11 L.Ed.2d 724 (1964), involved the same provisions. Plaintiffs sought community property rights in United States Savings Bonds, even though duly issued Treasury Regulations provided that designated co-owners would, upon the death of the other co-owner, be "the sole and absolute owner" of the bonds. No such language is involved in this case.
48
The most recent case is, of course, Hisquierdo, in which the Court held that Congress in the Railroad Retirement Act pre-empted community property laws so that a railroad worker's pension could not be treated as community property. It bears noting that this case is not Hisquierdo revisited. In Hisquierdo there was a specific statutory provision which satisfied the requirement that Congress " 'positively requir[e] by direct enactment' that state law be pre-empted." 439 U.S., at 581, 99 S.Ct., at 808 (quoting Wetmore v. Markoe, 196 U.S. 68, 77, 25 S.Ct. 172, 175, 49 L.Ed. 390 (1904)). Section 14 of the Railroad Retirement Act of 1974, carrying forward the provisions of § 12 of the Act of 1937, provided:
49
"Notwithstanding any other law of the United States, or of any State, territory, or the District of Columbia, no annuity or supplemental annuity shall be assignable or be subject to any tax or to garnishment, attachment, or other legal process under any circumstances whatsoever, nor shall the payment thereof be anticipated." 45 U.S.C. § 231m.
50
The Hisquierdo Court viewed this provision as playing "a most important role in the statutory scheme," 439 U.S., at 583-584, 99 S.Ct., at 809-810. The Court stressed the language "[n]otwithstanding any other law . . . of any State," id., at 584, 99 S.Ct., at 810, and noted that § 14 "pre-empts all state law that stands in its way." Ibid.
51
With all the emphasis placed on § 14 in Hisquierdo, one would have expected the counterpart in the military retired pay scheme to figure prominently in the Court's opinion today. There is, however, nothing approaching § 14 in the military retired pay scheme. The closest analogue, 37 U.S.C. § 701(a), is buried in footnote 22 of the Court's opinion. It simply provides:
52
"Under regulations prescribed by the Secretary of the Army or the Secretary of the Air Force, as the case may be, a commissioned officer of the Army or the Air Force may transfer or assign his pay account, when due and payable."
53
The contrast with the provision in Hisquierdo is stark. Section 14 forbids assignment; § 701(a) permits it. Section 14 contains a "flat prohibition against attachment and anticipation," 439 U.S., at 582, 99 S.Ct., at 809; all that can be gleaned from § 701(a) is a negative implication prohibiting voluntary assignments prior to the time pay is due and payable. Such a limit is of course a far cry from the Hisquierdo provision requiring that the retired pay may not be subject to "legal process under any circumstances whatsoever" and that it shall not "be anticipated." It is no wonder § 701(a) is buried in a footnote in the Court's opinion.3
54
In addition to § 14 the Hisquierdo Court also relied on the fact the the Railroad Retirement Act provided a separate spousal entitlement, "embod[ying] a community concept to an extent." 439 U.S., at 584, 99 S.Ct., at 810. Under the Railroad Retirement Act, 45 U.S.C. § 231d(c), a spouse is entitled to a separate benefit, which terminates upon divorce. § 231d(c)(3). Congress explicitly considered extending the spousal benefit to a divorced spouse but declined to do so. 439 U.S., at 585, 99 S.Ct., at 810. The Hisquierdo Court found support in this not to permit California to expand the community property concept beyond its limited use by Congress in the Act. No similar separate spousal entitlement, terminable on divorce, exists in the statutes governing military retired pay. The "this far and no further" implication in Hisquierdo, therefore, cannot be made here.
II
55
The foregoing demonstrates that today's decision is not simply a logical extension of prior precedent. That does not, to be sure, mean that it is necessarily wrong—there has to be a first time for everything. But examination of the analysis in the Court's opinion convinces me that it is both unprecedented and wrong.
56
In its analysis the Court contrasts the statute involved in Hisquierdo, noting that there spouses received an annuity which terminated upon divorce. Here there is no such provision. As the Court states its conclusion: "Thus, unlike the Railroad Retirement Act, the military retirement system does not embody even a limited 'community property concept.' " Ante, at 224. This analysis, however, is the exact opposite of the analysis employed in Hisquierdo. As we have seen, there the Court's point was that Congress had provided some community property rights and made a conscious decision to provide no more :
57
"Congress carefully targeted the benefits created by the Railroad Retirement Act. It even embodied a community concept to an extent. . . . Congress purposefully abandoned that theory, however, in allocating benefits upon absolute divorce. . . . The choice was deliberate." 439 U.S., at 584-585, 99 S.Ct., at 810.
58
Now we are told that pre-emption of community property law is suggested in this case because there is no community property concept at all in the statutory scheme. Under Hisquierdo, this absence would have been thought to suggest that there was no pre-emption, since the argument could not be made, as it was in Hisquierdo, that Congress had addressed the question and drawn the line. See In re Milhan, 27 Cal.3d 765, 775-776, 166 Cal.Rptr. 533, 538, 613 P.2d 812, 817 (1980), cert. pending sub nom. Milhan v. Milhan, No. 80-578. I am not certain whether the analysis was wrong in Hisquierdo or in this case, but it is clear that both cannot be correct. One is led to inquire where this moving target will next appear.
59
The Court also relies on "several features of the statutory scheme" as evidence that Congress intended military retired pay to be the "personal entitlement" of the serviceman. The Court first focuses on 10 U.S.C. § 2771, which permits a serviceman to select the beneficiary of unpaid arrearages. As we have seen, supra, at 240-241, the Court's reliance on Wissner in this context establishes, at most, only that unpaid arrearages cannot be treated as community property, not that retired pay in general cannot be. A provision permitting a serviceman to tell the Government where to mail his last paycheck after his death hardly supports the inference of a congressional intent to pre-empt state law governing disposition of military retired pay in general.
60
The Court next relies on the statutory provisions permitting a retired serviceman to fund an annuity for his potential widow and/or dependent children out of retired pay. Even granting the Court its premise that the annuity is not subject to community property treatment, the conclusion that military retired pay is not subject to community property treatment simply does not follow. If California's community property law conflicts with permitting a retired serviceman to fund an annuity out of retired pay, then by all means override California's law—to the extent of the conflict. Even if Congress did intentionally intrude on community property law to the extent of permitting a serviceman to fund an annuity, that hardly supports an intent to intrude on all community property law. Nothing in the Court's analysis shows any reason why appellee should not be entitled to one-half of appellant's retired pay less amounts he uses to fund an annuity, should he decide to do so.
61
The Court resists the recognition of any rights to retired pay in the ex-spouse because of a policy judgment that it would be "anomalous" to place the ex-spouse in a better position than a widow receiving benefits under an annuity. Ante, at 227. The Court, however, is comparing apples and oranges in two respects. The ex-spouse's rights are to retired pay, and cease when the serviceman dies. The widow's rights are to an annuity which begins when the serviceman dies. The fact that Congress "deliberately has chosen to favor the widower or widow over the ex-spouse" so far as the annuity is concerned, ante, at 228, simply has no relevance to the rights of the ex-spouse to the retired pay itself. Second, the ex-spouse has contributed to the earning of the retired pay to the same degree as the serviceman, according to state law. The widow may have done nothing at all to "earn" her annuity, as would be the case, for example, if appellant remarried and funded an annuity for his widow out of retired pay. In view of this, I see nothing "anomalous" in providing the ex-spouse with rights in retired pay. In any event, such policy questions are for Congress to decide, not the Court, and the Court fails in its efforts to show Congress has found California's system anomalous.
62
The third argument advanced by the Court is the weakest of all: the Court argues that an ex-spouse in a community property State cannot obtain half of the military retired pay, by attachment or otherwise, because she can obtain alimony and child support by attachment. This is pre-emption by negative implication—not the "positive requirement" and "direct enactment" which Hisquierdo indicated were required. And since appellee does not seek to attach anything, even the negative implication is not directly relevant.
63
The Court also stresses the recognition of community property rights in varying degrees in the Foreign Service and Civil Service laws. Again, this hardly meets the Hisquierdo test. Both the Foreign Service and Civil Service laws are quite different from the military retired pay laws. The former contain strong anti-attachment provisions like § 14 of the Railroad Retirement Act considered in Hisquierdo, see 5 U.S.C. § 8346; 22 U.S.C. § 1104, so Congress could well have thought explicit legislation was necessary in these areas.
III
64
The very most that the Court establishes, therefore, is that the provisions governing arrearages and annuities pre-empt California's community property law. There is no support for the leap from this narrow pre-emption to the conclusion that the community property laws are pre-empted so far as military retired pay in general is concerned. Such a jump is wholly inconsistent with this Court's previous pronouncements concerning a State's power to determine laws concerning marriage and property in the absence of Congress' "direct enactment" to the contrary, and I therefore dissent.
1
See Rombauer, Marital Status and Eligibility for Federal Statutory Income Benefits: A Historical Survey, 52 Wash L.Rev. 227, 228-229 (1977). The current military disability provisions are 10 U.S.C. § 1201 et seq. (1976 ed. and Supp. IV).
2
See Cong.Globe, 37th Cong., 1st Sess., 16 (1861) (remarks of Sen. Grimes) ("some of the commanders of regiments in the regular service are utterly incapacitated for the performance of their duty, and they ought to be retired upon some terms, and efficient men placed in their stead"); id., at 159 (remarks of Sen. Wilson) ("We have colonels, lieutenant colonels, and majors in the Army, old men, worn out by exposure in the service, who cannot perform their duties; men who ought to be honorably retired, and receive the compensation provided for in this measure").
3
For a survey of subsequent military nondisability legislation, see U.S. Dept. of Defense, Military Compensation Background Papers, Third Quadrennial Review of Military Compensation 183-202 (1976); Military Retirement Hearings, at 12-13.
4
For an overview of the disability and reserve retirement systems, see Subcommittee on Investigations, House Committee on Post Office and Civil Service, Dual Compensation Paid to Retired Uniformed Services' Personnel in Federal Civilian Positions, 95th Cong., 2d Sess., 18-20 (Comm.Print 1978).
5
The voluntary nondisability retirement systems of the various services are codified as follows: 10 U.S.C., ch. 367, § 3911 et seq. (1976 ed. and Supp. IV) (Army); ch. 571, § 6321 et seq. (1976 ed. and Supp. IV) (Navy and Marine Corps); ch. 867, § 8911 et seq. (Air Force). The nondisability retirement system was recently amended by the Defense Officer Personnel Management Act, Pub. L. 96-513, 94 Stat. 2835. Under § 111 of that Act, id., at 2875, 10 U.S.C. § 1251 (1976 ed., Supp. IV), regular commissioned officers in all the military services are required, with some exceptions, to retire at age 62; the Act also amended various provisions dealing with involuntary nondisability retirement for length of service. The Act, however, did not affect the particular voluntary nondisability retirement provisions at issue here.
6
An enlisted member of the Army may be retired upon his request after 30 years of service. 10 U.S.C § 3917. See also § 3914, as amended by the Military Personnel and Compensation Amendments of 1980, Pub. L. 96-343, § 9(a)(1), 94 Stat. 1128, 10 U.S.C. § 3914 (1976 ed., Supp. IV) (voluntary retirement after 20 years followed by service in Army Reserve). A retired enlisted member is also entitled to retired pay. 10 U.S.C. §§ 3929 and 3991.
7
The amount of retired pay is calculated according to formula: (basic pay of the retired grade of the member) x (21/2%) x (the number of years of creditable service). Thus, a retiree is eligible for at least 50% (21/2% x 20 years of service) of his or her basic pay, which does not include special pay and allowances. There is, however, an upper limit of 75% of basic pay—the percentage attained upon retirement after completion of 30 years of service (30 years x 21/2%)—regardless of the number of years actually served. See 10 U.S.C. § 3991. See generally Women and Retirement, at 16. The amount of retired pay is adjusted for any increase in the Consumer Price Index. § 1401a.
Since the initiation of this suit, § 3991 has been amended twice. See the Department of Defense Authorization Act, 1981, Pub. L. 96-342, § 813(c), 94 Stat. 1104, and the Defense Officer Personnel Management Act, Pub. L. 96-513, § 502(21), 94 Stat. 2910. Neither amendment has any bearing here.
Under the Internal Revenue Code of 1954, retired pay is taxable as ordinary income when received. 26 U.S.C. § 61(a)(11); 26 CFR § 1.61-11 (1980).
8
At the time the interlocutory judgment of dissolution was entered, appellant had not begun to receive retired pay, since he had not yet completed 20 years of active service. Under California law, however, "pension rights" may be divided as community property even if they have not "vested." See In re Brown, 15 Cal.3d 838, 126 Cal.Rptr. 633, 544 P.2d 561 (1976). A California trial court may divide the present value of such rights, which value must take into account the possibility that death or termination of employment may destroy them before they vest. Id., at 848, 126 Cal.Rptr., at 639, 544 P.2d, at 567. Alternatively, the court may maintain continuing jurisdiction, and award each spouse an appropriate portion of each pension payment as it is made. Ibid. The trial court here apparently elected the latter alternative.
9
The Court of Appeal also held that since appellant had invoked the jurisdiction of the California courts over both his marital and property rights he was estopped from arguing that California community property law did not apply to him because he was an Oregon domiciliary. App. to Juris. Statement 50-54. Appellant has not renewed this argument before us.
10
In Fithian, the Supreme Court of California concluded that there was "no evidence that the application of California community property law interferes in any way with the administration or goals of the federal military retirement pay system. . . ." 10 Cal.3d, at 604, 111 Cal.Rptr., at 377, 517 P.2d, at 457.
11
In Gorman, the California Court of Appeal held that Hisquierdo was based on the unique history and language of the Railroad Retirement Act of 1974; the court therefore considered itself bound to follow Fithian "pending further consideration of the issue by the California Supreme Court." 90 Cal.App.3d, at 462, 153 Cal.Rptr., at 483. The California Supreme Court has since reaffirmed Fithian in In re Milhan, 27 Cal.3d 765, 166 Cal.Rptr. 533, 613 P.2d 812 (1980), cert. pending sub nom. Milhan v. Milhan, No. 80-578.
12
Appellee contends that this is not a proper appeal because appellant did not call the constitutionality of any statute into question in the California courts. Our review of the record, however, leads us to conclude otherwise. The Court of Appeal stated that appellant "also contends that the federal scheme of military retirement benefits pre-empts all state community property laws with respect thereto, and that California courts are accordingly precluded by the Supremacy Clause from dividing such benefits . . . ." App. to Juris. Statement 57. The court flatly rejected this argument, id., at 57-59, and appellant then renewed it in his petition for hearing, p. 1, before the California Supreme Court. The present case thus closely resembles Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282, 425 S.Ct. 106, 66 L.Ed. 239 (1921), where a state statute was challenged as being in conflict with the Commerce Clause. The Court held that the appeal was proper, since the appellant "did not simply claim a right or immunity under the Constitution of the United States, but distinctly insisted that as to the transaction in question the . . . statute was void, and therefore unenforceable, because in conflict with the commerce clause . . . ." Id., at 288-289, 42 S.Ct., at 107-108. Accordingly, we conclude on the authority of Dahnke-Walker that this is a proper appeal. See also Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434, 440-441, 99 S.Ct. 1813, 1817-1818, 60 L.Ed.2d 336 (1979).
13
In Tyler the Court held that a retired officer was entitled to the benefit of a statute that increased the pay of "commissioned officers." The Court reasoned:
"It is impossible to hold that men who are by statute declared to be part of the army, who may wear its uniform, whose names shall be borne upon its register, who may be assigned by their superior officers to specified duties by detail as other officers are, who are subject to the rules and articles of war, and may be tried, not by a jury, as other citizens are, but by a military court-martial, for any breach of those rules, and who may finally be dismissed on such trial from the service in disgrace, are still not in the military service." 105 U.S., at 246. (Emphasis in original.)
See also Kahn v. Anderson, 255 U.S. 1, 6-7, 41 S.Ct. 224, 225, 65 L.Ed. 469 (1921); Puglisi v. United States, 215 Ct.Cl. 86, 97, 564 F.2d 403, 410 (1977), cert. denied, 435 U.S. 968, 98 S.Ct. 1606, 56 L.Ed.2d 59 (1978).
14
A retired officer may lose part of his retired pay if he takes Federal Civil Service employment. See 5 U.S.C. § 5531 et seq. (1976 ed. and Supp. IV). He may lose all his pay if he gives up United States citizenship, see 58 Comp.Gen. 566, 568-569 (1979); accepts employment by a foreign government, U.S.Const., Art. I, § 9, cl. 8, but see Pub. L. 95-105, § 509, 91 Stat. 859 (granting congressional permission to engage in such employment with approval of the Secretary concerned and the Secretary of State); or sells supplies to an agency of the Department of Defense, or other designated agencies. 37 U.S.C. § 801 note. See also Pub. L. 87-849, § 2, 76 Stat. 1126 (retired officer may not represent any person in sale of anything to Government through department in whose service he holds retired status). The officer also may forfeit his retired pay if court-martialed. See Hooper v. United States, cited in the text.
15
Relying upon Tyler, the Ninth Circuit recently rejected the argument that Congress' alteration of the method by which retired pay is calculated deprived retired military personnel of property without due process of law. Costello v. United States, 587 F.2d 424, 426 (CA9 1978), cert. denied, 442 U.S. 929, 99 S.Ct. 2858, 61 L.Ed.2d 296 (1979). The court held that since "retirement pay does not differ from active duty pay in its character as pay for continuing military service," 587 F.2d, at 427, its method of calculation could be prospectively altered under the precedent of United States v. Larionoff, 431 U.S. 864, 879, 97 S.Ct. 2150, 2159, 53 L.Ed.2d 48 (1977). See also Abbott v. United States, 200 Ct.Cl. 384, cert. denied, 414 U.S. 1024, 94 S.Ct. 448, 38 L.Ed.2d 315 (1973); Lemly v. United States, 109 Ct.Cl. 760, 763, 75 F.Supp. 248, 249 (1948); Watson v. Watson, 424 F.Supp. 866 (EDNC 1976).
Some state courts also have concluded that military retired pay is not "property" within the meaning of their state divorce statutes because it does not have any "cash surrender value; loan value; redemption value; . . . [or] value realizable after death." Ellis v. Ellis, 191 Colo. 317, 319, 552 P.2d 506, 507 (1976). See Fenney v. Fenney, 259 Ark. 858, 537 S.W.2d 367 (1976).
16
A number of state courts have held that military retired pay is deferred compensation, not current compensation for reduced services. See, e. g., In re Fithian, 10 Cal.3d, at 604, 517 P.2d, at 456; In re Miller, Mont., 609 P.2d 1185 (1980), cert. pending sub nom. Miller v. Miller, No. 80-291; Kruger v. Kruger, 73 N.J. 464, 375 A.2d 659 (1977). It is true that retired pay bears some of the features of deferred compensation. See W. Glasson, Federal Military Pensions in the United States 99 (1918). The amount of retired pay a service member receives is calculated not on the basis of the continuing duties he actually performs, but on the basis of years served on active duty and the rank obtained prior to retirement. See n. 7, supra. Furthermore, should the service member actually be recalled to duty, he receives additional compensation according to the active duty pay scale, and his rate of retired pay is also increased thereafter. 10 U.S.C. § 1402, as amended by Pub.L. 96-342, § 813(b)(2), 94 Stat. 1102, and by Pub.L. 96-513, § 511(50), 94 Stat. 2924.
Nonetheless, the fact remains that the retired officer faces not only significant restrictions upon his activities, but also a real risk of recall. At the least, then, the possibility that Congress intended military retired pay to be in part current compensation for those risks and restrictions suggests that States must tread with caution in this area, lest they disrupt the federal scheme. See Hooper v. United States, 164 Ct.Cl., at 159, 326 F.2d, at 987 ("the salary he received was not solely recompense for past services, but a means devised by Congress to assure his availability and preparedness in future contingencies"). Cf. Cong.Globe, 37th Cong., 1st Sess., 158 (1861) (remark of Sen. Grimes) (object of first nondisability retirement statute was "to retire gentlemen who have served the country faithfully and well for forty years, voluntarily if they see fit, (but subject, however, to be called into the service of the country at any moment that the President of the United States may ask for their services,) . . .").
17
Section 2771 provides in relevant part:
"(a) In the settlement of the accounts of a deceased member of the armed forces . . . an amount due from the armed force of which he was a member shall be paid to the person highest on the following list living on the date of death:
"(1) Beneficiary designated by him in writing to receive such an amount . . . .
"(2) Surviving spouse.
"(3) Children and their descendants, by representation.
"(4) Father and mother in equal parts or, if either is dead, the survivor.
"(5) Legal representative.
"(6) Person entitled under the law of the domicile of the deceased member."
Section 2771 was designed to "permit the soldier himself to designate a beneficiary for his final pay." H.R.Rep.No.833, 84th Cong., 1st Sess., 2 (1955). While this statute gives a service member the power of testamentary disposition over any amount owed by the Government, we do not decide today whether California may treat active duty pay as community property. Cf. Wissner v. Wissner, 338 U.S. 655, 657, n. 2, 70 S.Ct. 398, 399, 94 L.Ed. 424 (1950). We hold only that § 2771, in combination with other features of the military retirement system, indicates that Congress intended retired pay to be a "personal entitlement."
18
An annuity under either plan is not "assignable or subject to execution, levy, attachment, garnishment, or other legal process." 10 U.S.C. § 1440 and § 1450(i). Clearly, then, a spouse cannot claim an interest in an annuity not payable to him or her on the ground that it was purchased with community assets. See Wissner, 338 U.S., at 659, 70 S.Ct., at 400. Cf. Hisquierdo, 439 U.S., at 584, 99 S.Ct., at 809.
19
The RSFPP provides in relevant part:
"To provide an annuity under section 1434 of this title, a [service member] may elect to receive a reduced amount of the retired pay or retainer pay to which he may become entitled as a result of service in his armed force." 10 U.S.C. § 1431(b) (emphasis added).
The SBP states in relevant part:
"The Plan applies—
"(A) to a person who is eligible to participate in the Plan . . . and who is married or has a dependent child when he becomes entitled to retired or retainer pay, unless he elects not to participate in the Plan before the first day for which he is eligible for that pay . . . ." 10 U.S.C. § 1448(a)(2) (1976 ed., Supp. IV) (emphasis added).
20
The SBP provides: "If a person who is married elects not to participate in the Plan at the maximum level or elects to provide an annuity for a dependent child but not for his spouse, that person's spouse shall be notified of the decision." 10 U.S.C. § 1448(a). But, as both the language of this section and the legislative history make clear, the spouse only receives notice; the decision is the service member's alone. See H.R.Rep.No.92-481, at 8-9. An election not to participate in the SBP is in most cases irrevocable if not revoked before the date on which the service member first becomes entitled to retired pay. § 1448(a).
21
In Fithian, 10 Cal.3d, at 600, 111 Cal.Rptr., at 374, 517 P.2d, at 454, the California Supreme Court observed and acknowledged: "Because federal military retirement pay carries with it no right of survivorship, the characterization of benefits as community property places the serviceman's ex-wife in a somewhat better position than that of his widow."
This is so for several reasons. If the service member does not elect to participate in the RSFPP or SBP, his widow will receive nothing. In contrast, if an ex-spouse has received an offsetting award of presently available community property to compensate her for her interest in the expected value of the retired pay, see n. 8, supra, she continues to be provided for even if the service member dies prematurely. See Hisquierdo, 439 U.S., at 588-589, 99 S.Ct., at 811-812. Furthermore, whereas an SBP annuity payable to a surviving spouse terminates if he or she remarries prior to age 60, see 10 U.S.C. § 1450(b), the ex-spouse's community awards against the retired service member continue despite remarriage. Lastly, annuity payments are subject to Social Security offsets, see 10 U.S.C. § 1451, whereas community property awards are not. It is inconceivable that Congress intended these anomalous results. See Goldberg, Is Armed Services Retired Pay Really Community Property?, 48 Cal. Bar J. 89 (1973).
22
In addition, an Army enlisted man may not assign his pay. 37 U.S.C. § 701(c). While an Army officer may transfer or assign his pay account "[u]nder regulations prescribed by the Secretary of the Army," he may do so only when the account is "due and payable." § 701(a). This limitation would appear to serve the same purpose as the prohibition against "anticipation" discussed in Hisquierdo, 439 U.S., at 588-589, 99 S.Ct., at 811-812. Cf. Smith v. Commanding Officer, Air Force Accounting and Finance Center, 555 F.2d 234, 235 (CA9 1977). But even if there were no explicit prohibition against "anticipation" here, it is clear that the injunction against attachment is not to be circumvented by the simple expedient of an offsetting award. See Hisquierdo, 439 U.S., at 588, 99 S.Ct., at 811. Cf. Free v. Bland, 369 U.S. 663, 669, 82 S.Ct. 1089, 1093, 8 L.Ed.2d 180 (1962).
23
Appellee contends, mistakenly in our view, that the doctrine of nonattachability set forth in Buchanan simply "restate[s] the Government's sovereign immunity from burdensome garnishment suits . . . ." See Hisquierdo, 439 U.S., at 586, 99 S.Ct., at 810. Rather than resting on the grounds that garnishment would be administratively burdensome, Buchanan pointed out: "The funds of the government are specifically appropriated to certain national objects, and if such appropriations may be diverted and defeated by state process or otherwise, the functions of the government may be suspended." 4 How., at 20. See also H.R.Rep.No.92-481, at 17.
24
Under § 814 of the Foreign Service Act of 1980, Pub.L. 96-465, 94 Stat. 2113, a former spouse who was married to a Foreign Service member for at least 10 years of creditable service is entitled to a pro rata share of up to 50% of the member's retirement benefits, unless otherwise provided by spousal agreement or court order; the former spouse also may claim a pro rata share of the survivor's annuity provided for the member's widow. Moreover, the member cannot elect not to provide a survivor's annuity without the consent of his spouse or former spouse.
The Committee Reports commented upon the radical nature of this legislation. See H.R.Rep.No.96-992, pt. 1, pp. 70-71 (1980); S.Rep.No.96-913, pp. 66-68 (1980); H.R.Conf.Rep.No.96-1432, p. 116 (1980), U.S.Code Cong. & Admin.News 1980, p. 4419. During the floor debates Representative Schroeder pointed out: "Whereas social security provides automatic benefits for spouses and former spouses, married at least 10 years, Federal retirement law has previously not recognized the contribution of the nonworking spouse or former spouse." 126 Cong.Rec. (1980). Representative Schroeder also noted that Congress had "thus far" failed to enact legislation that would extend to the military the "equitable treatment of spouses" afforded under the Civil Service and Foreign Service retirement systems. Id., at 28660.
25
Like the Foreign Service amendments, H.R.2817, 96th Cong., 1st Sess. (1979), would have entitled a former spouse to a pro rata share of the retired pay and of the annuity provided to the surviving spouse; similarly, the bill would have required the service member to obtain the consent of his spouse and ex-spouse before electing not to provide a survivor's annuity. This bill was referred to the House Committee on Armed Services along with two other bills, H.R.3677, 96th Cong., 1st Sess. (1979), and H.R.6270, 96th Cong., 2d Sess. (1980). Whereas H.R.2817 would have amended Title 10 to bring it into conformity with the Foreign Service model, these other two bills paralleled the Civil Service legislation, and would have authorized the United States to comply with the terms of a court decree or property settlement in connection with the divorce of a service member receiving retired pay. After extensive hearings, all three bills died in committee. See Hearing on H.R.2817, H.R.3677, and H.R.6270 before the Military Compensation Subcommittee of the House Committee on Armed Services, 96th Cong., 2d Sess. (1980).
Legislation has been introduced in the 97th Congress that would require the pro rata division of military retired pay. See H.R.3039, 97th Cong., 1st Sess. (1981), and S.888, 97th Cong., 1st Sess. (1981). See also H.R.3040, 97th Cong., 1st Sess. (1981) (pro rata division of retirement benefits of any federal employee).
26
A recent Presidential Commission has questioned the extent to which the military retirement system actually accomplishes these goals. See Report of the President's Commission on Military Compensation 49-56 (1978). Moreover, the Department of Defense has taken the position that service members are legally bound to comply with financial settlements ordered by state divorce courts; but while the Department did not oppose the legislation introduced in the 96th Congress that would have required the United States to honor community property divisions of military retired pay by state courts, it did express its concern over the dissimilar treatment afforded service members depending on whether or not they are stationed in community property States. See Hearing on H.R.2817, H.R.3677, and H.R.6270 before the Military Compensation Subcommittee of the House Committee on Armed Services, 96th Cong., 2d Sess., 55, 58, 63 (1980) (statement of Deputy Assistant Secretary Tice). Of course, the questions whether the retirement system should be amended so as better to accomplish its personnel management goals, and whether those goals should be subordinated to the protection of the service member's ex-spouse, are policy issues for Congress to decide.
1
The Court maintains that the present case is like McCune : "[s]o here, the right appellee asserts 'reverses the order of the statute' by giving the ex-spouse an interest paramount to that of the surviving spouse and children of the service member. . . ." Ante, at 233. With all respect, I do not understand the statute to establish any ordered list of those with interests in retired pay. The Court's argument is apparently that recognizing the ex-spouse's interest in retired pay would burden the serviceman's decision to fund an annuity for his current spouse out of retired pay. This is of course a far cry from the situation in McCune, where the statute accorded the surviving widow and daughter specific places and the daughter sought to switch the order by invoking community property law. Even if the Court is correct that there is a conflict between California's community property law and the decision of the serviceman to fund an annuity out of retired pay, the answer is not to pre-empt community property treatment across the board, but only to the extent of the conflict, i. e., permit community property treatment of retired pay less any amounts which are used to fund an annuity. See infra, at 245.
2
The error in the Court's logic is perhaps most apparent when it is recognized that the arrearages provision apples to regular military pay as well as retired pay. The Court's logic would compel the conclusion that regular pay is thus not subject to community property treatment, an untenable position which the Court itself shies away from without explanation, ante, at 224-225, n. 17.
3
The Court states that "[r]etired pay cannot be attached to satisfy a property settlement incident to the dissolution of a marriage," ante, at 228. The sources for this are not statutory but rather a common-law doctrine, Buchanan v. Alexander, 4 How. 20, 11 L.Ed. 857 (1845), and a House Report explaining a decision not to enact a bill, see ante, at 228-230. The Court cannot of course justify either source as Congress "positively requir[ing] by direct enactment" that state law be pre-empted. See Hisquierdo, 439 U.S., at 581, 99 S.Ct., at 808. Thus even accepting the rule, it does not, as § 14 of the Railroad Retirement Act did in Hisquierdo, evince the strong congressional intent that military retired pay "actually reach the beneficiary." And congressional intent is all the prohibition on attachment is relevant to, since appellee seeks neither anticipation of pay nor attachment from the Government.
| 910
|
453 U.S. 247
101 S.Ct. 2748
69 L.Ed.2d 616
CITY OF NEWPORT et al., Petitioners,v.FACT CONCERTS, INC. and Marvin Lerman.
No. 80-396.
Argued March 31, 1981.
Decided June 26, 1981.
Syllabus
Respondents (an organization licensed by petitioner city to present certain musical concerts, and a promoter of the concerts) brought suit in Federal District Court against the city and city officials. Alleging, inter alia, that the city's cancellation of the license amounted to a violation of their constitutional rights under color of state law, respondents sought compensatory and punitive damages under 42 U.S.C. § 1983. Without objection, the court gave an instruction authorizing the jury to award punitive damages against each defendant, including the city. Verdicts were returned for respondents, which in addition to awarding compensatory damages also awarded punitive damages against both the individual officials and the city. The city moved for a new trial, arguing for the first time that punitive damages could not be awarded against a municipality under § 1983. Although noting that the challenge to the instruction was untimely under Federal Rule of Civil Procedure 51, the District Court considered and rejected the city's substantive legal arguments on their merits. The Court of Appeals affirmed, finding that the city's failure to object to the charge at trial, as required by Rule 51, could not be overlooked on the theory that the charge itself was plain error. The court also expressed a belief that the challenged instruction might not have been error at all, and identified the "distinct possibility" that municipalities could be liable for punitive damages under § 1983 in the proper circumstances.
Held:
1. The city's failure to object to the charge at trial does not foreclose this Court from reviewing the punitive damages issue. Because the District Court adjudicated the merits, and the Court of Appeals did not disagree with that adjudication, no interests in fair and effective trial administration advanced by Rule 51 would be served if this Court refused to reach the merits. Nor should review here be limited to the restrictive "plain error" standard. The contours of municipal liability under §1983 are currently in a state of evolving definition and uncertainty, and the very novelty of the legal issue at stake counsels unconstricted review. In addition to being novel, the punitive damages question is also important and appears likely to recur in § 1983 litigation against municipalities. Pp. 255-257.
2. A municipality is immune from punitive damages under § 1983. Pp. 258-271.
(a) In order to conclude that Congress meant to incorporate a particular immunity as an affirmative defense in § 1983 litigation, a court must undertake careful inquiry into considerations of both history and public policy. Pp. 258-259.
(b) In 1871, when Congress enacted what is now § 1983, it was generally understood that a municipality was to be treated as a natural person subject to suit for a wide range of tortious activity, but this understanding did not extend to the award of punitive damages at common law. Indeed, common-law courts consistently and expressly declined to award punitive damages against municipalities. Nothing in the legislative history suggests that, in enacting § 1 of the Civil Rights Act of 1871, Congress intended to abolish the doctrine of municipal immunity from punitive damages. If anything, the relevant history suggests the opposite. Pp. 259-266.
(c) Considerations of public policy do not support exposing a municipality to punitive damages for the malicious or reckless conduct of its officials. Neither the retributive nor the deterrence objectives of punitive damages and of § 1983 would be significantly advanced by holding municipalities liable for such damages. Pp. 266-271.
626 F.2d 1060, vacated and remanded.
Guy J. Wells, Providence, R.I., for petitioners.
Leonard Decof, Providence, R.I., for respondents.
Justice BLACKMUN delivered the opinion of the Court.
1
In Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), this Court for the first time held that a local government was subject to suit as a "person" within the meaning of 42 U.S.C. § 1983. Aside from concluding that a municipal body was not wholly immune from civil liability, the Court had no occasion to explore the nature or scope of any particular municipal immunity under the statute. 436 U.S., at 701, 98 S.Ct., at 2041. The question presented by this case is whether a municipality may be held liable for punitive damages under § 1983.
2
* A.
3
Respondent Fact Concerts, Inc., is a Rhode Island corporation organized for the purpose of promoting musical concerts.1 In 1975, it received permission from the Rhode Island Department of Natural Resources to present several summer concerts at Fort Adams, a state park located in the city of Newport. In securing approval for the final concerts, to be held August 30 and 31, respondent sought and obtained an entertainment license from petitioner city of Newport.2 Under their written contract, respondent retained control over the choice of performers and the type of music to be played while the city reserved the right to cancel the license without liability if "in the opinion of the City the interests of public safety demand." App. 27.
4
Respondent engaged a number of well-known jazz music acts to perform during the final August concerts. Shortly before the dates specified, the group Blood, Sweat and Tears was hired as a replacement for a previously engaged performer who was unable to appear. Members of the Newport City Council, including the Mayor, became concerned that Blood, Sweat and Tears, which they characterized as a rock group rather than as a jazz band, would attract a rowdy and undesirable audience to Newport. 2 Record Appendix (R. A.) 265, 316-317, 325.3 Based on this concern, the Council attempted to have Blood, Sweat and Tears removed from the program.
5
On Monday, August 25, Mayor Donnelly informed respondent by telephone that he considered Blood, Sweat and Tears to be a rock group, and that they would not be permitted to perform because the city had experienced crowd disturbances at previous rock concerts. Id., at 195. Officials of respondent appeared before the City Council at a special meeting the next day, and explained that Blood, Sweat and Tears in fact were a jazz band that had performed at Carnegie Hall in New York City and at similar symphony hall facilities throughout the world. Speaking for the Council, the Mayor reiterated that the city did not condone rock festivals. Without attempting to investigate either the nature of the group's music or the representations made by respondent, the Council voted to cancel the license for both days unless Blood, Sweat and Tears were removed from the program. Id., at 267-269. The vote received considerable publicity, and this adversely affected ticket sales. Id., at 248-G.
6
Later in the same week, respondent was informed by the City Solicitor that the Council had changed its position and would allow Blood, Sweat and Tears to perform if they did not play rock music. On Thursday, August 28, respondent agreed to attend a second special Council meeting the following day.
7
The second Council session convened on the afternoon of August 29, the day before the first scheduled performance. Mayor Donnelly informed the Council members that the city had two options—it could either allow Blood, Sweat and Tears to perform subject to the prohibition against rock music, or cancel the concert altogether. Although the City Solicitor advocated the first alternative and advised that cancellation would be unlawful, 3 R. A. at 478, the Council did not offer the first option to respondent. Instead, one of the Council members inquired whether all provisions of the contract had been fulfilled. The City Manager, who had just returned from the concert site, reported that the wiring together of the spectator seats was not fully completed by 3 p. m., and that the auxiliary electric generator was not in place. Under the contract, respondent had agreed to fulfill these two conditions as part of the overall safety procedures. App. 28.4 The Council then voted to cancel the contract because respondent had not "lived up to all phases" of the agreement. 4 R. A. 10. The Council offered respondent a new contract for the same dates, specifically excluding Blood, Sweat and Tears. Respondent, however, indicated that it would take legal action if the original contract was not honored. 1 R. A. 96; 2 R. A. 202; 4 R. A. 11. After the meeting adjourned at 9:30 p.m., the decision to revoke respondent's license was broadcast extensively over the local media. 1 R. A. 97; 2 R. A. 204.
8
On Saturday morning, August 30, respondent obtained in state court a restraining order enjoining the Mayor, the City Council, and the city from interfering with the performance of the concerts. The 2-day event, including the appearance of Blood, Sweat and Tears, took place without incident. Fewer than half the available tickets were sold.
B
9
Respondent instituted the present action in the United States District Court for the District of Rhode Island, naming the city, its Mayor, and the six other Council members as defendants. Alleging, inter alia, that the license cancellation amounted to content-based censorship, and that its constitutional rights to free expression and due process had been violated under color of state law, respondent sought compensatory and punitive damages against the city and its officials under 42 U.S.C. § 1983 and under two pendent state-law counts, including tortious interference with contractual relationships. App. 8. At the conclusion of six days of trial, the District Court charged the jury with respect to the § 1983 and tortious interference counts. Included in its charge was an instruction, given without objection, that authorized the jury to award punitive damages against each defendant individually, "based on the degree of culpability of the individual defendant." App. 62.5 The jury returned verdicts for respondent on both counts, awarding compensatory damages of $72,910 and punitive damages of $275,000; of the punitive damages, $75,000 was spread among the seven individual officials and $200,000 was awarded against the city.6
10
Petitioner moved for a new trial, arguing that punitive damages cannot be awarded under § 1983 against a municipality, and that even if they can, the award was excessive.7 Because petitioner challenged the punitive damages instruction to which it had not objected at trial, the District Court noted that the challenge was untimely under Federal Rule of Civil Procedure 51. But the court was determined not to "rest its decision on this procedural ground alone." App. to Pet. for Cert. B-3. Reasoning that "a careful resolution of this novel question is critical to a just verdict in this case," id., at B-7, the court proceeded to consider petitioner's substantive legal arguments on their merits.
11
The District Court recognized, ibid., that Monell had left undecided the question whether municipalities may be held liable for punitive damages. 436 U.S., at 701, 98 S.Ct., at 2041. The court observed, however, that punitive damages often had been awarded against individual officials in § 1983 actions, and it found no clear basis for distinguishing between individuals and municipalities in this regard. Emphasizing the general deterrent purpose served by punitive damages awards, the court reasoned that a municipality's payment of such an award would focus taxpayer and voter attention upon the entity's malicious conduct, and that this in turn might promote accountability at the next election. App. to Pet. for Cert. B-9. Although noting that the burden imposed upon taxpaying citizens warranted judicial caution in this area, the court concluded that in appropriate circumstances municipalities could be held liable for punitive damages in a § 1983 action.8
12
The United States Court of Appeals for the First Circuit affirmed. 626 F.2d 1060 (1980). That court noted, as an initial matter, that the challenge to the punitive damages award was flawed due to petitioner's failure to object to the charge at trial. The court observed that such a failure should be overlooked "only where the error is plain and 'has seriously affected the fairness, integrity or public reputation of a judicial proceeding.' " Id., at 1067. The court found none of these factors present, because the law concerning municipal liability under § 1983 was in a state of flux, and no appellate decision had barred punitive damages awards against a municipality.
13
The Court of Appeals also expressed a belief that the challenged instruction might well not have been error at all. 626 F.2d, at 1067. Citing its own prior holdings to the effect that punitive damages are available against § 1983 defendants, and this Court's recent determination in Monell that a municipality is a "person" within the meaning of § 1983, the court identified the "distinct possibility that municipalities, like all other persons subject to suit under § 1983, may be liable for punitive damages in the proper circumstances." 626 F.2d, at 1067.
14
Because of the importance of the issue, we granted certiorari. 449 U.S. 1060, 101 S.Ct. 782, 66 L.Ed.2d 603 (1980).
II
15
At the outset, respondent asserts that the punitive damages issue was not properly preserved for review before this Court. Brief for Respondents 7-9. In light of Rule 51's uncompromising language9 and the policies of fairness and judicial efficiency incorporated therein, respondent claims that petitioner's failure to object to the charge at trial should foreclose any further challenge to that instruction. The problem with respondent's argument is that the District Court in the first instance declined to accept it. Although the punitive damages question perhaps could have been avoided simply by a reliance, under Rule 51, upon petitioner's procedural default,10 the judge concluded that the interests of justice required careful consideration of this "novel question" of federal law.11 Because the District Court reached and fully adjudicated the merits, and the Court of Appeals did not disagree with that adjudication, no interests in fair and effective trial administration advanced by Rule 51 would be served if we refused now to reach the merits ourselves.12
16
Nor are we persuaded that our review should be limited to determining whether "plain error" has been committed, an exception to Rule 51 that is invoked on occasion by the Courts of Appeals absent timely objection in the trial court.13 No "right" to a specific standard of review exists in this setting, any more than a "right" to review existed at all once petitioner failed to except to the charge at trial. But given the special circumstances of this case, limiting our review to a restrictive "plain error" standard would be peculiarly inapt.
17
"Plain error" review under Rule 51 is suited to correcting obvious instances of injustice or misapplied law. A court's interpretation of the contours of municipal liability under § 1983, as both courts below recognized, hardly could give rise to plain judicial error since those contours are currently in a state of evolving definition and uncertainty. See Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980); Monell. See also Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980); Middlesex County Sewerage Authority v. National Sea Clammers Assn., 453 U.S. 1, 101 S.Ct. 2615, 69 L.Ed.2d 435. We undertake review here in order to resolve one element of the uncertainty, that is, the availability of punitive damages, and it would scarcely be appropriate or just to confine our review to determining whether any error that might exist is sufficiently egregious to qualify under Rule 51. The very novelty of the legal issue at stake counsels unconstricted review.
18
In addition to being novel, the punitive damages question is important and appears likely to recur in § 1983 litigation against municipalities.14 And here the question was squarely presented and decided on a complete trial record by the court of first resort, was argued by both sides to the Court of Appeals, and has been fully briefed before this Court. In light of all these factors, we conclude that restricting our review to the plain-error standard would serve neither to promote the interests of justice nor to advance efficient judicial administration.15 We therefore turn to the merits of petitioner's claim.16
III
19
It is by now well settled that the tort liability created by § 1983 cannot be understood in a historical vacuum. In the Civil Rights Act of 1871, Congress created a federal remedy against a person who, acting under color of state law, deprives another of constitutional rights. See Monroe v. Pape, 365 U.S. 167, 172, 81 S.Ct. 473, 476, 5 L.Ed.2d 492 (1961). Congress, however, expressed no intention to do away with the immunities afforded state officials at common law, and the Court consistently has declined to construe the general language of § 198317 as automatically abolishing such traditional immunities by implication. Procunier v. Navarette, 434 U.S. 555, 561, 98 S.Ct. 855, 859, 55 L.Ed.2d 24 (1978); Imbler v. Pachtman, 424 U.S. 409, 417, 96 S.Ct. 984, 988, 47 L.Ed.2d 128 (1976); Pierson v. Ray, 386 U.S. 547, 554-555, 87 S.Ct. 1213, 1217-1218, 18 L.Ed.2d 288 (1967); Tenney v. Brandhove, 341 U.S. 367, 376, 71 S.Ct. 783, 788, 95 L.Ed. 1019 (1951). Instead, the Court has recognized immunities of varying scope applicable to different officials sued under the statute.18 One important assumption underlying the Court's decisions in this area is that members of the 42d Congress were familiar with common-law principles, including defenses previously recognized in ordinary tort litigation, and that they likely intended these common-law principles to obtain, absent specific provisions to the contrary.
20
At the same time, the Court's willingness to recognize certain traditional immunities as affirmative defenses has not led it to conclude that Congress incorporated all immunities existing at common law. See Scheuer v. Rhodes, 416 U.S. 232, 243, 94 S.Ct. 1683, 1690, 40 L.Ed.2d 90 (1974). Indeed, because the 1871 Act was designed to expose state and local officials to a new form of liability, it would defeat the promise of the statute to recognize any preexisting immunity without determining both the policies that it serves and its compatibility with the purposes of § 1983. See Imbler v. Pachtman, 424 U.S., at 424, 96 S.Ct., at 992; id., at 434, 96 S.Ct., at 996 (opinion concurring in judgment); Owen v. City of Independence, 445 U.S., at 638, 100 S.Ct., at 1409. Only after careful inquiry into considerations of both history and policy has the Court construed § 1983 to incorporate a particular immunity defense.
21
Since Monell was decided three years ago, the Court has applied this two-part approach when scrutinizing a claim of immunity proffered by a municipality. InOwen v. City of Independence, the Court held that neither history nor policy supported a construction of § 1983 that would allow a municipality to assert the good faith of its officers or agents as a defense to liability for damages. 445 U.S., at 638, 657, 100 S.Ct., at 1409, 1418. Owen, however, concerned only compensatory damages, and petitioner contends that with respect to a municipality's liability for punitive damages, an examination of the common-law background and policy considerations yields a very different result.
A.
22
By the time Congress enacted what is now § 1983, the immunity of a municipal corporation from punitive damages at common law was not open to serious question. It was generally understood by 1871 that a municipality, like a private corporation, was to be treated as a natural person subject to suit for a wide range of tortious activity,19 but this understanding did not extend to the award of punitive or exemplary damages. Indeed, the courts that had considered the issue prior to 1871 were virtually unanimous in denying such damages against a municipal corporation. E. g., Woodman v. Nottingham, 49 N.H. 387 (1870); City of Chicago v. Langlass, 52 Ill. 256 (1869); City Council of Montgomery v. Gilmer & Taylor, 33 Ala. 116 (1858); Order of Hermits of St. Augustine v. County of Philadelphia, 4 Clark 120, Brightly N.P. 116 (Pa.1847); McGary v. President & Council of the City of Lafayette, 12 Rob. 668, 674 (La.1846).20 Judicial disinclination to award punitive damages against a municipality has persisted to the present day in the vast majority of jurisdictions.21 See generally 18 E. McQuillin, Municipal Corporations § 53.18a (3d rev. ed. 1977); F. Burdick, Law of Torts 245-246 (4th ed. 1926); 4 J. Dillon, Law of Municipal Corporations § 1712 (5th ed. 1911); G. Field, Law of Damages § 80 (1876).
23
The language of the opinions themselves is instructive as to the reasons behind this common-law tradition. In McGary, for example, the Louisiana Supreme Court refused to allow punitive damages against the city of Lafayette despite the malicious acts of its municipal officers, who had violated an injunction by ordering the demolition of plaintiff's house. Reasoning that the officials' malice should not be attributed to the taxpaying citizens of the community, the court explained its holding:
24
"Those who violate the laws of their country, disregard the authority of courts of justice, and wantonly inflict injuries, certainly become thereby obnoxious to vindictive damages. These, however, can never be allowed against the innocent. Those which the plaintiff has recovered in the present case . . ., being evidently vindictive, cannot, in our opinion, be sanctioned by this court, as they are to be borne by widows, orphans, aged men and women, and strangers, who, admitting that they must repair the injury inflicted by the Mayor on the plaintiff, cannot be bound beyond that amount, which will be sufficient for her indemnification." 12 Rob., at 677.
25
Similarly, in Hunt v. City of Boonville, 65 Mo. 620 (1877), the Missouri Supreme Court held that a municipality could not be found liable for treble damages under a trespass statute, notwithstanding the statute's authorization of such damages against "any person." After noting the existence of "respectable authority" to the effect that municipal corporations "can not, as such, do a criminal act or a willful and malicious wrong and they cannot therefore be made liable for exemplary damages," id., at 624, the court continued:
26
"[T]he relation which the officers of a municipal corporation sustain toward the citizens thereof for whom they act, is not in all respects identical with that existing between the stockholders of a private corporation and their agents; and there is not the same reason for holding municipal corporations, engaged in the performance of acts for the public benefit, liable for the willful or malicious acts of its officers, as there is in the case of private corporations." Id., at 625.
27
Of particular relevance to our current inquiry is Order of Hermits of St. Augustine v. County of Philadelphia, supra, which involved a Pennsylvania statute that authorized property owners within the county to bring damages actions against it for the destruction of their property by mob violence.22 The court observed that the "persons" against whom the statute authorized recovery included the county corporation, and it held that plaintiffs were entitled to compensatory damages as part of the county's duty to make reparation to its citizens for injuries sustained as a result of lawless violence. While noting that punitive damages would have been available against the rioters themselves, the court nonetheless held that such exemplary damages were not recoverable against the county.
28
The rationale of these decisions was reiterated in numerous other common-law jurisdictions. E. g., Wilson v. City of Wheeling, 19 W.Va. 323, 350 (1882) ("The city is not a spoliator and should not be visited by vindictive or punitive damages"); City of Chicago v. Langlass, 52 Ill., at 259 ("But in fixing the compensation the jury have no right to give vindictive or punitive damages, against a municipal corporation. Against such a body they should only be compensatory, and not by way of punishment"); City Council of Montgomery v. Gilmer & Taylor, 33 Ala., at 132 ("The [municipal] corporation can not, upon any principle known to us, be responsible for the malice of its officers towards the plaintiffs"). In general, courts viewed punitive damages as contrary to sound public policy, because such awards would burden the very taxpayers and citizens for whose benefit the wrongdoer was being chastised. The courts readily distinguished between liability to compensate for injuries inflicted by a municipality's officers and agents, and vindictive damages appropriate as punishment for the bad-faith conduct of those same officers and agents. Compensation was an obligation properly shared by the municipality itself, whereas punishment properly applied only to the actual wrongdoers. The courts thus protected the public from unjust punishment, and the municipalities from undue fiscal constraints.23
29
Given that municipal immunity from punitive damages was well established at common law by 1871, we proceed on the familiar assumption that "Congress would have specifically so provided had it wished to abolish the doctrine." Pierson v. Ray, 386 U.S., at 555, 87 S.Ct., at 1218. Nothing in the legislative debates suggests that, in enacting § 1 of the Civil Rights Act, the 42d Congress intended any such abolition. Indeed, the limited legislative history relevant to this issue suggests the opposite.
30
Because there was virtually no debate on § 1 of the Act, the Court has looked to Congress' treatment of the amendment to the Act introduced by Senator Sherman as indicative of congressional attitudes toward the nature and scope of municipal liability. Monell, 436 U.S., at 692, n. 57, 98 S.Ct., at 2036, n. 57.24 Initially, it is significant that the Sherman amendment as proposed contemplated the award of no more than compensatory damages for injuries inflicted by mob violence. The amendment would not have exposed municipal governments to punitive damages; rather, it proposed that municipalities "shall be liable to pay full compensation to the person or persons damnified" by mob violence. Globe, at 749, 755 (emphasis added).25 That the exclusion of punitive damages was no oversight was confirmed by Representative Butler, one of the amendment's chief supporters, when he responded to a critical inquiry on the floor of the House:
31
"The invalidity of the gentleman's argument is that he looks upon [the amendment] as a punishment for the county. Now, we do not look upon it as a punishment at all. It is a mutual insurance. We are there a community, and if there is any wrong done by our community, or by the inhabitants of our community, we will indemnify the injured party for that wrong. . . ." Id., at 792.
32
We doubt that a Congress having no intention of permitting punitive awards against municipalities in the explicit context of the Sherman amendment would have meant to expose municipal bodies to such novel liability sub silentio under § 1 of the Act.
33
Notwithstanding the compensatory focus of the amendment, its proposed extension of municipal liability met substantial resistance in Congress, resulting in its defeat on two separate occasions.26 In addition to the constitutional reservations broached by legislators, which the Court has discussed at some length in Monell, 436 U.S., at 669-683, 98 S.Ct., at 2024-2032, Members of both Chambers also expressed more practical objections. Notably, supporters as well as opponents of § 1 voiced concern that this extension of public liability might place an unmanageable financial burden on local governments.27 Legislators also expressed apprehension that innocent taxpayers would be unfairly punished for the deeds of persons over whom they had neither knowledge nor control.28 Admittedly, both these objections were raised with particular reference to the threat of the expansive municipal liability embodied in the Sherman amendment. The two concerns are not without relevance to the present inquiry, however, in that they reflect policy considerations similar to those relied upon by the common-law courts in rejecting punitive damages awards. We see no reason to believe that Congress' opposition to punishing innocent taxpayers and bankrupting local governments would have been less applicable with regard to the novel specter of punitive damages against municipalities.
B
34
Finding no evidence that Congress intended to disturb the settled common-law immunity, we now must determine whether considerations of public policy dictate a contrary result. In doing so, we examine the objectives underlying punitive damages in general, and their relationship to the goals of § 1983.
35
Punitive damages by definition are not intended to compensate the injured party, but rather to punish the tortfeasor whose wrongful action was intentional or malicious, and to deter him and others from similar extreme conduct. See Restatement (Second) of Torts § 908 (1979); W. Prosser, Law of Torts 9-10 (4th ed. 1971). Regarding retribution, it remains true that an award of punitive damages against a municipality "punishes" only the taxpayers, who took no part in the commission of the tort. These damages are assessed over and above the amount necessary to compensate the injured party. Thus, there is no question here of equitably distributing the losses resulting from official misconduct. Cf. Owen v. City of Independence, 445 U.S., at 657, 100 S.Ct., at 1418. Indeed, punitive damages imposed on a municipality are in effect a windfall to a fully compensated plaintiff, and are likely accompanied by an increase in taxes or a reduction of public services for the citizens footing the bill. Neither reason nor justice suggests that such retribution should be visited upon the shoulders of blameless or unknowing taxpayers.29
36
Under ordinary principles of retribution, it is the wrongdoer himself who is made to suffer for his unlawful conduct. If a government official acts knowingly and maliciously to deprive others of their civil rights, he may become the appropriate object of the community's vindictive sentiments. See generally Silver v. Cormier, 529 F.2d 161, 163 (CA10 1976); Bucher v. Krause, 200 F.2d 576, 586-588 (CA7 1952), cert. denied, 345 U.S. 997, 73 S.Ct. 1141, 97 L.Ed. 1404 (1953). A municipality, however, can have no malice independent of the malice of its officials. Damages awarded for punitive purposes, therefore, are not sensibly assessed against the governmental entity itself.
37
To the extent that the purposes of § 1983 have any bearing on this punitive rationale, they do not alter our analysis. The Court previously has indicated that punitive damages might be awarded in appropriate circumstances in order to punish violations of constitutional rights, Carey v. Piphus, 435 U.S. 247, 257, n. 11, 98 S.Ct. 1042, 1049, n. 11, 55 L.Ed.2d 252 (1978), but it never has suggested that punishment is as prominent a purpose under the statute as are compensation and deterrence. See, e. g., Owen v. City of Independence, 445 U.S., at 651, 100 S.Ct., at 1415; Robertson v. Wegmann, 436 U.S. 584, 590-591, 98 S.Ct. 1991, 1995-1996, 56 L.Ed.2d 554 (1978); Carey v. Piphus, 435 U.S., at 256-257, 98 S.Ct., at 1048-1049. Whatever its weight, the retributive purpose is not significantly advanced, if it is advanced at all, by exposing municipalities to punitive damages.
38
The other major objective of punitive damages awards is to prevent future misconduct. Respondent argues vigorously that deterrence is a primary purpose of § 1983, and that because punitive awards against municipalities for the malicious conduct of their policymaking officials will induce voters to condemn official misconduct through the electoral process, the threat of such awards will deter future constitutional violations. Brief for Respondents 9-11. Respondent is correct in asserting that the deterrence of future abuses of power by persons acting under color of state law is an important purpose of § 1983. Owen v. City of Independence, 445 U.S., at 651, 100 S.Ct., at 1415; Robertson v. Wegmann, 436 U.S., at 591, 98 S.Ct., at 1995. It is in this context that the Court's prior statements contemplating punitive damages "in 'a proper' § 1983 action" should be understood. Carlson v. Green, 446 U.S. 14, 22, 100 S.Ct. 1468, 1474, 64 L.Ed.2d 15 (1980); Carey v. Piphus, 435 U.S., at 257, n. 11, 98 S.Ct., at 1049, n. 11. For several reasons, however, we conclude that the deterrence rationale of § 1983 does not justify making punitive damages available against municipalities.
39
First, it is far from clear that municipal officials, including those at the policymaking level, would be deterred from wrongdoing by the knowledge that large punitive awards could be assessed based on the wealth of their municipality. Indemnification may not be available to the municipality under local law, and even if it were, officials likely will not be able themselves to pay such sizable awards. Thus, assuming arguendo, that the responsible official is not impervious to shame and humiliation, the impact on the individual tortfeasor of this deterrence in the air is at best uncertain.
40
There also is no reason to suppose that corrective action, such as the discharge of offending officials who were appointed and the public excoriation of those who were elected, will not occur unless punitive damages are awarded against the municipality. The Court recently observed in a related context: "The more reasonable assumption is that responsible superiors are motivated not only by concern for the public fisc but also by concern for the Government's integrity." Carlson v. Green, 446 U.S., at 21, 100 S.Ct., at 1473. This assumption is no less applicable to the electorate at large. And if additional protection is needed, the compensatory damages that are available against a municipality may themselves induce the public to vote the wrongdoers out of office.
41
Moreover, there is available a more effective means of deterrence. By allowing juries and courts to assess punitive damages in appropriate circumstances against the offending official, based on his personal financial resources, the statute directly advances the public's interest in preventing repeated constitutional deprivations.30 In our view, this provides sufficient protection against the prospect that a public official may commit recurrent constitutional violations by reason of his office. The Court previously has found, with respect to such violations, that a damages remedy recoverable against individuals is more effective as a deterrent than the threat of damages against a government employer. Carlson v. Green, 446 U.S., at 21, 100 S.Ct., at 1473. We see no reason to depart from that conclusion here, especially since the imposition of additional penalties would most likely fall upon the citizen-taxpayer.
42
Finally, although the benefits associated with awarding punitive damages against municipalities under § 1983 are of doubtful character, the costs may be very real. In light of the Court's decision last Term in Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), the § 1983 damages remedy may now be available for violations of federal statutory as well as constitutional law. But cf. Middlesex County Sewerage Authority v. National Sea Clammers Ass'n, 453 U.S. 1, 101 S.Ct. 2615, 69 L.Ed.2d 435. Under this expanded liability, municipalities and other units of state and local government face the possibility of having to assure compensation for persons harmed by abuses of governmental authority covering a large range of activity in everyday life. To add the burden of exposure for the malicious conduct of individual government employees may create a serious risk to the financial integrity of these governmental entities.
43
The Court has remarked elsewhere on the broad discretion traditionally accorded to juries in assessing the amount of punitive damages. Electrical Workers v. Foust, 442 U.S. 42, 50-51, 99 S.Ct. 2121, 2127, 60 L.Ed.2d 698 (1979); Gertz v. Robert Welch, Inc., 418 U.S. 323, 349-350, 94 S.Ct. 2997, 3011-3012, 41 L.Ed.2d 789 (1974). Because evidence of a tortfeasor's wealth is traditionally admissible as a measure of the amount of punitive damages that should be awarded,31 the unlimited taxing power of a municipality may have a prejudicial impact on the jury, in effect encouraging it to impose a sizable award. The impact of such a windfall recovery is likely to be both unpredictable and, at times, substantial, and we are sensitive to the possible strain on local treasuries and therefore on services available to the public at large.32 Absent a compelling reason for approving such an award, not present here, we deem it unwise to inflict the risk.
IV
44
In sum, we find that considerations of history and policy do not support exposing a municipality to punitive damages for the bad-faith actions of its officials. Because absolute immunity from such damages obtained at common law and was undisturbed by the 42d Congress, and because that immunity is compatible with both the purposes of § 1983 and general principles of public policy, we hold that a municipality is immune from punitive damages under 42 U.S.C. § 1983. Accordingly, the judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.
45
It is so ordered.
46
Justice BRENNAN, with whom Justice MARSHALL and Justice STEVENS join, dissenting.
47
The Court today considers and decides a challenge to the District Court's jury instructions, even though petitioners failed to object to the instructions in a timely manner, as required by Rule 51 of the Federal Rules of Civil Procedure. Because this departure from Rule 51 is unprecedented and unwarranted, I respectfully dissent.
48
Respondents filed suit against petitioners in Federal District Court under 42 U.S.C. § 1983, alleging violations of their First Amendment rights. In their complaint and amended complaint, respondents prayed for punitive damages, as well as other relief. App. 11, 12, 13, 24, 25, 26. Respondents submitted a pretrial memorandum on the issue of punitive damages and, during trial, submitted an additional memorandum on the availability of punitive damages against a municipal corporation, in response to the court's request to both parties. Brief in Opposition 8. At the close of the evidence, the court instructed the jury explicitly and in detail that it could impose punitive damages against petitioners if they had acted maliciously, wantonly, or oppressively. App. 57-58. After giving the instruction, the court summoned the attorneys to the side bar, inviting objections or suggestions concerning the instructions. Record Appendix (R.A.) 591-A to 591-B. For reasons not revealed in the record, counsel for petitioners expressly declined to make any such objection or suggestion.1 Id., at 591-B. The jury returned a verdict in favor of respondents, and awarded substantial punitive damages against each of the petitioners, including the city of Newport.
49
Petitioners moved for judgment notwithstanding the verdict, and for a new trial, arguing, inter alia, that punitive damages may not be imposed against a municipality under § 1983. The court denied the motion, stating:
50
"None of these legal arguments were ever raised at trial. In fact, the defendants failed to request that any of their current legal interpretations be inserted into the jury instructions and never objected to any aspect of that charge before or after the jury retired. . . . Therefore, defendants' untimely objections are not the proper basis for this post-trial motion." App. to Pet. for Cert. B-2 to B-3 (citing Fed.Rule Civ.Proc. 51).
51
Petitioners' failure to object to the punitive damages instruction thus precluded them from raising the issue on post-trial motions. Not content to "rest its decision on this procedural ground alone," id., at B-3 (emphasis added), however, the court also held, in the alternative, that its punitive damages instruction was correct on the merits. Id., at B-7 to B-10.
52
On appeal to the Court of Appeals for the First Circuit, the court stated that petitioners' allegation of error in the punitive damages instruction
53
"is flawed by the failure to object to the charge at trial. See Fed.R.Civ.P. 51. We may overlook a failure of this nature, but only where the error is plain and 'has seriously affected the fairness, integrity or public reputation of a judicial proceeding.' " 626 F.2d 1060, 1067 (1980), quoting Morris v. Travisono, 528 F.2d 856, 859 (CA1 1976) (footnote and citation omitted).
54
The Court of Appeals then briefly canvassed the relevant precedents, stated that the law concerning punitive damages against municipalities under § 1983 is in a "state of flux," 626 F.2d, at 1067, and concluded: "[W]e would be hard-pressed to say that the trial judge's punitive damages instruction was plain error. Nor is this a case containing such 'peculiar circumstances [to warrant noticing error] to prevent a clear miscarriage of justice.' " Id., at 1067-1068, quoting Nimrod v. Sylvester, 369 F.2d 870, 873 (CA1 1966) (citation omitted; brackets in original).
55
Respondents argue before this Court that the decision of the Court of Appeals should be affirmed, because petitioners failed to object to the punitive damages instruction.2 They rely on Federal Rule of Civil Procedure 51, which states in relevant part: "No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict."
56
Rule 51 could not be expressed more clearly. Cases too numerous to list have held that failure to object to proposed jury instructions in a timely manner in accordance with Rule 51 precludes appellate review.3 Rule 51 serves an important function in ensuring orderly judicial administration and fairness to the parties. The trial judge is thereby informed in precise terms of any objections to proposed instructions, and thus is given "an opportunity upon second thought, and before it is too late, to correct any inadvertent or erroneous failure to charge." Marshall v. Nugent, 222 F.2d 604, 615 (CA1 1955). Moreover, the Rule prevents litigants from making the tactical decision not to object to instructions at trial in order to preserve a ground for appeal. In light of the significant purposes and "uncompromising language," ante, at 255, of Rule 51, courts should not depart lightly from its structures.
57
Nevertheless, like other procedural rules, Rule 51 is susceptible to flexible interpretation when strictly necessary to avoid a clear miscarriage of justice. Cf. Wood v. Georgia, 450 U.S. 261, 265, n. 5, 101 S.Ct. 1097, 1100, n. 5, 67 L.Ed.2d 220 (1981); Carlson v. Green, 446 U.S. 14, 17, n. 2, 100 S.Ct. 1468, 1471, n. 2, 64 L.Ed.2d 15 (1980); Hormel v. Helvering, 312 U.S. 552, 557, 61 S.Ct. 719, 721, 85 L.Ed. 1037 (1941).4 Accordingly, the Courts of Appeals have developed a "plain error" doctrine to deal with certain unchallenged jury instructions so contrary to law as to be manifestly unjust. Whatever the proper scope of such a doctrine,5 courts and commentators uniformly agree that it should be applied only in exceptional circumstances. As the Court of Appeals for the First Circuit has noted: " 'If there is to be a plain error exception to Rule 51 at all, it should be confined to the exceptional case where the error has seriously affected the fairness, integrity, or public reputation of judicial proceedings.' " Morris v. Travisono, supra, at 859, quoting 9 C. Wright & A. Miller, Federal Practice and Procedure § 2558, p. 675 (1971). This was the standard applied by the Court of Appeals below. 626 F.2d, at 1067.
58
The Court states that the "problem with" respondents' argument that petitioners are barred from raising the punitive damages issue "is that the District Court in the first instance declined to accept it." Ante, at 255. But the District Court did not reject respondents' argument; on the contrary, it expressly held that petitioners' objections to the jury instructions were "untimely" under Rule 51, and therefore were "not the proper basis" for post-trial challenge. App. to Pet. for Cert. B-3. Its prudential decision to discuss the merits as well does not detract from this holding.6 As the Court of Appeals held, this procedural ground is sufficient to compel affirmance in the absence of a finding of plain error constituting manifest injustice. Petitioners themselves admit that the punitive damages question may be reviewed only under a plain-error standard. Brief for Petitioners 27.
59
The Court today frankly admits that the instruction was not plain error, noting that the governing principles of law are "currently in a state of evolving definition and uncertainty." Ante, at 256. Nevertheless, it vacates the Court of Appeals' judgment. Such a vacating necessarily implies that the Court of Appeals' treatment of the procedural question was in error, but the Court provides not a hint as to what standard the Court of Appeals should have applied.7 Indeed, the Court does not even state in so many words that the Court of Appeals erred, much less explain why.
60
The Court does assert that under the "special circumstances of this case" it would be "peculiarly inapt" to confine our review to the plain-error standard employed below. It explains that the issue in this case is "novel," and that it "appears likely to recur." Ante, at 256, 257. But most of the issues before this Court are novel and likely to recur: that is why they are considered worthy of certiorari. And to the extent issues are novel, it behooves us to grant certiorari in cases where there has been full consideration of the issues by the courts below, rather than cursory treatment under a plain-error standard.
61
The Court also suggests that this case is somehow "special" because the issue "was squarely presented and decided on a complete record by the court of first resort, was argued by both sides to the Court of Appeals, and has been fully briefed before this Court." Ante, at 257. But these factors are present whenever the District Court reconsiders unchallenged jury instructions on the merits as an alternative holding, the Court of Appeals affirms on a plain-error standard, and this Court grants certiorari. See n.6, supra. In short, I see the circumstances of this case as anything but "special."
62
Applying settled principles, I conclude that the Court of Appeals was correct to affirm the District Court in this case. The jury instruction, as the Court admits, did not constitute "plain error." Moreover, as the Court of Appeals held, failure to review the instruction would not cause a clear miscarriage of justice, any more than would failure to review any other unchallenged jury instruction. There is no reason to treat punitive damages instructions differently from other instructions for Rule 51 purposes. See Whiting v. Jackson State University, 616 F.2d 116, 126-127 (CA5 1980) (no timely objection having been made, court's failure to give punitive damages instruction upheld except in exceptional cases); Mid-America Food Service, Inc. v. ARA Services, Inc., 578 F.2d 691 (CA8 1978) (no timely objection having been made, punitive damages instruction upheld in absence of plain error). Nor is the city of Newport entitled to special treatment by virtue of its governmental status. Cf. Morris v. Travisono, 528 F.2d, at 859 (failure of state correctional officers in § 1983 suit to object to jury instructions not excused, even though the instructions directed the jury to apply a harsher constitutional standard than had been established by precedent).
63
Indeed, I consider this a peculiarly inapt case to disregard petitioners' procedural default. There would be no injustice whatsoever in adhering to the Rule in this case. Petitioners were given clear notice that punitive damages would be an issue in the case; the jury instructions were unambiguous; petitioners had ample opportunity to object; they failed to do so, without offering any reason or excuse.8 Whether their default was negligent or tactical, they have no cause now to complain. If these petitioners' default is to be excused, whose should not? If Rule 51 is to be disregarded in this case, when should it be enforced?
64
I dissent.
1
Fact Concerts, Inc. entered into a joint venture with respondent Marvin Lerman, a promoter, to produce the jazz concerts that gave rise to this lawsuit. For convenience, we refer to the corporation as the respondent.
2
The individual petitioners are the Mayor of Newport and the other six members of the City Council. Because their claims are not before us, we refer to the city as petitioner. See n. 7, infra.
3
Contemporary press accounts attributed to the Council members a "fear of attracting 'long-haired hangers-on.' " 1 R. A. 87-A.
4
Testimony at the trial indicated that in fact substantial compliance had been achieved. Id., at 101-102; 2 R. A. 136-137, 141-142, 201. The Director of the Rhode Island Department of Natural Resources, who also visited the site on Friday afternoon, stated that respondent's preparations were satisfactory for health and safety purposes. Id., at 159. He said that he informed the City Manager that the criticisms offered were "picayune," id., at 157 (although this characterization, upon objection, was stricken by the trial judge, ibid.), and "frivolous," id., at 179. The Director offered to attend the second Council meeting to assist in any way possible, but was told by the Mayor and the City Manager that he was not needed. Id., at 158.
5
See App. 57-58 (instructing on basis for award of punitive damages). Compensatory damages were to be awarded as a single sum against all defendants found liable. Id., at 62.
6
The jury assessed 75% of the punitive damages upon the § 1983 claim and 25% upon the state-law claim. 3 R. A. 594-595. We do not address the propriety of the punitive damages awarded against petitioner under Rhode Island law.
7
In addition to challenging the punitive damages award against the city, the defendants sought review of all aspects of the jury verdict as well as numerous rulings made by the District Judge during the trial. Both the District Court and the Court of Appeals determined that respondent had stated valid claims for relief under federal and state law, that the individual defendants were entitled only to qualified good-faith immunity, that respondent had proved its case against each individual defendant, and that objections to the cross-examination of one of the Council members were without merit. Although petitioner sought certiorari on some of these issues, we granted the writ to consider only the question of the availability of punitive damages against a municipality under § 1983. Thus, in all other respects, the findings and conclusions of the lower courts are left undisturbed.
8
The court, however, went on to rule that the $200,000 award against petitioner was excessive and unjust. App. to Pet. for Cert. B-12 to B-13. It ordered a remittitur, reducing the punitive damages award to $75,000. Respondent accepted the remittitur without objection. App. 68.
9
Rule 51 reads in pertinent part:
"No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection."
10
See 5A J. Moore & J. Lucas, Moore's Federal Practice ¶ 51.04, n. 3 (1980); 9 C. Wright & A. Miller, Federal Practice and Procedure § 2553 (1971).
11
The District Judge, after observing that the city had failed to object in timely fashion to the punitive damages instruction, stated: "Despite [petitioner's] tardiness, a careful resolution of this novel question is critical to a just verdict in this case." App. to Pet. for Cert. B-7. This statement makes clear that that court did not reach the merits merely as an alternative ground for decision or out of an abundance of caution. The dissent's suggestion to the contrary, post, at 273, 276, is simply mistaken.
12
The District Court may have been influenced by the unusual nature of the instant situation. Ordinarily, an error in the charge is difficult, if not impossible, to correct without retrial, in light of the jury's general verdict. In this case, however, we deal with a wholly separable issue of law, on which the jury rendered a special verdict susceptible of rectification without further jury proceedings.
13
See, e. g., Morris v. Travisono, 528 F.2d 856, 859 (CA1 1976); Williams v. City of New York, 508 F.2d 356, 362 (CA2 1974); Troupe v. Chicago D. & G. Bay Transit Co, 234 F.2d 253, 259-260 (CA2 1956). But. cf. Moore v. Telfon Communications Corp., 589 F.2d 959, 966 (CA9 1978).
14
The issue already has arisen on several occasions. Compare Hild v. Bruner, 496 F.Supp. 93, 99-100 (NJ 1980), and Flores v. Hartford Police Dept., 25 FEP Cases 180, 193 (Conn.1981), with Edmonds v. Dillin, 485 F.Supp. 722, 729-730 (ND Ohio 1980). See also Valcourt v. Hyland, 503 F.Supp. 630, 638-640 (Mass.1980).
15
The Court's exercise of power in these circumstances is no more broad than its notice of plain error not presented by the parties, see this Court's Rule 34.1(a); Washington v. Davis, 426 U.S. 229, 238, 96 S.Ct. 2040, 2046, 48 L.Ed.2d 597 (1976); Silber v. United States, 370 U.S. 717, 718, 82 S.Ct. 1287, 1288, 8 L.Ed.2d 798 (1962), or its deciding a question not raised in the lower federal courts, see Carlson v. Green, 446 U.S. 14, 17, n. 2, 100 S.Ct. 1468, 1471, n. 2, 64 L.Ed.2d 15 (1980), or its review of an issue neither decided below nor presented by the parties, see Wood v. Georgia, 450 U.S. 261, 265 n. 5, 101 S.Ct. 1097, 1100, n. 5, 67 L.Ed.2d 220 (1981); Youakim v. Miller, 425 U.S. 231, 234, 96 S.Ct. 1399, 1401, 47 L.Ed.2d 701 (1976).
16
Accordingly, we find it unnecessary to determine whether the Court of Appeals relied exclusively on the plain-error doctrine in affirming the District Court's judgment. While concluding that in this unusual case, the interest of justice warrants our plenary consideration, see 28 U.S.C. § 2106, we express no view regarding the application of the plain-error doctrine by the Courts of Appeals.
17
"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." Rev.Stat. § 1979, 42 U.S.C. § 1983.
18
E. g., Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976) (state prosecutor); Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (state executive); Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967) (state judge); Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951) (state legislator).
19
Local units of government initially were shielded from tort liability by the doctrine of sovereign immunity. Russell v. Men of Devon, 2 T.R. 667, 100 Eng.Rep. 359 (K.B. 1788). See F. Burdick, Law of Torts § 21 (4th ed. 1926). Subsequently, the municipal entity was bifurcated, for purposes of immunity, into sovereign and proprietary spheres of conduct. Bailey v. Mayor of New York, 3 Hill 531 (N.Y.Sup.Ct.1842), aff'd, 2 Denio 433 (1845). See W. Williams, Liability of Municipal Corporations for Tort § 4 (1901). See generally Owen, 445 U.S., at 640-650, 100 S.Ct., at 1410-1415; Monell, 436 U.S., at 687-689, 98 S.Ct., at 2034-2035.
20
Although occasionally courts have suggested in dictum that punitive damages might be awarded in appropriate circumstances, see Wallace v. Mayor, etc., of New York, 18 How. 169, 176 (N.Y.Com.Pl.1859); Herfurth v. Corporation of Washington, 6 D.C. 288, 293 (1868), we have been directed to only one reported decision prior to 1871 in which an award of punitive damages against a municipality was upheld, and that decision was expressly overruled in 1870. Whipple v. Walpole, 10 N.H. 130, 132-133 (1839), overruled by Woodman v. Nottingham, 49 N.H. 387, 394 (1870).
21
E. g., Lauer v. Young Men's Christian Ass'n of Honolulu, 57 Haw. 390, 557 P.2d 1334 (1976); Ranells v. City of Cleveland, 41 Ohio St.2d 1, 321 N.E.2d 885 (1975); Smith v. District of Columbia, 336 A.2d 831 (D.C.App.1975); Fisher v. City of Miami, 172 So.2d 455 (Fla.1965); Brown v. Village of Deming, 56 N.M. 302, 243 P.2d 609 (1952); Town of Newton v. Wilson, 128 Miss. 726, 91 So. 419 (1922); Willett v. Village of St. Albans, 69 Vt. 330, 38 A. 72 (1897). See Annot., 19 A.L.R.2d 903-920 (1951); 57 Am.Jur.2d, Municipal, School, and State Tort Liability §§ 318, 319 (1971). The general rule today is that no punitive damages are allowed unless expressly authorized by statute. 18 E. McQuillin, Municipal Corporations, § 53.18a (3d rev. ed. 1977); Hines, Municipal Liability for Exemplary Damages, 15 Clev.-Mar.L.Rev. 304 (1966).
22
This statute is strikingly similar to the Sherman amendment to the Civil Rights Act of 1871, discussed infra. See Cong. Globe, 42d Cong., 1st Sess., 663, 749, 755 (1871) (Globe). The Pennsylvania statute was cited as a model during the legislative debates. Id., at 777 (Sen. Frelinghuysen).
23
In the face of this history, respondent acknowledged at oral argument that in 1871 the common law did not contemplate the imposition of punitive damages against municipalities, but contended that the functional equivalent was achieved through the respondeat superior liability to which municipalities were, and still are, exposed. Tr. of Oral Arg. 29. Apparently, respondent argues that because municipalities were liable for the conduct of their agents, including conduct over which their executive officials had no actual responsibility or knowledge, it would have been unnecessary to expose them to punitive damages with regard to the same conduct. This argument, however, does not alter the persuasiveness of the prevalent common-law immunity; if anything, it goes to the soundness of the common-law defense at that time and now. Moreover, the respondeat superior doctrine did not cover all instances in which the municipality could assert immunity in its own capacity. E. g., City Council of Montgomery v. Gilmer & Taylor; McGary v. President & Council of Lafayette. See G. Field, Law of Damages § 80 (1876) ("[Municipal corporations] cannot, as such, be supposed capable of doing a criminal act, or a willful and malicious wrong, and therefore cannot be liable for exemplary damages . . .").
24
The legislative background of § 1983 is exhaustively addressed in Monell, 436 U.S., at 664-695, 98 S.Ct., at 2022, 2038. Briefly, the Sherman amendment was a proposed addition to the statute, and was defended by its sponsor as an attempt to enlist the aid of persons of property in suppressing the lawless violence of the Ku Klux Klan. See Globe, at 760-761. In its initial form, the amendment imposed liability on any inhabitant of a municipality for damage inflicted by persons "riotously and tumultuously assembled." Id., at 663, 98 S.Ct., at 2021. That version was passed by the Senate but overwhelmingly rejected by the House. Id., at 704-705, 725, 98 S.Ct., at 2042-2043, 2053. A first conference substitute was then proposed. Id., at 749, 755. The substitute version placed liability directly on the local government, regardless of whether the municipality had had notice of the impending riot, had made reasonable efforts to stop it, or was even authorized under state law to exercise police power. See Monell, 436 U.S., at 668, 98 S.Ct., at 2024. The conference substitute also created a lien which ran against "all moneys in the treasury," thus permitting execution against public property such as jails and courthouses. It was generally understood that the extent of the proposed public liability went beyond what was contemplated under § 1. After much debate, the amendment passed the Senate but was again rejected by the House. Globe, at 779, 800-801. It is from the debate over the first conference substitute that we glean "clue[s]" as to Congress' views on municipal liability. Monell, 436 U.S., at 692, n. 57, 98 S.Ct., at 2036, n. 57.
25
The same language appears in the original version of the amendment, Globe, at 663, although there it was the inhabitants and not the government that were made liable. See n. 24, supra.
26
See ibid. In its final version, the amendment abandoned all specific references to municipal liability. Globe, at 804. See Monell, 436 U.S., at 668-669, 98 S.Ct., at 2024-2025. See generally, Avins, The Ku Klux Klan Act of 1871: Some Reflected Light on State Action and the Fourteenth Amendment, 11 St. Louis U. L. J. 331, 368-376 (1967).
27
Representative Blair, a strong proponent of § 1, argued that the obligations imposed by the amendment might "utterly destroy the municipality." Globe, at 795. Representative Bingham, who had drafted § 1 of the Fourteenth Amendment, feared that the burden upon the local treasury under the Sherman amendment would "deprive the county of the means of administering justice." Id., at 798. See also id., at 762 (Sen. Stevenson); id., at 763-764 (Sen. Casserly); id., at 772 (Sen. Thurman; id., at 789 (Rep. Kerr).
28
Senator Stevenson declared that the amendment "undertakes to create a corporate liability for personal injury which no prudence or foresight could have prevented." Id., at 762. Senator Frelinghuysen objected to the proposed liability, observing that "the town or the county has committed no crime." Id., at 777. Representatives Poland and Willard also referred to the injustice of such liability, id., at 791 (Rep. Willard); id., at 794 (Rep. Poland). See also id., at 771 (Sen. Thurman); id., at 775 (Sen. Bayard); id., at 788 (Rep. Kerr).
29
It is perhaps possible to imagine an extreme situation where the taxpayers are directly responsible for perpetrating an outrageous abuse of constitutional rights. Nothing of that kind is presented by this case. Moreover, such an occurrence is sufficiently unlikely that we need not anticipate it here.
30
A number of state statutes requiring municipal corporations to indemnify their employees for adverse judgments rendered as a result of performance of governmental duties specifically exclude indemnification for malicious or willful misconduct by the employees. E. g., N.Y.Gen.Mun.Law § 50-k(3) (McKinney Supp.1980-1981); Pa.Stat.Ann., Tit. 42, § 8550 (Purdon Supp.1981); Cal.Gov't Code Ann. § 825 (West 1980); Conn.Gen.Stat. § 7-465 (1981); Nev.Rev.Stat. § 41.0349 (1979). See Karas v. Snell, 11 Ill.2d 233, 142 N.E.2d 46 (1957). See generally Messersmith v. American Fidelity Co., 232 N.Y. 161, 165, 133 N.E. 432, 433 (1921) (Cardozo, J.) ("[N]o one shall be permitted to take advantage of his own wrong . . ."). Commentators have encouraged this development. See G. Calabresi, The Costs of Accidents 269-270 (student ed. 1970); Project, Suing the Police in Federal Court, 88 Yale L.J. 780, 818 (1979).
31
See Restatement (Second) of Torts § 908(2) (1979); D. Dobbs, Law of Remedies § 3.9, pp. 218-219 (1973).
32
The case at bar appears to be an example of undue and substantial impact, since the jury award of $200,000 was more than twice the total amount of punitive damages assessed against all the defendant city officials individually. In reducing the award, the District Judge said that this verdict "is excessive, against the weight of the evidence, and fails to comport with substantial justice," and that it "was both unreasonable and devoid of firm support in the record." App. to Pet. for Cert. B-10.
1
In contrast, counsel for respondents made two objections to the instructions, which the Court indicated it would consider before the jury retired. R.A. 591-A to 591-B.
2
Respondents also argue, on the merits, that the punitive damages instruction was correct. Because I conclude that the Court of Appeals should be affirmed on a procedural ground, I need not consider this additional argument, except to observe that the Court's treatment of it may well reflect the absence of full consideration of the punitive damages question by the court below.
The Court thus relies on 19th-century case law for the proposition that municipalities may not be held liable for punitive damages, without distinguishing between the common situation in which municipal liability is predicated on a theory of respondeat superior, and the more unusual situation in which the violation is committed in accordance with official governmental policy. See ante, at 259-263. Only in the latter situation have we held that a municipality may be sued under § 1983, Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690-691, 98 S.Ct. 2018, 2035-2036, 56 L.Ed.2d 611 (1978). It is in the latter context that the Court's cited precedent is least relevant, and that its concern for "blameless or unknowing taxpayers," ante, at 267, is least compelling. Indeed, when the elected representatives of the people adopt a municipal policy that violates the Constitution, it seems perfectly reasonable to impose punitive damages on those ultimately responsible for the policy—the citizens.
3
See, e. g., cases cited in 5A J. Moore & J. Lucas, Moore's Federal Practice ¶ 51.04, pp. 51-9 to 51-18, n. 3 (1980); 9 C. Wright & A. Miller, Federal Practice and Procedure § 2553, p. 639, nn. 51-52 (1971).
4
This Court has considered issues not raised in the courts below only in "exceptional cases or particular circumstances . . . where injustice might otherwise result." Hormel v. Helvering, 312 U.S., at 557, 61 S.Ct., at 721. Thus, in Wood v. Georgia, the issue of attorney conflict-of-interest could scarcely have been raised by the attorney whose conflict was under challenge. 450 U.S., at 265, n. 5, 101 S.Ct., at 1100, n. 5. In Carlson v. Green, both parties consented to waiver of the procedural default, and the issue was closely related to the other main question in the case. Thus, fairness to the parties and sound judicial administration were promoted by the Court's decision to reach the issue. 446 U.S., at 17, n. 2, 100 S.Ct., at 1471, n. 2.
5
The Court declines to express any opinion on the plain-error doctrine as it has been applied by the Court of Appeals. Ante, at 257, n 16. It is difficult to understand how the Court can purport to avoid this question, when it vacates a judgment predicated squarely on that doctrine. Nevertheless, I will join with the Court in leaving open the issue of the scope of exceptions to Rule 51, if any, to another day. For the purpose of this opinion, it is sufficient to conclude that exceptions to Rule 51 are no broader than those recognized by the Court of Appeals.
6
It is not uncommon for courts to reach the merits as an alternative ground for decision on an issue otherwise unreviewable under Rule 51, either out of an excess of caution or as part of a plain-error inquiry. See, e. g., Kropp v. Ziebarth, 601 F.2d 1348, 1355-1356 (CA8 1979); Mid-America Food Service, Inc. v. ARA Services, Inc., 578 F.2d 691, 695-700 (CA8 1978); Bilancia v. General Motors Corp., 538 F.2d 621, 623 (CA4 1976). Surely the Court does not mean to suggest that a party may obtain appellate review of an unchallenged jury instruction merely because the court offered such alternative grounds for decision.
7
In effect, without defining or explaining it, the Court has carved out an expansive exception to the requirements of Rule 51. I suspect that the Court has not considered the broad repercussions of its treatment of the procedural default in this case, or the incongruity of its result in light of parallel procedural requirements in the criminal area. The Federal Rules of Criminal Procedure, which contain a provision—similar to Rule 51—that "[n]o party may assign as error any portion of the charge of omission therefrom unless he objects thereto before the jury retires to consider its verdict," Fed.Rule Crim.Proc. 30, also contain another provision: "Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." Fed.Rule Crim.Proc. 52(b). The absence of a similar provision in the Civil Rules suggests that review of unchallenged jury instructions is intended to be more restrictive under the Civil than under the Criminal Rules. The Court's conclusion that petitioners' claim in this civil case should be heard despite the absence of plain error thus inverts the Rules, in violation of their spirit as well as their letter.
Similarly, certain procedural defaults in state and federal criminal trials preclude federal habeas relief in the absence of "cause" and "prejudice." See Wainwright v. Sykes, 433 U.S. 72, 90-91, 97 S.Ct. 2497, 2508-2509 (1977); Davis v. United States, 411 U.S. 233, 242-245, 93 S.Ct. 1577, 1582-1584, 36 L.Ed.2d 216 (1973). The Court's conclusion that petitioners' claim should be heard despite the absence of any claim of "cause" and "prejudice" thus suggests that the courts should be stricter in enforcing procedural rules against prisoners facing incarceration than against civil defendants facing money judgments. The Court's priorities seem backwards to me.
8
Petitioners have apparently abandoned their argument that the lack of a developed legal doctrine on municipal liability under § 1983 "mitigates the error" of their trial counsel. Pet. for Cert. 9.
| 12
|
453 U.S. 156
101 S.Ct. 2698
69 L.Ed.2d 548
John F. LEHMAN, Secretary of the Navy, Petitioner,v.Alice NAKSHIAN.
No. 81-242.
Argued March 31, 1981.
Decided June 26, 1981.
Syllabus
The Age Discrimination in Employment Act of 1967 (ADEA or Act) was amended in 1974 to extend to federal employees the Act's protection of older workers against discrimination in the workplace based on age. Section 15(c) of the Act provides that any aggrieved federal employee "may bring a civil action in any Federal district court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes" of the Act. Respondent federal employee brought suit in Federal District Court against the Secretary of the Navy under § 15(c), alleging violations of the Act and demanding a jury trial. The District Court ruled, over the Secretary's objection, that respondent was entitled to a jury trial. On an interlocutory appeal, the Court of Appeals affirmed.
Held : Respondent was not entitled to a jury trial. Pp. 160-169.
(a) Where Congress waives the Government's immunity from suit, as it has in the ADEA, the plaintiff has a right to a trial by jury only where Congress has affirmatively and unambiguously granted that right by statute. Pp. 160-161.
(b) Congress has not done so here. Neither the provision in § 15(c) for federal employer cases to be brought in Federal district courts rather than the Court of Claims, nor the use of the word "legal" in that section, evinces a congressional intent that ADEA plaintiffs who proceed to trial against the Federal Government may do so before a jury. Lorillard v. Pons, 434 U.S. 575, 98 S.Ct. 866, 55 L.Ed.2d 40, distinguished. Section 15(c) contrasts with § 7(c) of the Act, which expressly provides for jury trials in actions against private employers and state and local governments. Moreover, in extending the Act to cover federal employees, Congress based the provision not on the Fair Labor Standards Act as was § 7, but on Title VII of the Civil Rights Act of 1964, where, unlike the FLSA, there was no right to trial by jury. Pp. 162-165.
(c) The legislative history no more supports a holding that respondent has a right to a jury trial than does the statutory language itself. Pp. 165-168.
202 U.S.App.D.C. 59, 628 F.2d 59, reversed.
Edwin S. Kneedler, Washington, D.C., for petitioner.
Patricia J. Barry, Washington, D.C., for respondent.
Justice STEWART delivered the opinion of the Court.
1
The question presented by this case is whether a plaintiff in an action against the United States under § 15(c) of the Age Discrimination in Employment Act is entitled to trial by jury.
2
* The 1974 amendments to the Age Discrimination in Employment Act of 19671 added a new § 15,2 which brought the Federal Government within the scope of the Act for the first time. Section 15(a)3 prohibits the Federal Government from discrimination based on age in most of its civilian employment decisions concerning persons over 40 years of age. Section 15(b)4 provides that enforcement of § 15(a) in most agencies, including military departments, is the responsibility of the Equal Employment Opportunity Commission. The Commission is directed to "issue such rules, regulations, orders and instructions as [the Commission] deems necessary and appropriate" to carry out that responsibility. Section 15(c)5 provides:
3
"Any person aggrieved may bring a civil action in any Federal district court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of this Act." 88 Stat. 75.
4
In 1978, respondent Alice Nakshian, who was then a 62-year-old civilian employee of the United States Department of the Navy, brought an age discrimination suit against the Navy under § 15(c). She requested a jury trial. The defendant moved to strike the request, and the District Court denied the motion. Nakshian v. Claytor, 481 F.Supp. 159 (DC). The court stressed that the "legal or equitable relief" language used by Congress to establish a right to sue the Federal Government for age discrimination was identical to the language Congress had previously used in § 7(c) of the Act6 to authorize private ADEA suits. That language, the District Court said, was an important basis for this Court's holding in Lorillard v. Pons, 434 U.S. 575, 98 S.Ct. 866, 55 L.Ed.2d 40, that § 7(c) permits jury trials in private suits under the Act. The court stated that "if Congress had intended its consent to ADEA suits [against the Government] to be limited to non-jury trials, it could have easily said as much." 481 F.Supp., at 161. Recognizing that as a result of 1978 amendments to the ADEA § 7(c)(2) expressly confers a right to jury trial, whereas no such language exists in § 15,7 481 F.Supp., at 161, the court found no "explicit refusal" by Congress to grant the right to jury trial against the Government, and noted that the legislative history of the 1978 amendments spoke in general terms about a right to jury trial in ADEA suits.
5
On interlocutory appeal under 28 U.S.C. § 1292(b), a divided panel of the Court of Appeals affirmed, Nakshian v. Claytor, 202 U.S.App.D.C. 59, 628 F.2d 59. The appellate court rejected the Secretary's argument that a plaintiff is entitled to trial by jury in a suit against the United States only when such a trial has been expressly authorized. Instead, the court viewed the question as "an ordinary question of statutory interpretation," and found sufficient evidence of legislative intent to provide for trial by jury in cases such as this. Noting that Congress had conferred jurisdiction over ADEA suits upon the federal district courts, rather than the Court of Claims, the Court of Appeals concluded that " 'absent a provision as to the method of trial, a grant of jurisdiction to a district court as a court of law carries with it a right of jury trial.' " Id., at 63, 628 F.2d, at 63 (quoting 5 J. Moore, J. Lucas, & J. Wicker, Moore's Federal Practice ¶ 38.32[2], p. 38-236 (1979) (footnotes omitted). The Court of Appeals also adopted the District Court's view of the "legal . . . relief" language in § 15(c). Further, it was the court's view that the existence of the explicit statutory right to jury trial in suits against private employers does not negate the existence of a right to jury trial in suits against the Government, since the provision for jury trials in private suits was added only to resolve a conflict in the Court of Appeals on that issue and to confirm the correctness of this Court's decision in the Lorillard case.
6
We granted certiorari to consider the issue presented. Sub nom. Hidalgo v. Nakshian, 449 U.S. 1009, 101 S.Ct. 563, 66 L.Ed.2d 467.
II
7
It has long been settled that the Seventh Amendment right to trial by jury does not apply in actions against the Federal Government. In Galloway v. United States, 319 U.S. 372, 388-389, 63 S.Ct. 1077, 1086, 87 L.Ed. 1458, the Court observed (footnotes omitted):
8
"The suit is one to enforce a monetary claim against the United States. It hardly can be maintained that under the common law in 1791 jury trial was a matter of right for persons asserting claims against the sovereign. Whatever force the Amendment has therefore is derived because Congress, in the legislation cited, has made it applicable."
9
See also Glidden Co. v. Zdanok, 370 U.S. 530, 572, 82 S.Ct. 1459, 1484, 8 L.Ed.2d 671, McElrath v. United States, 102 U.S. 426, 440, 26 L.Ed. 189. Moreover, the Court has recognized the general principle 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. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114; quoting United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058. See also United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1352, 63 L.Ed.2d 607. Thus, if Congress waives the Government's immunity from suit, as it has in the ADEA, 29 U.S.C. § 633a (1976 ed. and Supp. III), the plaintiff has a right to a trial by jury only where that right is one of "the terms of [the Government's] consent to be sued." Testan, supra, at 399, 96 S.Ct., at 953. Like a waiver of immunity itself, which must be "unequivocally expressed." United States v. Mitchell, supra, at 538, 100 S.Ct., at 1352, quoting United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1502, 23 L.Ed.2d 52, "this Court has long decided that limitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied." Soriano v. United States, 352 U.S. 270, 276, 77 S.Ct. 269, 273, 1 L.Ed.2d 306. See also United States v. Kubrick, 444 U.S. 111, 117-118, 100 S.Ct. 352, 357, 62 L.Ed.2d 259; United States v. Sherwood, supra, at 590-591, 61 S.Ct., at 771-772.
10
When Congress has waived the sovereign immunity of the United States, it has almost always conditioned that waiver upon a plaintiff's relinquishing any claim to a jury trial. Jury trials, for example, have not been made available in the Court of Claims for the broad range of cases within its jurisdiction under 28 U.S.C. § 1491—i. e., all claims against the united stateS "foUnded either upon the Constitution, or any Act of Congress, . . . or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort." See Glidden Co., supra. And there is no jury trial right in this same range of cases when the federal district courts have concurrent jurisdiction. See 28 U.S.C. §§ 1346(a)(2) and 2402. Finally, in tort actions against the United States, see 28 U.S.C. § 1346(b), Congress has similarly provided that trials shall be to the court without a jury. 28 U.S.C. § 2402.8
11
The appropriate inquiry, therefore, is whether Congress clearly and unequivocally departed from its usual practice in this area, and granted a right to trial by jury when it amended the ADEA.9
12
Section 15 of the ADEA, 29 U.S.C. § 633a (1976 ed. and Supp. III), prohibits age discrimination in federal employment. Section 15(c) provides the means for judicial enforcement of this guarantee: any person aggrieved "may bring a civil action in any Federal district court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes" of the Act. Section 15 contrasts with § 7(c) of the Act, 29 U.S.C. § 626(c) (1976 ed., Supp. III), which authorizes civil actions against private employers and state and local governments, and which expressly provides for jury trials. Congress accordingly demonstrated that it knew how to provide a statutory right to a jury trial when it wished to do so elsewhere in the very "legislation cited," Galloway, supra, at 389, 63 S.Ct., at 1086. But in § 15 it failed explicitly to do so.10 SeeFedorenko v. United States, 449 U.S. 490, 512-513, 101 S.Ct. 737, 750-751, 66 L.Ed.2d 686, cf. Monroe v. Standard Oil Co., 452 U.S. 549, 561, 101 S.Ct. 2510, 2517, 69 L.Ed.2d 226.
13
The respondent infers statutory intent from the language in § 15(c) providing for the award of "legal or equitable relief," relying on Lorillard v. Pons, 434 U.S. 575, 98 S.Ct. 866, 55 L.Ed.2d 40, for the proposition that the authorization of "legal" relief supports a statutory jury trial right. But Lorillard has no application in this context. In the first place, the word "legal" cannot be deemed to be what the Lorillard Court described as "a term of art" with respect to the availability of jury trials in cases where the defendant is the Federal Government. In Lorillard, the authorization for the award of "legal" relief was significant largely because of the presence of a constitutional question. The Court observed that where legal relief is granted in litigation between private parties, the Seventh Amendment guarantees the right to a jury, and reasoned that Congress must have been aware of the significance of the word "legal" in that context. But the Seventh Amendment has no application in actions at law against the Government, as Congress and this Court have always recognized. Thus no particular significance can be attributed to the word "legal" in § 15(c).
14
Moreover, another basis of the decision in Lorillard was that when Congress chose to incorporate the enforcement scheme of the Fair Labor Standards Act (FLSA) into § 7 of the ADEA, it adopted in ADEA the FLSA practice of making jury trials available. 434 U.S., at 580-583, 98 S.Ct., at 869-871. Again, that reasoning has no relevance to this case, because Congress did not incorporate the FLSA enforcement scheme into § 15. See 29 U.S.C. § 633a(f) (1976 ed., Supp. III). Rather, §§ 15(a) and (b) are patterned after §§ 717(a) and (b) of the Civil Rights Act of 1964, as amended in March 1972, see Pub.L.92-261, 86 Stat. 111-112, which extend the protection of Title VII to federal employees. 42 U.S.C. §§ 2000e-16(a) and (b). See 118 Cong.Rec. 24397 (1972) (remarks of Sen. Bentsen, principal sponsor of § 15 of ADEA). And, of course, in contrast to the FLSA,11 there is no right to trial by jury in cases arising under Title VII. See Lorillard, supra, at 583-584, 98 S.Ct., at 871-872; Great American Federal Savings & Loan Assn. v. Novotny, 442 U.S. 366, 375, and n. 19, 99 S.Ct. 2345, 2350, and n. 19, 60 L.Ed.2d 957.
15
The respondent also infers a right to trial by jury from the fact that Congress conferred jurisdiction over ADEA suits upon the federal district courts, where jury trials are ordinarily available, rather than upon the Court of Claims, where they are not. Not only is there little logical support for this inference, but the legislative history offers no support for it either.12 Moreover, Rule 38(a) of the Federal Rules of Civil Procedure provides that the right to a jury trial "as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States shall be preserved to the parties inviolate" (emphasis added). This language hardly states a general rule that jury trials are to be presumed whenever Congress provides for cases to be brought in federal district courts.13 Indeed, Rule 38(a) requires an affirmative statutory grant of the right where, as in this case, the Seventh Amendment does not apply.
B
16
As already indicated, it is unnecessary to go beyond the language of the statute itself to conclude that Congress did not intend to confer a right to trial by jury on ADEA plaintiffs proceeding against the Federal Government. But it is helpful briefly to explore the legislative history, if only to demonstrate that it no more supports the holding of the Court of Appeals than does the statutory language itself.
17
The respondent cannot point to a single reference in the legislative history to the subject of jury trials in cases brought against the Federal Government. There is none. And there is nothing to indicate that Congress did not mean what it plainly indicated when it expressly provided for jury trials in § 7(c) cases but not in § 15(c) cases. In fact, the few inferences that may be drawn from the legislative history are inconsistent with the respondent's position.
18
The ADEA originally applied only to actions against private employers. Section 7 incorporated the enforcement scheme used in employee actions against private employers under the FLSA. In Lorillard, the Court found that the incorporation of the FLSA scheme into § 7 indicated that the FLSA right to trial by jury should also be incorporated. The Lorillard holding was codified in 1978 when § 7(c) was amended to provide expressly for jury trials in actions brought under that section.
19
Congress expanded the scope of ADEA in 1974 to include state and local governments and Federal Government employers. State and local governments were added as potential defendants by a simple expansion of the term "employer" in the ADEA. The existing substantive and procedural provisions of the Act, including § 7(c), were thereby extended to cover state and local government employees. In contrast, Congress added an entirely new section, § 15, to address the problems of age discrimination in federal employment. Here Congress deliberately prescribed a distinct statutory scheme applicable only to the federal sector,14 and one based not on the FLSA but, as already indicated, on Title VII,15 where, unlike the FLSA, there was no right to trial by jury.16
20
Finally, in a 1978 amendment to ADEA, Congress declined an opportunity to extend a right to trial by jury to federal employee plaintiffs. Before the announcement of Lorillard, the Senate, but not the House, had included an amendment to § 7(c) to provide for jury trials in a pending bill to revise ADEA. After Lorillard, the Conference Committee recommended and Congress enacted the present § 7(c)(2), closely resembling the jury trial amendment passed by the Senate. But the Conference did not recommend, and Congress did not enact, any corresponding amendment of § 15(c) to provide for jury trials in cases against the Federal Government. Indeed, the conferees recommended and Congress enacted a new § 15(f), 29 U.S.C. § 633a(f) (1976 ed., Supp. III), providing that federal personnel actions covered by § 15 are not subject to any other section of ADEA, with one exception not relevant here. See H.R.Conf.Rep.No.95-950, p. 11 (1978), U.S.Code Cong. & Admin.News 1978, p. 504. See also H.R.Rep.No.95-527, p. 11 (1977) ("Section 15 . . . is complete in itself"). Since the new subsection (f) clearly emphasized that § 15 was self-contained and unaffected by other sections, including those governing procedures applicable in actions against private employers, Judge Tamm, dissenting in the Court of Appeals, was surely correct when he concluded that "[i]n amending both sections as it did, Congress could not have overlooked the need to amend [§ 15(c)] to allow jury trials for government employees if it had so wished." 202 U.S.App.D.C., at 69, n. 8, 628 F.2d, at 69, n. 8.
C
21
But even if the legislative history were ambiguous, that would not affect the proper resolution of this case, because the plaintiff in an action against the United States has a right to trial by jury only where Congress has affirmatively and unambiguously granted that right by statute. Congress has most obviously not done so here. Neither the provision for federal employer cases to be brought in district courts rather than the Court of Claims, nor the use of the word "legal" in that section, evinces a congressional intent that ADEA plaintiffs who proceed to trial against the Federal Government may do so before a jury. Congress expressly provided for jury trials in the section of the Act applicable to private-sector employers, and to state and local governmental entities. It did not do so in the section applicable to the Federal Government as an employer, and indeed, patterned that section after provisions in another Act under which there is no right to trial by jury. The conclusion is inescapable that Congress did not depart from its normal practice of not providing a right to trial by jury when it waived the sovereign immunity of the United States.
22
For these reasons, the judgment of the Court of Appeals is reversed.
23
It is so ordered.
24
Justice BRENNAN, with whom Justice MARSHALL, Justice BLACKMUN, and Justice STEVENS join, dissenting.
25
In Lorillard v. Pons, 434 U.S. 575, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978), this Court held that an employee who brings an action against his private employer under § 7(c) of the Age Discrimination in Employment Act (ADEA or Act), 29 U.S.C. § 626(c), is entitled to trial by jury. The question presented in this case is whether a plaintiff has a right to trial by jury in an action against the Federal Government under § 15(c) of the ADEA, 29 U.S.C. § 633a(c). The Court today holds that a jury trial is not available in such actions. Because I believe that Congress unmistakably manifested its intention to accord a jury trial right, I dissent.
26
* Respondent brought this lawsuit in the United States District Court for the District of Columbia against the Secretary of the Navy, alleging violations of the ADEA. She demanded a jury trial, and the Secretary moved to strike that demand. The District Court denied the motion to strike but certified for interlocutory appeal the question whether a jury trial is available in an ADEA action against the Federal Government. See 28 U.S.C. § 1292(b). The Court of Appeals granted the Secretary's petition for interlocutory review and affirmed the ruling of the District Court that respondent is entitled to a jury trial. Nakshian v. Claytor, 202 U.S.App.D.C. 59, 628 F.2d 59 (1980). Relying principally on the fact that Congress vested jurisdiction over ADEA suits against the Federal Government in the federal district courts rather than in the Court of Claims and on the authorization in § 15 (c)he Act for the award of "legal and equitable relief," the Court of Appeals construed the statute to accord a jury trial.
II
27
It is well settled that the "United States, as sovereign, 'is immune from suit save as it consents to be sued.' " United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976), quoting United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941). Consent to suit by the United States must be "unequivocally expressed." United States V. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1352, 63 L.Ed.2d 607 (1980); United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1502, 23 L.Ed.2d 52 (1969). In the ADEA, the United States has expressly waived its immunity, 29 U.S.C. § 633a (1976 ed. and Supp. III), so that there can be no doubt of its consent to be sued. The requirement that a waiver of immunity be unequivocally expressed, however, does not, as the Court suggests, carry with it a presumption against jury trial in cases where the United States has waived its immunity. Indeed, we have previously declined to adopt such a presumption. See Law v. United States, 266 U.S. 494, 45 S.Ct. 175, 69 L.Ed. 401 (1925); United States v. Pfitsch, 256 U.S. 547, 41 S.Ct. 569, 65 L.Ed. 1084 (1921).1 Moreover, the Court's view that there is a presumption against jury trials in suits against the Federal Government is belied by the very statutes that it cites to indicate that Congress has often "conditioned [the] waiver [of immunity] upon a plaintiff's relinquishing any claim to a jury trial." Ante, at 161. The fact that Congress has found it necessary to state expressly that there is no jury trial right in a broad range of cases against the Government, see 28 U.S.C. §§ 1346, 2402, demonstrates that Congress does not legislate against the backdrop of any presumption against a jury trial right in suits against the United States. I believe, therefore, that once the Government unequivocally waives its immunity from suit, the plaintiff's right to jury trial is a question of statutory construction.2 The proper inquiry is whether the statute expressly or by fair implication provides for a jury trial.3 See Law v. United States, supra; United States v. Pfitsch, supra; 5 J. Moore, J. Lucas, & J. Wicker, Moore's Federal Practice ¶ 38.31[2], p. 38-237 (1981); 9 C. Wright & A. Miller, Federal Practice and Procedure § 2314, p. 69 (1971). I turn, therefore, to the statute itself.
28
Congress passed the ADEA in 1967 to protect older workers against discrimination in the workplace on the basis of age. See 29 U.S.C. §§ 621(b), 623; Oscar Mayer & Co. v. Evans, 441 U.S. 750, 756, 99 S.Ct. 2066, 2071, 60 L.Ed.2d 609 (1979); Lorillard v. Pons, 434 U.S., at 577, 98 S.Ct., at 868. See generally Note, Age Discrimination in Employment, 50 N.Y.U.L.Rev. 924, 945 (1975). The Act's protection was originally limited to employees in the private sector, see Pub.L.90-202, § 11, 81 Stat. 605, 29 U.S.C. § 630(b) (1970 ed.),4 but Congress amended the Act in 1974 by adding § 15, which extended protection to federal employees as well. 29 U.S.C. § 633a. Section 15(a) provides that personnel actions affecting federal employees "shall be made free from any discrimination based on age," while § 15(b) grants the Equal Employment Opportunity Commission authority to enforce the statutory provisions.5 Although there is no provision which expressly grants or precludes a jury trial, Congress provided in § 15(c), 88 Stat. 75, that "[a]ny [federal employee] aggrieved may bring a civil action in any Federal district court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of this Act." 29 U.S.C. § 633a(c) (emphasis added). It is this provision that I believe demonstrates congressional intent to allow a jury trial in ADEA suits against the Federal Government.
29
In Lorillard v. Pons, supra, the Court construed § 7(b) and § 7(c)6—a provision identical to § 15(c) in all relevant respects to afford age discrimination plaintiffs the right to a jury trial against private employers.7 The Court reached this result for two reasons. First, the Court found that the language in § 7(b), 29 U.S.C. § 626(b), that "[t]he provisions of this chapter shall be enforced in accordance with the powers, remedies, and procedures" of certain provisions of the Fair Labor Standards Act (FLSA), suggested that Congress intended to grant a jury trial right because "[l]ong before Congress enacted the ADEA, it was well established that there was a right to a jury trial in private actions pursuant to the FLSA." 434 U.S., at 580, 98 S.Ct., at 869. Second, and more significant for this case, the Court found that § 7(c)'s authorization of the courts to grant and individuals to seek "legal or equitable relief," 29 U.S.C. § 626(c) (emphasis added), strongly suggested that Congress intended to grant a jury trial right. 434 U.S., at 583, 98 S.Ct., at 871. Thus, the Court held, as a matter of statutory construction, that the ADEA allows jury trials in actions against private employers.
30
In the instant case, Congress similarly authorized aggrieved persons to seek and district courts to grant "such legal or equitable relief as will effectuate the purposes of this chapter," 29 U.S.C. § 633a(c) (emphasis added), thereby suggesting that federal employees are entitled to a jury trial under the ADEA. As a unanimous Court emphasized in Lorillard:
31
"The word 'legal' is a term of art: In cases in which legal relief is available and legal rights are determined, the Seventh Amendment provides a right to jury trial. See Curtis v. Loether, 415 U.S. 189, 195-196 [94 S.Ct. 1005, 1008-1009, 39 L.Ed.2d 260] (1974). '[W]here words are employed in a statute which had at the time a well-known meaning at common law or in the law of this country they are presumed to have been used in that sense unless the context compels to the contrary.' Standard Oil v. United States, 221 U.S. 1, 59 [31 S.Ct. 502, 515, 55 L.Ed. 619] (1911). See Gilbert v. United States, 370 U.S. 650, 655 [82 S.Ct. 1399, 1402, 8 L.Ed.2d 750] (1962); Montclair v. Ramsdell, 107 U.S. 147, 152 [2 S.Ct. 391, 394, 27 L.Ed. 431] (1883). We can infer, therefore, that by providing specifically for 'legal' relief, Congress knew the significance of the term 'legal,' and intended that there would be a jury trial on demand. . . ." 434 U.S., at 583,8 98 S.Ct., at 871.
32
Although the Seventh Amendment right to trial by jury in suits at common law does not extend to civil actions against the Federal Government, Congress may extend the jury trial right by legislation. See Galloway v. United States, 319 U.S. 372, 388-389, 63 S.Ct. 1077, 1086, 87 L.Ed. 1458 (1943). Congress' provision for "legal and equitable relief" suggests, therefore, that it intended to allow jury trials in ADEA actions against the Federal Government.
33
This strong inference that Congress intended to legislate a jury trial right is reinforced by Congress' decision to vest jurisdiction in the District Courts, rather than the Court of Claims, to decide ADEA suits brought against the Federal Government. This Court has previously observed that vesting jurisdiction in the district courts rather than the Court of Claims supports an inference of a right to jury trial. In United States v. Pfitsch, the Court stated that "the right to a jury trial is an incident" of the grant of "exclusive jurisdiction in the District Courts." 256 U.S., at 552, 41 S.Ct., at 570. Similarly, in Law v. United States, the Court held that the District Court erred in denying a right to a jury trial under the War Risk Insurance Act, when the court concluded that its jurisdiction "was the exceptional jurisdiction concurrent with the Court of Claims," rather than that "exercised in accordance with the laws governing the usual procedure of the court in actions at law for money compensation." 266 U.S., at 496, 45 S.Ct., at 176.9 Congress' vesting of jurisdiction in the federal district courts under § 15(c) of the ADEA suggest, therefore, that it intended to provide a jury trial right to federal ADEA plaintiffs.10
34
The legislative history of the 1974 ADEA amendments, extending protection to federal employees, is consistent with the conclusion that Congress intended to allow jury trials. Congress' failure to include federal employees under the ADEA when the Act was first passed
35
"did not represent a conscious decision by the Congress to limit the ADEA to employment in the private sector. It reflects the fact, that in 1967, when ADEA was enacted, most government employees were outside the scope of the FLSA and the Wage Hour and Public Contracts Divisions of the Department of Labor, which enforces the Fair Labor Standards Act, were assigned responsibility for enforcing the Age Discrimination in Employment Act." S.Rep.No.93-690, p. 55.
36
When the Act was amended in 1974, Congress intended that "Government employees . . . be subject to the same protections against arbitrary employment based on age as are employees in the private sector." 120 Cong.Rec. 8768 (1974) (remarks of Sen. Bentsen, principal proponent of ADEA extension to federal employees) (emphasis added).11 To be sure, Congress did not provide for identical enforcement schemes for private-sector and federal-sector age discrimination complaints. But when Congress departed from the "same protections" for federal employees, ibid., that it had granted private-sector employees, it did so expressly. Not only did Congress in § 15 not expressly disallow jury trials where the Federal Government is the defendant, but Congress used the same language in § 15(c) that it had used in § 7(c) in authorizing suits in the district courts for legal or equitable relief against private parties. This strongly suggests that it intended to make the jury trial right it approved against private employers equally applicable to ADEA suits against the Federal Government.
37
The strong manifestation of congressional intent from both the language and the legislative history of the 1974 amendments is enhanced by the total absence of any persuasive evidence of a contrary legislative intent. The Court argues, nonetheless, that Congress' decision in 1978 to amend the ADEA to provide explicitly for jury trials in private employer cases brought under § 7,12 without also amending § 15(c), demonstrates an intention to preclude jury trials against the Government. I am completely unpersuaded.
38
The bill which led to codification of a jury trial right in § 7(c)(2) was introduced by Senator Kennedy before this Court decided Lorillard. In order to settle a conflict among the Courts of Appeals over the availability of jury trials in ADEA suits against private employers,13 Senator Kennedy proposed an amendment to the ADEA which would state in haec verba that jury trials are allowed. 123 Cong.Rec. 34317-34318 (1977).14 Senator Kennedy's amendment was adopted by the Senate without debate. Lorillard was subsequently decided. Thereafter, Congress passed the Kennedy amendment, with a modification proposed by the House at Conference extending the jury trial right beyond that proposed by Senator Kennedy and passed by the Senate to include claims for liquidated damages. I can discern no congressional intent to preclude the right to a jury trial in ADEA actions against the Federal Government from this sequence of events. The more plausible explanation, and the one with textual support in the relevant legislative history, H.R.Conf.Rep. No. 95-950, pp. 13-14 (1978), is that Congress understood from the Lorillard opinion that conferring the power to award legal relief suggested a jury trial right15 and that the reason Congress proceeded with the Kennedy amendment was to make clear not only that suits for wages could be tried before a jury, but also that suits for liquidated damages could be tried before a jury, an issue explicitly left unresolved in Lorillard, 434 U.S., at 577, n. 2, 98 S.Ct., at 868, n. 2.16 Moreover, that Congress did not add the same provision to § 15 that it added to § 7 is not indicative of an intent to prohibit jury trials for the additional reason that it was the conflict in the Courts of Appeals over whether employees could have a jury trial against private employers which prompted Senator Kennedy to introduce his bill. There had been no parallel development in the courts interpreting § 15. This legislative history, therefore, does not support the conclusion that the Court seeks to draw from it.
39
The Court also argues that the absence of any reference in § 15 to the FLSA "powers, remedies, and procedures" to which § 7 refers and upon which Lorillard partially relied suggests that Congress did not intend to allow jury trials against the Federal Government. But our decision in Lorillard rested equally on the provision in § 7(c) for "legal or equitable relief" as a strong and independent indication of congressional intent to allow jury trials. In addition, the more likely explanation for the absence of any reference in § 15 to the FLSA sections referred to in § 7(b) is that Congress intended to use existing administrative procedures "to enforce the provisions of [§ 15(a)] through appropriate remedies, including reinstatement or hiring of employees with or without backpay." 29 U.S.C. § 633a(b) (1976 ed., Supp. III). Prior to the 1974 amendments extending ADEA coverage to federal employees, employment discrimination complaints by federal employees were processed by the Civil Service Commission, so that it is not surprising that Congress decided to use existing administrative machinery in § 15(b) to enforce ADEA provisions protecting federal employees. See 39 Fed.Reg. 24351 (1974), reprinted as amended at 29 CFR §§ 1613.501-1613.521 (1980).17 The failure to refer to FLSA procedures in § 15 apparently derives, not from a desire to limit jury trials, but from an intention to employ different administrative procedures for age discrimination complaints brought against the Federal Government.18 Seen in this light, the Court's strained interpretation of the failure to refer to FLSA procedures in § 15 is totally unpersuasive.
III
40
Based on the language of § 15(c) and on the legislative history, which is consistent with my interpretation of that language, I would hold that Congress intended to allow jury trials in ADEA suits against the Federal Government.
1
81 Stat. 602, as amended, 29 U.S.C. §§ 621-634 (1976 ed. and Supp. III).
2
29 U.S.C. § 633a.
3
Section 15(a), as amended in 1978, provides in pertinent part:
"All personnel actions affecting employees or applicants for employment who are at least 40 years of age . . . in military departments [and other enumerated Government agencies] shall be made free from any discrimination based on age." 29 U.S.C. § 633a(a) (1976 ed. and Supp. III).
4
29 U.S.C. § 633a(b) (1976 ed. and Supp. III).
5
29 U.S.C. § 633a(c).
6
Section 7(c), as amended in 1978 and as set forth in 29 U.S.C. § 626(c) (1976 ed., Supp. III), provides:
"(1) Any person aggrieved may bring a civil action in any court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of this chapter; Provided, That the right of any person to bring such action shall terminate upon the commencement of an action by the Commission to enforce the right of such employee under this chapter.
"(2) In an action brought under paragraph (1), a person shall be entitled to a trial by jury of any issue of fact in any such action for recovery of amounts owing as a result of a violation of this chapter, regardless of whether equitable relief is sought by any party in such action."
With the exception of the express right to jury trial conferred by § 7(c)(2) and of the proviso in § 7(c)(1), § 7(c) is identical to § 15(c), Section 7(c)(2) was added by the 1978 amendments of the ADEA.
7
See n. 6, supra.
8
It is not difficult to appreciate Congress' reluctance to provide for jury trials against the United States. When fashioning a narrow exception to permit jury trials in tax refund cases in federal district courts under 28 U.S.C. § 1346(a)(1), in legislation that Congress recognized established a "wholly new precedent," H.R.Rep.No.659, 83d Cong., 1st Sess., 3 (1953), Congress expressed its concern that juries "might tend to be overly generous because of the virtually unlimited ability of the Government to pay the verdict." Ibid. Indeed, because of their firm opposition to breaking with precedent, the House conferees took almost a year before acceding to passage of the bill containing that exception. Only after much debate, and after the conferees became convinced that there would be no danger of excessive verdicts as a result of jury trials in that unique context—because recoveries would be limited to the amount of taxes illegally or erroneously collected—was the bill passed. See H.R.Conf.Rep.No.2276, 83d Cong., 2d Sess., 2 (1954).
9
The respondent argues that the strong presumption against the waiver of sovereign immunity has no relevance to the question of a right to trial by jury. But, it is clear that the doctrine of sovereign immunity and its attendant presumptions must inform the Court's decision in this case. The reason that the Seventh Amendment presumption in favor of jury trials does not apply in actions at law against the United States is that the United States is immune from suit, and the Seventh Amendment right to a jury trial, therefore, never existed with respect to a suit against the United States. Since there is no generally applicable jury trial right that attaches when the United States consents to suit, the accepted principles of sovereign immunity require that a jury trial right be clearly provided in the legislation creating the cause of action.
10
The dissenters contend that this argument can only be made at the expense of overruling the Lorillard decision. But, as hereafter indicated Lorillard has little relevance here. And, of course, the position taken in the dissent totally loses its force in view of the 1978 amendments to the ADEA, see infra, at 167-168, where Congress expressly extended a jury trial right in § 7(c) but not in § 15(c).
11
The decisions cited by the Court in Lorillard, 434 U.S., at 580, n. 7, 98 S.Ct., at 870, n. 7, for the proposition that there is a right to a jury trial in FLSA actions all appear to have rested on the Seventh Amendment, not the FLSA itself. Thus, for the same reason that the Seventh Amendment does not apply in suits against the Federal Government, there would be no comparable right to trial by jury in FLSA suits against the Federal Government under 29 U.S.C. § 216(b). Accordingly, even if Congress intended to incorporate the FLSA enforcement scheme into § 15 of the ADEA, there would be no basis for inferring a right to a jury trial in ADEA cases where the employer is the Federal Government.
12
There are a number of reasons why Congress may have chosen to limit jurisdiction to the federal district courts. They, along with state courts, already had jurisdiction of private-sector ADEA cases under § 7(c). Congress may have decided to follow the same course in federal-sector cases, but confined jurisdiction to federal district courts so that there would not be trials in state courts of actions against the Federal Government. Exclusive district court jurisdiction is also consistent with the jurisdictional references in Title VII of the Civil Rights Act of 1964. See 42 U.S.C. §§ 2000e-5(f)(3) and 2000e-16(c). Congress may also have believed it appropriate to have trials in federal district courts because they, unlike the Court of Claims, are accustomed to awarding equitable relief of the sort authorized by § 15(c).
13
The respondent relies on United States v. Pfitsch, 256 U.S. 547, 41 S.Ct. 569, 65 L.Ed. 1084. But the language relied on in Pfitsch is dicta, since the parties in that case agreed to trial by the court sitting without a jury, id., at 549, 41 S.Ct., at 471, and the jury trial issue was therefore not directly before the Court. In any event, Pfitsch is plainly distinguishable. There Congress specifically rejected a proposal, "presented to its attention in a most precise form," id., at 552, 41 S.Ct., at 472, to confer concurrent jurisdiction on the district courts and Court of Claims under the Tucker Act and instead conferred a new and exclusive jurisdiction on the district courts. Given the particular legislative history in that case, the Court found it "difficult to conceive of any rational ground" for conferring exclusive jurisdiction on the district courts except to provide for jury trials. Ibid. That, of course, is not true here. See n. 12, supra. Moreover, Pfitsch arose before Rule 38(a) of the Federal Rules of Civil Procedure. Rule 38(a) made it clear that there is no general right to trial by jury in civil actions in federal district courts. The Rule establishes a mechanism for determining when there is such a right—i. e., when the Seventh Amendment applies, or if not, when a statute provides it.
The respondent also relies on Law v. United States, 266 U.S. 494, 45 S.Ct. 175, 69 L.Ed. 401. The statement in Law regarding jury trials, which in fact does no more than cite Pfitsch, is also dictum, and of virtually no relevance in this context.
14
A bill introduced by Senator Bentsen on March 9, 1972, S.3318, 92d Cong., 2d Sess., 118 Cong.Rec. 7745 (1972), represented the first attempt to prohibit age discrimination in federal employment. This bill would have simply amended the definition of "employer" in the Act to include the Federal Government, as well as state and local governments. The result would presumably have been to bring federal employees under the procedural provisions in § 7. But Senator Bentsen subsequently submitted a revised version of his bill in the form of an amendment to pending FLSA amendments. See 118 Cong.Rec. 15894 (1972). In contrast to Senator Bentsen's original bill, this amendment to the ADEA proposed the expansion of the definition of the term "employer" only with respect to state and local governments; ADEA coverage of federal employees was to be accomplished by the addition of an entirely new and separate section to the Act (presently § 15). Senator Bentsen's amendment was included in the FLSA bill reported by the Committee on Labor and Public Welfare, S.Rep.No.92-842, pp. 93-94 (1972), and it remained in this form when the bill was enacted into law in 1974.
15
Sections 15(a) and 15(b) of the ADEA, as offered by Senator Bentsen and as finally enacted, are patterned directly after §§ 717(a) and (b) of the Civil Rights Act of 1964, as amended in March 1972, see Pub.L.92-261, 86 Stat. 111-112, which extend Title VII protections to federal employees. Senator Bentsen acknowledged that "[t]he measures used to protect Federal employees [from age discrimination] would be substantially similar to those incorporated" in recently enacted amendments to Title VII. 118 Cong.Rec. 24397 (1972).
16
In fact, during floor consideration of the 1972 amendments to Title VII, the Senate rejected an amendment that would have conferred a statutory right to trial by jury in Title VII cases. Id., at 4919-4920. Senator Javits, in opposing the amendment, observed that it would impose "what would be a special requirement in these cases, as distinguished from the antidiscrimination field generally, of jury trial." Id., at 4920.
1
As the Court of Appeals correctly noted:
"Since sovereign immunity bars all actions against the Government—actions tried to the court as well as those tried to a jury—it is difficult to see why this doctrine should create a presumption against any particular method of trial. . . . [O]nce Congress has waived the Government's immunity, and where it has not explicitly specified the trial procedure to be followed, sovereign immunity drops out of the picture. Courts must then scrutinize the available indicia of legislative intent to see what trial procedure Congress authorized." Nakshian v. Claytor, 202 U.S.App.D.C. 59, 63, n. 4, 628 F.2d 59, 63, n. 4 (1980).
The Court's reliance on Soriano v. United States, 352 U.S. 270, 77 S.Ct. 269, 1 L.Ed.2d 306 (1957), is misplaced. See ante, at 160-161. There, the Court held that the statute of limitations prescribed by Congress barred petitioner's claim against the United States, because the "disability" asserted by petitioner to toll the limitations period was not one of the disabilities enumerated in the statute. In this context, the Court, therefore, concluded that "limitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied." 352 U.S., at 276, 77 S.Ct., at 273. That is, where Congress has expressly provided for limitations on the waiver of immunity, "exceptions [to the limitations] are not to be implied." Ibid. That is not this case.
2
There is of course no Seventh Amendment right to a jury trial against the Federal Government. Galloway v. United States, 319 U.S. 372, 388-389, 63 S.Ct. 1077, 1086, 87 L.Ed. 1458 (1943); McElrath v. United States, 102 U.S. 426, 440, 26 L.Ed. 189 (1880).
3
Rule 38(a) of the Federal Rules of Civil Procedure is not to the contrary. It provides that "[t]he right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States shall be preserved to the parties inviolate." There is no requirement in Rule 38 that Congress make its intent to authorize jury trials express, provided Congress otherwise make its intent known. Indeed, Rule 38 was fully applicable at the time of Lorillard v. Pons, where this Court found a jury trial right even though the words "trial by jury," did not appear in the statute. The Court does not argue otherwise in stating that Rule 38 requires "an affirmative statutory grant" of the jury trial right. Ante, at 165. The Court does not argue that Rule 38 requires a jury trial right to be express. Obviously, that argument would be frivolous since Lorillard found a jury trial right in the absence of an express provision conferring the right. Either Rule 38 does not require that the grant be express, as I suggest, or the unanimous holding of the Court in Lorillard was wrong.
Still, the Court misapprehends the thrust of my argument when it states that Rule 38 "hardly states a general rule that jury trials are to be presumed whenever Congress provides for cases to be brought in federal district courts." Ante, at 165. I have simply argued that conferral of jurisdiction on the district courts raises an inference of a jury trial right in suits against the United States because the Court of Claims, where there is no jury trial right, is an available alternative forum for such cases. Here, Congress chose for § 15(c) cases the federal district courts, not the Court of Claims, as the appropriate forum.
4
As originally passed, the definition of the term "employer" expressly excluded the United States, States, and political subdivisions from ADEA coverage. Pub.L. 90-202, § 11, 81 Stat. 605, 29 U.S.C. § 630(b) (1970 ed.).
5
The Equal Employment Opportunity Commission assumed enforcement authority from the Civil Service Commission in 1978 pursuant to Reorganization Plan No. 1 of 1978, § 2. 3 CFR 321 (1979), 5 U.S.C.App. p. 354 (1976 ed., Supp. III).
6
Section 7(c) of the ADEA, 29 U.S.C. § 626(c), as it read when Lorillard was decided, stated in full:
"Any person aggrieved may bring a civil action in any court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of this chapter: Provided, That the right of any person to bring such action shall terminate upon the commencement of an action by the Secretary to enforce the right of such employee under this chapter."
7
By construing the statute to allow a jury trial, the Court did not have to decide whether "the Seventh Amendment requires that in a private action for lost wages under the ADEA, the parties must be given the option of having the case heard by a jury." 434 U.S., at 577, 98 S.Ct., at 868.
8
The Court's statement that "[i]n Lorillard, the authorization for the award of 'legal' relief was significant largely because of the presence of a constitutional question" is not correct. Ante, at 163. To be sure, a constitutional question was present in Lorillard, but the Court specifically declined to ground its decision on the Seventh Amendment. See n. 7, supra. Rather, it construed the language "legal or equitable relief" in § 7(c) of the ADEA. The Court concluded that when Congress used the words "legal . . . relief," which are equally present in § 15(c), it intended that a jury trial right be available. That Congress used the words "legal . . . relief" in § 7(c) differently from the way it used the same words in § 15(c) is implausible.
Moreover, the Court erroneously suggests that §§ 15(a) and (b) are identical to §§ 717(a) and (b) of Title VII of the Civil Rights Act of 1964, ante, at 163-164, for it fails to note that Title VII does not authorize the courts to award "legal relief," as § 15(c) does.
9
In United States v. Pfitsch, the Court construed § 10 of the Lever Act which conferred exclusive jurisdiction in the district courts to hear lawsuits brought by persons dissatisfied with the President's award of compensation for supplies requisitioned by the Federal Government. In deciding that a judgment rendered under § 10 is not reviewable in this Court by direct writ of error, the Court stated that Congress "had the issue clearly drawn between granting for the adjudication of cases arising under [§ 10] concurrent jurisdiction in the Court of Claims and the District Courts without a trial by jury, or of establishing an exclusive jurisdiction in the District Courts of which the right to a jury trial is an incident." 256 U.S., at 552, 41 S.Ct., at 570 (emphasis added).
That Congress did not, so far as the legislative history indicates, expressly debate vesting concurrent jurisdiction in the Court of Claims over ADEA suits against the Federal Government does not weaken the force of United States v. Pfitsch, despite the Court's protestations to the contrary. Indeed, in Law v. United States, an important case that the Court virtually ignores, see ante, at 165, n. 13, it was of no significance whether Congress specifically considered vesting jurisdiction in the Court of Claims in order to conclude that the War Risk Insurance Act authorized a jury trial in a suit against the Federal Government. What is significant in the instant case is that, in allowing suits against the Government under the ADEA, Congress expressly opted for jurisdiction in the district courts and not the Court of Claims, which in lawsuits against the Government is a self-evident, alternative forum of which Congress was undoubtedly aware.
10
One leading commentator has concluded:
"Congress may confer jurisdiction of actions against the United States upon a district court sitting as a court at law (or equity), as a court of claims, and as a court of admiralty. And the particular grant of jurisdiction will determine the method of trial, court or jury, in the absence of some express provision dealing with the method of trial. Thus, absent a provision as to the method of trial, a grant of jurisdiction to a district court as a court at law, carries with it a right of jury trial." 5 J. Moore, J. Lucas, & J. Wicker, Moore's Federal Practice ¶ 38.31[2], p. 38-239 (1981) (emphasis added; footnotes omitted).
The Court rejects the force of the statute's language. It suggests that, because of similarities between § 15 and Title VII of the Civil Rights Act of 1964, Congress may simply have wished to provide for federal-court jurisdiction because Title VII had. It argues further that Congress may also have thought that district court jurisdiction was appropriate since the statute provided for grant of equitable as well as legal relief, and that district courts, unlike the Court of Claims, are accustomed to awarding equitable relief. Ante, at 164, n. 12. These explanations are purely speculative. There is no basis in the legislative history for them and they are counter to the logical inferences from the language of the statute.
11
Senator Bentsen also stated:
"There is no reason why private enterprise should be subject to restrictions that are not applicable to the Federal Government.
* * * * *
"What this legislation does is to give these workers coverage under the age discrimination law and to give them a procedure to pursue their complaints." 120 Cong.Rec. 5741 (1974).
12
Section 7(c) of the ADEA, 29 U.S.C. § 626(c) (1976 ed., Supp. III), now provides:
"(1) Any person aggrieved may bring a civil action in any court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of this chapter: Provided, That the right of any person to bring such action shall terminate upon the commencement of an action by the Secretary to enforce the right of such employee under this chapter.
"(2) In an action brought under paragraph (1), a person shall be entitled to a trial by jury of any issue of fact in any such action for recovery of amounts owing as a result of a violation of this chapter, regardless of whether equitable relief is sought by any party in such action."
The Court contends that the presence of express language granting a jury trial right in § 7(c) in contrast to the absence of such express language in § 15 demonstrates that Congress "knew how to provide a statutory right to a jury trial when it wished to do so." Ante, at 162. I find this argument hard to fathom. The Court recognizes, as it must, that there was no such express language in § 7(c) when this Court decided in Lorillard that Congress intended ADEA actions against private employers to include a jury trial right, and that the express language relied on by the Court was added two months after Lorillard was decided and four years after the identical language which was construed in Lorillard was added to the ADEA in § 15(c). Therefore, unless the Court is suggesting that the unanimous holding in Lorillard was wrong, the Court is bound to apply the same analysis to this case.
13
Compare Rogers v. Exxon Research & Engineering Co., 550 F.2d 834 (CA3 1977) (right to jury trial), cert. denied, 434 U.S. 1022, 98 S.Ct. 749, 54 L.Ed.2d 770 (1978), and Pons v. Lorillard, 549 F.2d 950 (CA4 1977) (same), aff'd, 434 U.S. 575, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978), with Morelock v. NCR Corp., 546 F.2d 682 (CA6 1976) (no right to jury trial), vacated and remanded, 435 U.S. 911, 98 S.Ct. 1463, 55 L.Ed.2d 503 (1978).
14
Senator Kennedy further explained: "[J]uries are more likely to be open to the issues which have been raised by the plaintiffs. Sometimes, a judge may be slightly callous, perhaps because he himself is protected by life tenure, or because he is somewhat removed from the usual employer-employee relationship. The jury may be more neutral in such circumstances." 123 Cong.Rec. 34318 (1977).
15
Indeed, the Conference Report specifically noted that the Court had recently decided Lorillard v. Pons, and went on to state: "Because liquidated damages are in the nature of legal relief, it is manifest that a party is entitled to have the factual issues underlying such a claim decided by jury." H.R.Conf.Rep.No. 95-950, p. 14 (1978), U.S. Code Cong. & Admin. News 1978, p. 535.
16
"The Supreme Court recently ruled that a plaintiff is entitled to a jury trial in ADEA actions for lost wages, but it did not decide whether there is a right to jury trial on a claim for liquidated damages." Id., at 13, U.S. Code Cong. & Admin. News 1978, p. 535.
17
The Court further suggests that, because the ADEA was patterned in significant respects after Title VII, and since Title VII has been held by lower federal courts not to allow a jury trial right, it follows that § 15 does not contemplate such a right. I find this argument unpersuasive, as the Court did in Lorillard. The Court has previously said that, despite important similarities between Title VII and the ADEA, "it is the remedial and procedural provisions of the two laws that are crucial and there we find significant differences." Lorillard v. Pons, 434 U.S., at 584, 98 S.Ct., at 872. "Congress specifically provided for both 'legal or equitable relief' in the ADEA, but did not authorize 'legal' relief in so many words under Title VII." Ibid.
18
This interpretation is supported by Congress' extension of ADEA protection to employees of state and local governments, which occurred at the same time that Congress extended coverage to federal employees. Because the definitional section of the Act was amended to include state and local governments within the definition of "employer," 29 U.S.C. § 630(b), age discrimination complaints against state and local governments can be tried to a jury for the same reason that complaints against private entities can be. Nowhere in the legislative history did Congress evince a desire to allow state and local government employees a jury trial right, while withholding the same right from federal employees. Rather, federal employees were covered in a separate section of the Act, apparently so that existing administrative machinery could be used.
| 01
|
453 U.S. 182
101 S.Ct. 2712
69 L.Ed.2d 567
CALIFORNIA MEDICAL ASSOCIATION et al., Appellants,v.FEDERAL ELECTION COMMISSION et al.
No. 79-1952.
Argued Jan. 19, 1981.
Decided June 26, 1981.
Syllabus
One provision of the Federal Election Campaign Act of 1971 (Act), 2 U.S.C. § 441a(a)(1)(C), prohibits individuals and unincorporated associations from contributing more than $5,000 per calendar year to any multicandidate political committee. A related provision § 441a(f), makes it unlawful for political committees knowingly to accept contributions exceeding the $5,000 limit. Appellant California Medical Association (CMA) is a not-for-profit unincorporated association of doctors, and appellant California Medical Political Action Committee (CALPAC) is a political committee formed by CMA and registered with appellee Federal Election Commission (FEC). When CMA and CALPAC were notified of an impending enforcement proceeding by the FEC for alleged violations of §§ 441a(a)(1)(C) and 441a(f), they, together with individual members, filed a declaratory judgment action in Federal District Court challenging the constitutionality of these provisions. Subsequently, the FEC filed its enforcement proceeding in the same District Court, and CMA and CALPAC pleaded as affirmative defenses the same constitutional claims raised in their declaratory judgment action. Pursuant to the special expedited review provisions of the Act, § 437h(a), the District Court, while the enforcement proceeding was still pending, certified the constitutional questions raised in the declaratory judgment action to the Court of Appeals, which rejected the constitutional claims and upheld the challenged $5,000 limit on annual contributions. Appellant sought review on direct appeal in this Court pursuant to § 437h(b).
Held : The judgment is affirmed. Pp. 187-201; 201-204.
641 F.2d 619, affirmed.
Justice MARSHALL delivered the opinion of the Court with respect to Parts I, II, and IV, concluding that:
1
1. This Court has jurisdiction over the appeal. There is no merit to the FEC's contention that in view of the overlapping provisions of the Act for judicial review of declaratory judgment actions, § 437h(a), and enforcement proceedings, § 437g(a)(10), and because Congress failed to provide any mechanism for coordinating cases in which the same constitutional issues are raised by the same parties in both a declaratory judgment action and an enforcement proceeding, as here, a direct appeal to this Court under § 437h(b) should be limited to situations in which no enforcement proceedings are pending, since otherwise litigants, like appellants here, could disrupt and delay enforcement proceedings and undermine the functioning of the federal courts. Neither the statutory language nor legislative history of §§ 437g and 437h indicates that Congress intended such a limitation. Pp. 187-192.
2
2. Section 441a(a)(1)(C) does not violate the equal protection component of the Fifth Amendment on the ground, alleged by appellants, that because a corporation's or labor union's contributions to a segregated political fund are unlimited under the Act, an unincorporated association's contribution to a multicandidate political committee cannot be limited without violating equal protection. Appellants' contention ignores the fact that the Act as a whole imposes far fewer restrictions on individuals and unincorporated associations than it does on corporations and unions. The differing restrictions placed on individuals and unincorporated associations, on the one hand, and on corporations and unions, on the other, reflect a congressional judgment that these entities have differing structures and purposes and that they therefore may require different forms of regulation in order to protect the integrity of the political process. Pp. 200-201.
3
Justice MARSHALL, joined by Justice BRENNAN, Justice WHITE and Justice STEVENS, concluded in Part III that § 441a(a)(1)(C) does not violate the First Amendment. Nothing in § 441a(a)(1)(C) limits the amount CMA or any of its members may independently expend in order to advocate political views; rather, the provision restrains only the amount CMA may contribute to CALPAC. The "speech by proxy" that CMA seeks to achieve through its contributions to CALPAC is not the sort of political advocacy that this Court in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659, found entitled to full First Amendment protection. Since CALPAC receives contributions from more than 50 persons a year, appellants' claim that CALPAC is merely the mouthpiece of CMA is untenable. CALPAC instead is a separate legal entity that receives funds from multiple sources and engages in independent political advocacy. If the First Amendment rights of a contributor are not infringed by limitations on the amount he may contribute to a campaign organization which advocates the views and candidacy of a particular candidate, Buckley v. Valeo, supra, the rights of a contributor are similarly not impaired by limits on the amount he may give to a multicandidate political committee, such as CALPAC, which advocates the views and candidacies of a number of candidates. Moreover, the challenged contribution restriction, contrary to appellants' claim, is an appropriate means by which Congress could seek to protect the integrity of the contribution restrictions upheld in Buckley v. Valeo. Pp. 193-199.
4
Justice BLACKMUN concluded that the challenged contribution limitation does not violate the First Amendment because it is no broader than necessary to achieve the governmental interest in preventing actual or potential corruption. Pp. 201-204.
5
Frederick C. Zimmerman, San Francisco, Cal., for appellants.
6
Charles Nevett Steele, Washington, D. C., for appellees.
7
Justice MARSHALL delivered the opinion of the Court with respects to Parts I, II, and IV, and delivered an opinion with respect to Part III, in which Justice BRENNAN, Justice WHITE, and Justice STEVENS joined.
8
In this case we consider whether provisions of the Federal Election Campaign Act of 1971, 86 Stat. 11, as amended, 2 U.S.C. § 431 et seq. (1976 ed. and Supp. III), limiting the amount an unincorporated association may contribute to a multicandidate political committee violate the First Amendment or the equal protection component of the Fifth Amendment. Concluding that these contribution limits are constitutional, we affirm the judgment of the Court of Appeals for the Ninth Circuit.
9
* The California Medical Association (CMA) is a not-for-profit unincorporated association of approximately 25,000 doctors residing in California. In 1976, CMA formed the California Medical Political Action Committee (CALPAC). CALPAC is registered as a political committee with the Federal Election Commission, and is subject to the provisions of the Federal Election Campaign Act relating to multicandidate political committees.1 One such provision, 2 U.S.C. § 441a(a)(1)(C), prohibits individuals and unincorporated associations such as CMA from contributing more than $5,000 per calendar year to any multicandidate political committee such as CALPAC.2 A related provision of the Act, 2 U.S.C. § 441a(f), makes it unlawful for political committees such as CALPAC knowingly to accept contributions exceeding this limit.3
10
In October 1978, the Federal Election Commission found "reason to believe" that CMA had violated the Act by making annual contributions to CALPAC in excess of $5,000, and that CALPAC had unlawfully accepted such contributions. When informal conciliation efforts failed, the Commission in April 1979 authorized its staff to institute a civil enforcement action against CMA and CALPAC to secure compliance with the contribution limitations of the Act. In early May 1979, after receiving formal notification of the Commission's impending enforcement action, CMA and CALPAC, together with two individual members of these organizations, filed this declaratory judgment action in the United States District Court for the Northern District of California challenging the constitutionality of the statutory contribution limitations upon which the Commission's enforcement action was to be based. Several weeks later, the Commission filed its enforcement action in the same District Court. In this second suit, CMA and CALPAC pleaded as affirmative defenses the same constitutional claims raised in their declaratory judgment action.
11
On May 17, 1979, pursuant to the special expedited review provisions of the Act set forth in 2 U.S.C. § 437h (1976 ed. and Supp. III),4 the District Court certified the constitutional questions raised in appellants' declaratory judgment action to the Court of Appeals for the Ninth Circuit. In the meantime, pretrial discovery and preparation in the Commission's enforcement action continued in the District Court. In May 1980, a divided Court of Appeals, sitting en banc, rejected appellants' constitutional claims and upheld the $5,000 limit on annual contributions by unincorporated associations to multicandidate political committees. 641 F.2d 619. Appellants sought review of that determination in this Court, again pursuant to the special jurisdictional provisions of 2 U.S.C. § 437h (1976 ed. and Supp. III). The Commission subsequently moved to dismiss the appeal, and we postponed a ruling on our jurisdiction over this case pending a hearing on the merits. 449 U.S. 817, 101 S.Ct. 67, 66 L.Ed.2d 19 (1980).5
II
12
Because the Commission vigorously contends that this Court does not have jurisdiction over this appeal, we first consider the complex judicial review provisions of the Federal Election Campaign Act.6 The Act provides two routes by which questions involving its constitutionality may reach this Court. First, such questions may arise in the course of an enforcement proceeding brought by the Commission under 2 U.S.C. § 437g (1976 ed. and Supp. III). Such actions are filed by the Commission in the federal district courts, where they are to be accorded expedited treatment. §§ 437g(a) (6)(A)) (1976 ed., Supp. III). The judgments of the district courts in such cases are appealable to the courts of appeals, with final review in this Court available upon certiorari or certification. § 437g(a)(9).
13
However, because Congress was concerned that its extensive amendments to the Act in 1974 might raise important constitutional questions requiring quick resolution,7 it provided an alternative method for obtaining expedited review of constitutional challenges to the Act. This procedure, outlined in 2 U.S.C. § 437h (1976 ed. and Supp. III), provides in part:
14
"The Commission, the national committee of any political party, or any individual eligible to vote in any election for the office of President 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. The district court immediately shall certify all questions of constitutionality of this Act to the United States court of appeals for the circuit involved, which shall hear the matter sitting en banc." § 437h(a).
15
The statute further provides that decisions of the courts of appeals on such certified questions may be reviewed in this Court on direct appeal, § 437h(b), and it directs both the courts of appeals and this Court to expedite the disposition of such cases, § 437h(c).
16
Although Congress thus established two avenues for judicial review of constitutional questions arising under the Act, it failed to provide any mechanism for coordinating cases in which the same constitutional issues are raised by the same parties in both a § 437h declaratory judgment action and a § 437g enforcement proceeding. The Commission contends that this legislative oversight has allowed litigants, like appellants here, to disrupt and delay enforcement proceedings brought by the Commission under § 437g by instituting separate § 437h declaratory judgment actions in which the constitutional defenses to enforcement are asserted as affirmative claims. The Commission further argues that § 437h declaratory judgment actions may seriously undermine the functioning of the federal courts because of the special treatment that these courts are required to accord such cases. To alleviate these potential problems, the Commission urges this Court to construe the overlapping judicial review provisions of the Act narrowly so as to preclude the use of § 437h actions to litigate constitutional challenges to the Act that have been or might be raised as defenses to ongoing or contemplated Commission enforcement proceedings.8 Under this proposed reading of § 437g and § 437h, the District Court in this case should have declined to certify appellants' constitutional claims to the Court of Appeals in light of the Commission's pending enforcement action against CMA and CALPAC. On this basis, we are urged by the Commission to dismiss the appeal in this case for want of jurisdiction.
17
Although we agree with the Commission that the judicial review provisions of the Act are scarcely a blueprint for efficient litigation, we decline to construe § 437h in the manner suggested by the Commission.9 There is no suggestion in the language or legislative history of § 437h indicating that Congress intended to limit the use of this provision to situations in which no § 437g enforcement proceedings are contemplated or underway.10 Section 437h expressly requires a district court to "immediately . . . certify all questions of the constitutionality of this Act" to the court of appeals. (Emphasis supplied.) We do not believe that Congress would have used such all-encompassing language had it intended to restrict § 437h in the manner proposed by the Commission.11 Indeed, the cramped construction of the statute proposed by the Commission would directly undermine the very purpose of Congress in enacting § 437h. It is undisputed that this provision was included in the 1974 Amendments to the Act to provide a mechanism for the rapid resolution of constitutional challenges to the Act. These questions may arise regardless of whether a Commission enforcement proceeding is contemplated. Yet under the Commission's approach, even the most fundamental and meritorious constitutional challenge to the Act could not be reviewed pursuant to § 437h, but instead could be considered only pursuant to the more limited procedure set forth in § 437g,12 if this question also happened to be raised in a Commission enforcement action. If Congress had intended to remove a whole category of constitutional challenges from the purview of § 437h, thereby significantly limiting the usefulness of that provision, it surely would have made such a limitation explicit.
18
In addition, the language of § 437g itself undercuts the Commission's contention that § 437h actions must be held in abeyance if the same parties are or may be involved in § 437g enforcement actions brought by the Commission. The statute expressly provides that § 437g enforcement actions filed by the Commission in the district court are to be "put ahead of all other actions (other than other actions brought under this subsection or under section 437h of this title )." § 437g(a)(10) (emphasis added). If Congress had intended to coordinate § 437g and § 437h in the manner now proposed by the Commission, it is inconceivable that it would have chosen the above language. Instead, the wording of the statute plainly implies that actions brought under both sections may proceed in the district court at the same time. See Bread Political Action Committee v. Federal Election Comm'n, 591 F.2d 29, 33 (CA7 1979), appeal pending, No. 80-1481. In sum, although Congress might have been wiser to orchestrate § 437g and § 437h in the manner proposed by the Commission, the statutory language and history belie any such intention.13 We therefore conclude that we have jurisdiction over this appeal.14
III
19
Appellants' First Amendment claim is based largely on this Court's decision in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam ). That case involved a broad challenge to the constitutionality of the 1974 Amendments to the Federal Election Campaign Act. We held, inter alia, that the limitations placed by the Act on campaign expenditures violated the First Amendment in that they directly restrained the rights of citizens, candidates, and associations to engage in protected political speech. Id., 424 U.S., at 39-59, 96 S.Ct., at 644-654. Nonetheless, we upheld the various ceilings the Act placed on the contributions individuals and multicandidate political committees could make to candidates and their political committees, and the maximum aggregate amount any individual could contribute in any calendar year.15 We reasoned that such contribution restrictions did not directly infringe on the ability of contributors to express their own political views, and that such limitations served the important governmental interests in preventing the corruption or appearance of corruption of the political process that might result if such contributions were not restrained. Id., at 23-38, 96 S.Ct., at 636-644.
20
Although the $5,000 annual limit imposed by § 441a(a)(1)(C) on the amount that individuals and unincorporated associations may contribute to political committees is, strictly speaking, a contribution limitation, appellants seek to bring their challenge to this provision within the reasoning of Buckley. First, they contend that § 441a(a)(1)(C) is akin to an unconstitutional expenditure limitation because it restricts the ability of CMA to engage in political speech through a political committee, CALPAC. Appellants further contend that even if the challenged provision is viewed as a contribution limitation, it is qualitatively different from the contribution restrictions we upheld in Buckley. Specifically, appellants assert that because the contributions here flow to a political committee, rather than to a candidate, the danger of actual or apparent corruption of the political process recognized by this Court in Buckley as a sufficient justification for contribution restrictions is not present in this case.
21
While these contentions have some surface appeal, they are in the end unpersuasive. The type of expenditures that this Court in Buckley considered constitutionally protected were those made independently by a candidate, individual, or group in order to engage directly in political speech. Id. 424 U.S., at 44-48, 96 S.Ct., at 646-648. Nothing in § 441a(a)(1)(C) limits the amount CMA or any of its members may independently expend in order to advocate political views; rather, the statute restrains only the amount that CMA may contribute to CALPAC. Appellants nonetheless insist that CMA's contributions to CALPAC should receive the same constitutional protection as independent expenditures because, according to appellants, this is the manner in which CMA has chosen to engage in political speech.
22
We would naturally be hesitant to conclude that CMA's determination to fund CALPAC rather than to engage directly in political advocacy is entirely unprotected by the First Amendment.16 Nonetheless, the "speech by proxy" that CMA seeks to achieve through its contributions to CALPAC is not the sort of political advocacy that this Court in Buckley found entitled to full First Amendment protection. CALPAC, as a multicandidate political committee, receives contributions from more that 50 persons during a calendar year. 2 U.S.C. § 441a(a)(4). Thus, appellants' claim that CALPAC is merely the mouthpiece of CMA is untenable. CALPAC instead is a separate legal entity that receives funds from multiple sources and that engages in independent political advocacy. Of course, CMA would probably not contribute to CALPAC unless it agreed with the views espoused by CALPAC, but this sympathy of interests alone does not convert CALPAC's speech into that of CMA.
23
Our decision in Buckley precludes any argument to the contrary. In that case, the limitations on the amount individuals could contribute to candidates and campaign organizations were challenged on the ground that they limited the ability of the contributor to express his political views, albeit through the speech of another. The Court, in dismissing the claim, noted:
24
"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." 424 U.S., at 21, 96 S.Ct., at 635 (emphasis added).
25
This analysis controls the instant case. If the First Amendment rights of a contributor are not infringed by limitations on the amount he may contribute to a campaign organization which advocates the views and candidacy of a particular candidate, the rights of a contributor are similarly not impaired by limits on the amount he may give to a multicandidate political committee, such as CALPAC, which advocates the views and candidacies of a number of candidates.17
26
We also disagree with appellants' claim that the contribution restriction challenged here does not further the governmental interest in preventing the actual or apparent corruption of the political process. Congress enacted § 441a(a)(1)(C) in part to prevent circumvention of the very limitations on contributions that this Court upheld in Buckley.18 Under the Act, individuals and unincorporated associations such as CMA may not contribute more than $1,000 to any single candidate in any calendar year. 2 U.S.C. § 441a(a)(1)(A). Moreover, individuals may not make more than $25,000 in aggregate annual political contributions. 2 U.S.C. § 441a(a)(3). If appellants' position that Congress cannot prohibit individuals and unincorporated associations from making unlimited contributions to multicandidate political committees—is accepted, then both these contribution limitations could be easily evaded. Since multicandidate political committees may contribute up to $5,000 per year to any candidate, 2 U.S.C. § 441a(a)(2)(A), an individual or association seeking to evade the $1,000 limit on contributions to candidates could do so by channelling funds through a multicandidate political committee. Similarly, individuals could evade the $25,000 limit on aggregate annual contributions to candidates if they were allowed to give unlimited sums to multicandidate political committees, since such committees are not limited in the aggregate amount they may contribute in any year.19 These concerns prompted Congress to enact § 441a(a)(1)(C), and it is clear that this provision is an appropriate means by which Congress could seek to protect the integrity of the contribution restrictions upheld by this Court in Buckley.20
IV
27
Appellants also challenge the restrictions on contributions to political committees on the ground that they violate the equal protection component of the Fifth Amendment. Under the statute, corporations and labor unions may pay for the establishment, administration, and solicitation expenses of a "separate segregated fund to be utilized for political purposes." 2 U.S.C. § 441b(b)(2)(C). Contributions by these groups to such funds are not limited by the statute. 2 U.S.C. § 431(8)(B)(vi) (1976 ed., Supp. III). Appellants assert that a corporation's or a union's contribution to its segregated political fund is directly analogous to an unincorporated association's contributions to a multicandidate political committee. Thus, they conclude that because contributions are unlimited in the former situation, they cannot be limited in the latter without violating equal protection.
28
We have already concluded that § 441a(a)(1)(C) does not offend the First Amendment. In order to conclude that it nonetheless violates the equal protection component of the Fifth Amendment, we would have to find that because of this provision the Act burdens the First Amendment rights of persons subject to § 441a(a)(1)(C) to a greater extent than it burdens the same rights of corporations and unions, and that such differential treatment is not justified. We need not consider this second question whether the discrimination alleged by appellants is justified because we find no such discrimination. Appellants' claim of unfair treatment ignores the plain fact that the statute as a whole imposes far fewer restrictions on individuals and unincorporated associations than it does on corporations and unions. Persons subject to the restrictions of § 441a(a)(1)(C) may make unlimited expenditures on political speech; corporations and unions, however, may make only the limited contributions authorized by § 441b(b)(2). Furthermore, individuals and unincorporated associations may contribute to candidates, to candidates' committees, to national party committees, and to all other political committees while corporations and unions are absolutely barred from making any such contributions. In addition, multicandidate political committees are generally unrestricted in the manner and scope of their solicitations; the segregated funds that unions and corporations may establish pursuant to §441b(b)(2)(C) are carefully limited in this regard. §§ 441b(b)(3), 441b(b)(4). The differing restrictions placed on individuals and unincorporated associations, on the one hand, and on unions and corporations, on the other, reflect a judgment by Congress that these entities have differing structures and purposes, and that they therefore may require different forms of regulation in order to protect the integrity of the electoral process. Appellants do not challenge any of the restrictions on the corporate and union political activity, yet these restrictions entirely undermine appellants' claim that because of § 441a(a)(1)(C), the Act discriminates against individuals and unincorporated associations in the exercise of their First Amendment rights. Cf. Buckley, 424 U.S., at 95-99, 96 S.Ct., at 671-673.
29
Accordingly, we conclude that the $5,000 limitation on the amount that persons may contribute to multicandidate political committees violates neither the First nor the Fifth Amendment. The judgment of the Court of Appeals is therefore affirmed.
30
So ordered.
31
Justice BLACKMUN, concurring in part and concurring in the judgment.
32
I join Parts I, II, and IV of Justice MARSHALL's opinion which, to that extent, becomes an opinion for the Court.
33
I write separately, however, to note my view of appellants' First Amendment claims. Part III of the opinion appears to rest on the premise that the First Amendment test to be applied to contribution limitations is different from the test applicable to expenditure limitations. I do not agree with that proposition. Although I dissented in part in Buckley v. Valeo, 424 U.S. 1, 290, 96 S.Ct., 612, 760, 46 L.Ed.2d 659 (1976), I am willing to accept as binding the Court's judgment in that case that the contribution limitations challenged there were constitutional. Id., at 23-38, 96 S.Ct., at 637-644. But it does not follow that I must concur in the plurality conclusion today, ante, at 196, that political contributions are not entitled to full First Amendment protection. It is true that there is language in Buckley that might suggest that conclusion, see, e. g., 424 U.S., at 20-23, 96 S.Ct., at 635-636 and it was to such language that I referred when I suggested in my dissent that the Court had failed to make a principled constitutional distinction between expenditure and contribution limitations. Id., at 290, 96 S.Ct., at 760. At the same time, however, Buckley states that "contribution and expenditure limitations both implicate fundamental First Amendment interests," id., at 23, 96 S.Ct., at 636 and that "governmental 'action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny,' " id., at 25, 96 S.Ct., at 637, quoting NAACP v. Alabama, 357 U.S. 449, 460-461, 78 S.Ct. 1163, 1170-1171, 2 L.Ed.2d 1488 (1958). Thus, contribution limitations can be upheld only "if the State demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgment of associational freedoms." 424 U.S., at 25, 96 S.Ct. at 637. See Note, The Unconstitutionality of Limitations on Contributions to Political Committees in the 1976 Federal Election Campaign Act Amendments, 86 Yale L.J. 953, 961-962 (1977).
34
Unlike the plurality, I would apply this "rigorous standard of review," 424 U.S., at 29, 96 S.Ct., at 639, to the instant case, rather than relying on what I believe to be a mistaken view that contributions are "not the sort of political advocacy . . . entitled to full First Amendment protection." Ante, at 196. Appellees claim that 2 U.S.C. § 441a(a)(1)(C) is justified by the governmental interest in preventing apparent or actual political corruption. That this interest is important cannot be doubted. It is a closer question, however, whether the statute is narrowly drawn to advance that interest. Nonetheless, I conclude that contributions to multicandidate political committees may be limited to $5,000 per year as a means of preventing evasion of the limitations on contributions to a candidate or his authorized campaign committee upheld in Buckley. The statute challenged here is thus analogous to the $25,000 limitation on total contributions in a given year that Buckley held to be constitutional. 424 U.S., at 38, 96 S.Ct., at 644.
35
I stress, however, that this analysis suggests that a different result would follow if § 441a(a)(1)(C) were applied to contributions to a political committee established for the purpose of making independent expenditures, rather than contributions to candidates. By definition, a multicandidate political committee like CALPAC makes contributions to five or more candidates for federal office. § 441a(a)(4). Multicandidate political committees are therefore essentially conduits for contributions to candidates, and as such they pose a perceived threat of actual or potential corruption. In contrast, contributions to a committee that makes only independent expenditures pose no such threat. The Court repeatedly has recognized that "[e]ffective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association . . . ." NAACP v. Alabama, 357 U.S., at 460, 78 S.Ct., at 1170. By pooling their resources, adherents of an association amplify their own voices, see Buckley v. Valeo, 424 U.S., at 22, 96 S.Ct., at 636; the association "is but the medium through which its individual members seek to make more effective the expression of their own views." NAACP v. Alabama, 357 U.S., at 459, 78 S.Ct., at 1170. Accordingly, I believe that contributions to political committees can be limited only if those contributions implicate the governmental interest in preventing actual or potential corruption, and if the limitation is no broader than necessary to achieve that interest. Because this narrow test is satisfied here, I concur in the result reached in Part III of Justice MARSHALL's opinion.
36
Justice STEWART, with whom THE CHIEF JUSTICE, Justice POWELL, and Justice REHNQUIST join, dissenting.
37
In § 313 of the Federal Election Campaign Act of 1971, 2 U.S.C. § 437g (1976 ed., Supp. III), Congress created an elaborate system for the enforcement of the Act. That system may be summarized as follows:
38
If the Commission becomes aware of a possible violation of the Act, it must notify the person responsible for the violation (who is referred to in the Act as the respondent). 2 U.S.C. § 437g(a)(2) (1976 ed., Supp. III). After investigating the possible violation, the Commission must notify the respondent of any recommendation made by the Commission's General Counsel that the Commission decide whether there is probable cause to believe that the respondent has violated, or is about to violate, the Act. If the Commission determines that there is probable cause, it must attempt, for at least 30 but not more than 90 days, "to correct or prevent such violation by informal methods of conference, conciliation, and persuasion . . . ." § 437g(a)(4)(A)(i). (If the probable-cause determination is made within 45 days before an election, the Commission need seek conciliation for only 15 days. § 437g(a)(4)(A)(ii)). If conciliation fails, the Commission may institute a civil action for relief in an appropriate United States district court. § 437g(a)(6)(A) (1976 ed. and Supp. III). Any judgment of that court may be appealed to the appropriate court of appeals, and the judgment of the court of appeals is subject to review by this Court upon certiorari or certification. § 437g(a)(9). Section 437g(a)(10) provides that "[a]ny 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)." A number of Members of Congress believed that the Act raised significant constitutional issues, and Congress concluded that such issues ought to be expeditiously resolved. Consequently, Congress authorized "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." 2 U.S.C. § 437h(a) (1976 ed., Supp. III). To assure quick and authoritative resolution of these constitutional issues, Congress established two extraordinary procedures. First, "[t]he district court immediately shall certify all questions of constitutionality of this Act to the United States court of appeals for the circuit involved, which shall hear the matter sitting en banc." Ibid. Second, "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." § 437h(b). These procedures are to be accomplished with special promptness: "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." § 437h(c).
39
The Court today holds that a person who has received formal notification of an impending § 437g enforcement proceeding may nevertheless bring an action under § 437h raising precisely the same constitutional issues presented in the § 437g proceeding. This holding interferes, I think, with the proper enforcement of the Act and with the sound functioning of the federal courts in ways that Congress cannot have intended.
40
Although neither the language of the Act nor its legislative history directly addresses the issue resolved by the Court's holding, the structure of the Act itself expresses Congress' intent that § 437h is not to be available as a means of thwarting a § 437g enforcement proceeding. The Act provides for two separate kinds of proceedings with two separate purposes. The first proceeding serves to prevent violations of the Act. The second makes possible prompt challenges to the constitutionality of the Act, more or less in the abstract.
41
Because the proceedings serve different purposes, Congress instituted separate sets of procedures tailored to the purposes of each proceeding. Thus Representative Hays—the chairman of the House Committee responsible for the bill—stated during debate: "The delicately balanced scheme of procedures and remedies set out in the act is intended to be the exclusive means for vindicating the rights and declaring the duties stated therein." 120 Cong.Rec. 35134 (1974). In particular, in § 437g Congress balanced in extensive detail the public's interest in an expeditious resolution of any § 437g question against the respondent's interest in fair procedures. Congress accordingly (1) specified the periods of time in which § 437g proceedings must be accomplished, (2) directed that § 437g cases need only be heard by ordinarily constituted panels in the courts of appeals, and (3) limited access to this Court to those cases certified to the Court and those cases which the Court chooses to review.
42
Under the Court's holding today, Congress' assessment of each of the cautiously limited rights contained in § 437g can easily be upset, to the detriment of the strong interest in a prompt resolution of a § 437g proceeding. First, Congress' requirement of a timely resolution of an enforcement proceeding can be disrupted by a respondent's decision to engraft a § 437h proceeding onto a § 437g action. If, in response to such a graft, the § 437g action is stayed pending the outcome of the § 437h proceeding, delay will obviously result. If the § 437g action is not stayed, delay may often be caused by the necessity of redoing work in light of the decision reached by the § 437h courts. Nor will the fact that an appeal has already been had on the abstract constitutional principle make up for some of that lost time, since an appeal on the question of whether the constitutional principle was correctly applied will still be available under § 437g.
43
Second, by invoking § 437h, a § 437g respondent will be able to arrogate to himself the extraordinary—perhaps unique—right to an immediate hearing by a court of appeals sitting en banc. (Under Rule 35 of the Federal Rules of Appellate Procedure, a case is ordinarily heard en banc only after a three-judge panel has heard it and after a majority of the circuit judges in active service have decided that consideration by the full court is necessary to assure the uniformity of the circuit's decisions or that the proceeding involves a question of exceptional importance.) Third, by invoking § 437h, the § 437g respondent can similarly arrogate to himself the unusual right of direct appeal to this Court.
44
Not only will Congress' careful balancing of interests thus be undone by today's holding, but what Representative Hays referred to as the Act's "comprehensive system of civil enforcement," 120 Cong.Rec. 35134 (1974), is likely to be impaired by the strain placed on the Federal Election Commission by the necessity of carrying on two lines of litigation where the Act envisions but one. I see no indication that by adopting § 437h which its author, Senator Buckley, said "merely provides for the expeditious review of the constitutional questions I have raised," 120 Cong.Rec. 10562 (1974)—Congress intended either to expand the rights of § 437g respondents or to contract the Government's ability to stop violations of the Act promptly.*
45
In addition, I think the Court errs in construing with such liberality the jurisdictional scope of an Act that places uncommonly heavy burdens on the federal court system. Litigants who can invoke both § 437g and § 437h can impose on the courts piecemeal adjudication, with all its dangers and disadvantages: Section 437h litigation will often occur without the firm basis in a specific controversy and without the fully developed record which should characterize all litigation and which will generally characterize § 437g proceedings. And § 437h litigation is all too likely to decide questions of constitutional law which might have been avoided by a decision on a narrower ground in a § 437g proceeding.
46
I cannot believe that Congress intended to require every federal court of appeals to hear en banc every constitutional issue arising in a § 437g proceeding. En banc hearings drain large amounts of judicial time, and since they require the summoning together in the larger federal appellate courts of some two dozen circuit judges, they are cumbersome as well. As the Court of Appeals said in the instant case, "if mandatory en banc hearings were multiplied, the effect on the calendars of this court as to such matters and as to all other business might be severe and disruptive." 641 F.2d 619, 632. I would hold that, where a respondent has been formally notified of a § 437g enforcement proceeding, the respondent may not use the issues raised in that enforcement proceeding as a basis for an action under § 437h. I would also hold that the individual members of the respondent associations in the instant case fall within the same bar, given the identity of the interests of the associations and their members. Consequently, I would hold that the District Court should not have certified this case to the Court of Appeals, and that the Court of Appeals was without jurisdiction to decide it.
47
Accordingly, I would dismiss this appeal for want of jurisdiction.
1
Under the Act, a political committee is defined to include "any committee . . . which receives contributions aggregating in excess of $1,000 during a calendar year or which makes expenditures aggregating in excess of $1,000 during a calendar year." 2 U.S.C. § 431(4) (1976 ed., Supp. III). A "multicandidate political committee" is defined as a "political committee which has been registered under section 433 of this title for a period of not less than 6 months, which has received contributions from more than 50 persons, and . . . has made contributions to 5 or more candidates for Federal Office." 2 U.S.C. § 441a(a)(4).
2
Section 441a(a)(1)(C) provides in pertinent part that "[n]o person shall make contributions . . . to any other political committee in any calendar year which, in the aggregate, exceed $5,000." The Act defines the term "person" to include "an individual, partnership, committee, association, corporation, labor organization, or any other organization or group of persons." 2 U.S.C. § 431(11) (1976 ed., Supp. III). Corporations and labor organizations, however, are prohibited by 2 U.S.C. § 441b(a) from making any contributions to political committees other than the special segregated funds authorized by § 441b(b)(2)(C), and hence these entities are not governed by § 441a(a)(1)(C).
3
This section provides that "[n]o . . . political committee shall knowingly accept any contribution or make any expenditure in violation of the provisions of this section."
4
See infra, at 188-189.
5
In the meantime, the District Court has entered judgment in favor of the Commission in its enforcement action against CMA and CALPAC. Federal Election Comm'n v. California Medical Assn., 502 F.Supp. 196 (1980).
6
Initially, we reject the Commission's suggestion that appellants may lack standing to raise the claims involved here. The grant of standing under § 437h, which this Court has held to be limited only by the constraints of Art. III of the Constitution, Buckley v. Valeo, 424 U.S. 1, 11, 96 S.Ct. 612, 631, 46 L.Ed.2d 659 (1976) (per curiam ), authorizes actions to be brought by the Commission, the national committee of a political party, and individuals eligible to vote in federal elections. The individual appellants in this case fall within this last category, and, as members and officers of CMA and CALPAC, have a sufficiently concrete stake in this controversy to establish standing to raise the constitutional claims at issue here. Accordingly, we do not address the question whether parties not enumerated in § 437h's grant of standing, such as CMA and CALPAC, may nonetheless raise constitutional claims pursuant to that section. Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 264, n. 9, 97 S.Ct. 555, 562, n. 9, 50 L.Ed.2d 450 (1977). Compare Martin Tractor Co. v. Federal Election Comm'n, 460 F.Supp. 1017 (D.C.1978), aff'd, 200 U.S.App.D.C. 322, 627 F.2d 375, cert. denied sub nom. National Chamber Alliance for Politics v. Federal Election Comm'n, 449 U.S. 954, 101 S.Ct. 360, 66 L.Ed.2d 218 (1980), with Bread Political Action Committee v. Federal Election Comm'n, 591 F.2d 29 (CA7 1979), appeal pending, No. 80-1481.
7
Senator Buckley introduced the amendment incorporating § 437h into the Act, and noted:
"It merely provides for expeditious review of the constitutional questions I have raised. I am sure we will all agree that if, in fact, there is a serious question as to the constitutionality of this legislation, it is in the interest of everyone to have the question determined by the Supreme Court at the earliest possible time." 120 Cong.Rec. 10562 (1974). The sole explanation of this provision in the House was by Representative Frenzel, who stated:
"I believe within this conference report there are at least 100 items questionable from a constitutional standpoint. . . .
"I do call . . . attention . . . to the fact that any individual under this bill has a direct method to raise these questions and to have those considered as quickly as possible by the Supreme Court." Id., at 35140.
8
Although the Commission now contends that § 437h actions may not be maintained simultaneously with § 437g proceedings raising the same constitutional claims, it has in the past argued that the two review provisions are independent of each other and that § 437h actions could be brought by defendants in a § 437g proceeding to adjudicate any constitutional claims arising during the course of such proceedings. Federal Election Comm'n v. Lance, 635 F.2d 1132, 1137, n. 3 (CA5 1981); Federal Election Comm'n v. Central Long Island Tax Reform Immediately Committee, 616 F.2d 45, 48-49 (CA2 1980).
9
Even if the Commission's proposed construction of the statute were accepted, it remains unclear whether we would be required to dismiss this appeal. The only defendants in the Commission's § 437g enforcement proceeding are CMA and CALPAC. However, the plaintiffs in the § 437h action include, along with CALPAC and CMA, two individual doctors. These individuals have standing to bring this action, see n. 6, supra, and the Commission apparently does not contend that such parties, who are not involved in a pending or ongoing enforcement proceeding, are barred from invoking the § 437h procedure.
10
The legislative history of the 1974 Amendments is silent on the interaction of the two provisions. However, the brief discussion in Congress of § 437h indicates that it was intended to cover all serious constitutional challenges to the Act. See n. 7, supra.
11
The Commission suggests that the language of § 437h, authorizing eligible plaintiffs to "institute such actions . . ., including actions for declaratory judgments, as may be appropriate to construe the constitutionality of any provision of the Act," confers on the district court discretion to dismiss as "inappropriate" § 437h suits raising constitutional claims that are also presented in § 437g proceedings. We do not agree that the word "appropriate" embodies the broad substantive limitation proposed by the Commission. As the reference to declaratory judgment actions in the preceding clause makes clear, the concept of an "appropriate" action refers only to the form in which the litigation is cast. Thus, for example, a suit for damages would not be an "appropriate" action for testing the facial validity of the Act. In any event, whatever ambiguity surrounds the meaning of the word "appropriate" in § 437h is dispelled by the section's command that the district court "immediately . . . certify all questions of constitutionality" to the court of appeals. (Emphasis added.)
12
The judgments of the courts of appeals in § 437g cases are reviewable in this Court only upon certification or writ of certiorari, § 437g(a)(9). In contrast, the judgments of the courts of appeals in § 437h proceedings may be directly appealed to this Court. § 437h(b).
13
In reaching a contrary conclusion, the dissent today engages in a most unusual method of statutory interpretation. Although § 437h expressly requires a district court to "immediately . . . certify all questions of the constitutionality" of the Act to the court of appeals and although the legislative history of that provision clearly indicates Congress' intent to have constitutional challenges to the Act resolved through the § 437h procedure, the dissent blithely concludes that "neither the language of the Act nor its legislative history directly addresses the issue" before the Court today. Post, at 205. Having so neatly swept aside the relevant statutory language and history, the dissent proceeds to rewrite the statute in a manner it perceives as necessary to insure the "proper enforcement of the Act and . . . the sound functioning of the federal courts. . . ." Ibid. Under this reconstruction, § 437h may not be invoked by a party who has been "formally notified of a § 437g proceeding"; indeed that provision may not even be used by those with an "identity of . . . interests" with a party who has been so notified. Post, at 208. While the concepts of "formal notification" and "identity of interests" which the dissent seeks to engraft on § 437h might well benefit the Commission in its effort to enforce the Act and might relieve the courts of appeals of the burden of some § 437h actions, the task before us is not to improve the statute but to construe it. We have already acknowledged that the statute, as we interpret it today, is subject to the criticisms raised by the dissent. Supra, at 190. The remedy, however, lies with Congress.
Moreover, in its effort to justify rewriting § 437h, the dissent exaggerates the burden § 437h actions have placed on the federal courts. To date, there have been only a handful of cases certified to the Courts of Appeals under this procedure. Anderson v. Federal Election Comm'n, 634 F.2d 3 (CA1 1980); Federal Election Comm'n v. Central Long Island Tax Reform Immediately Committee, 616 F.2d 45 (CA2 1980); Republican National Committee v. Federal Election Comm'n, 616 F.2d 1 (CA2 1979), summarily aff'd, 445 U.S. 955, 100 S.Ct. 1639, 64 L.Ed.2d 231 (1980); Federal Election Comm'n v. Lance, 635 F.2d 1132 (CA5 1981); Bread Political Action Committee v. Federal Election Comm'n, 591 F.2d 29 (CA7 1979), appeal pending, No. 80-1481; Buckley v. Valeo,
171 U.S.App.D.C. 172, 519 F.2d 821 (1975), aff'd in part and rev'd in part, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976); Clark v. Valeo, 182 U.S.App.D.C. 21, 559 F.2d 642 (1972), summarily aff'd sub nom. Clark v. Kimmitt, 431 U.S. 950, 97 S.Ct. 2667, 53 L.Ed.2d 267 (1977); Martin Tractor Co. v. Federal Election Comm'n, 200 U.S.App.D.C. 322, 627 F.2d 375, cert. denied sub nom. National Chamber Alliance for Politics v. Federal Election Comm'n, 449 U.S. 954, 101 S.Ct. 360, 66 L.Ed.2d 218 (1980). Moreover, the Federal Election Campaign Act is not an unlimited fountain of constitutional questions, and it is thus reasonable to assume that resort to § 437h will decrease in the future. Under these circumstances, we do not believe that § 437h poses any significant threat to the effective functioning of the federal courts.
14
While we thus decline to adopt the Commission's view,
we believe that its concerns about the potential abuse of § 437h are in large part answered by the other restrictions on the use of that section. The unusual procedures embodied in this section are, at the very least, circumscribed by the constitutional limitations on the jurisdiction of the federal courts. Buckley v. Valeo, 424 U.S., at 11, 96 S.Ct., at 631. A party seeking to invoke § 437h must have standing to raise the constitutional claim. Ibid. Furthermore, § 437h cannot properly be used to compel federal courts to decide constitutional challenges in cases where the resolution of unsettled questions of statutory interpretation may remove the need for constitutional adjudication. Federal Election Comm'n v. Central Long Island Tax Reform Immediately Committee, supra, at 51-53. See Nixon v. Administrator of General Services, 433 U.S. 425, 438, 97 S.Ct. 2777, 2787, 53 L.Ed.2d 867 (1977); Thorpe v. Housing Authority, 393 U.S. 268, 283-284, 89 S.Ct. 518, 527, 21 L.Ed.2d 474 (1969); Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 296, 76 L.Ed. 598 (1932). Moreover, we do not construe § 437h to require certification of constitutional claims that are frivolous, see, e. g., Gifford v. Congress, 452 F.Supp. 802 (ED Cal.1978); cf. California Water Service Co. v. City of Redding, 304 U.S. 252, 254-255, 58 S.Ct. 865, 866-867, 82 L.Ed. 1323 (1938) (per curiam ), or that involve purely hypothetical applications of the statute. See, e. g., Clark v. Valeo, supra; Martin Tractor Co. v. Federal Election Comm'n, supra, at 331-333, 335-337, 627 F.2d, at 384-386, 388-390. Finally, as a practical matter, immediate adjudication of constitutional claims through a § 437h proceeding would be improper in cases where the resolution of such questions required a fully developed factual record. See, e. g., Anderson v. Federal Election Comm'n, supra; Martin Tractor Co. v. Federal Election Comm'n, 200 U.S.App.D.C., at 325, 627 F.2d, at 378; Mott v. Federal Election Comm'n, 494 F.Supp. 131, 135 (DC 1980). These restrictions, in our view, enable a district court to prevent the abuses of § 437h envisioned by the Commission.
None of these considerations, however, pertain to this case. At least the individual appellants have standing to bring this challenge. See n. 6, supra. Additionally, appellants here expressly challenge the statute on its face, and there is no suggestion that the statute is susceptible to an interpretation that would remove the need for resolving the constitutional questions raised by appellants. Finally, as evidenced by the divided en banc court below, the issues here are neither insubstantial nor settled. We therefore conclude that this case is properly before us pursuant to § 437h.
15
Specifically, this Court upheld the $1,000 limit on the amount a person could contribute to a candidate or his authorized political committees, 2 U.S.C. § 441a(a)(1)(A), the $5,000 limit on the contributions by a multicandidate political committee to a candidate or his authorized political committee, 2 U.S.C. § 441a(a)(2)(A), and the overall $25,000 annual ceiling on individual contributions, 2 U.S.C. § 441a(a)(3).
16
In Buckley, this Court concluded that the act of contribution involved some limited element of protected speech.
"A contribution serves as a general expression of support for a 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. 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." 424 U.S., at 21, 96 S.Ct., at 635 (footnote omitted).
Under this analysis, CMA's contributions to CALPAC symbolize CMA's general approval of CALPAC's role in the political process. However, this attenuated form of speech does not resemble the direct political advocacy to which this Court in Buckley accorded substantial constitutional protection.
17
Amicus American Civil Liberties Union suggests that § 441a(a)(1)(C) would violate the First Amendment if construed to limit the amount individuals could jointly expend to express their political views. We need not consider this hypothetical application of the Act. The case before us involves the constitutionality of § 441a(a)(1)(C) as it applies to contributions to multicandidate political committees. Under the statute, these committees are distinct legal entities that annually receive contributions from over 50 persons and make contributions to 5 or more candidates for federal office. 2 U.S.C. § 441a(a)(4). Contributions to such committees are therefore distinguishable from expenditures made jointly by groups of individuals in order to express common political views.
18
The Conference Report on the provision in the 1976 amendments to the Act that became § 441a(a)(1)(C) specifically notes:
"The conferees' decision to impose more precisely defined limitations on the amount an individual may contribute to a political committee, other than a candidate's committees, and to impose new limits on the amount a person or multicandidate committee may contribute to a political committee, other than candidates' committees, is predicated on the following considerations: first, these limits restrict the opportunity to circumvent the $1,000 and $5,000 limits on contributions to a candidate; second, these limits serve to assure that candidates' reports reveal the root source of the contributions the candidate has received; and third, these limitations minimize the adverse impact on the statutory scheme caused by political committees that appear to be separate entities pursuing their own ends, but are actually a means for advancing a candidate's campaign." H.R.Conf.Rep. No. 94-1057, pp. 57-58 (1976), U.S.Code Cong. & Admin. News 1976, pp. 929, 972.
19
Appellants suggest that their First Amendment concerns would be satisfied if this Court declared § 441a(a)(1)(C) unconstitutional to the
extent that it restricts CMA's right to contribute administrative support to CALPAC. The Act defines "contribution" broadly to include
"any gift, subscription, loan, advance, or deposit of money or anything of value . . . or . . . the payment by any person of compensation for the personal services of another person which are rendered to a political committee without charge for any purpose." 2 U.S.C. §§ 431(8)(A)(i), (ii) (1979 ed., Supp. III).
Thus, contributions for administrative support clearly fall within the sorts of donations limited by § 441a(a)(1)(C). Appellants contend, however, that because these contributions are earmarked for administrative support, they lack any potential for corrupting the political process. We disagree. If unlimited contributions for administrative support are permissible, individuals and groups like CMA could completely dominate the operations and contribution policies of independent political committees such as CALPAC. Moreover, if an individual or association was permitted to fund the entire operation of a political committee, all moneys solicited by that committee could be converted into contributions, the use of which might well be dictated by the committee's main supporter. In this manner, political committees would be able to influence the electoral process to an extent disproportionate to their public support and far greater than the individual or group that finances the committee's operations would be able to do acting alone. In so doing, they could corrupt the political process in a manner that Congress, through its contribution restrictions, has sought to prohibit. We therefore conclude that § 441a(a)(1)(C) applies equally to all forms of contributions specified in § 431(8)(A), and assess appellants' constitutional claims from that perspective.
20
We also reject appellants' contention that even if § 441a(a)(1)(C) is a valid means by which Congress could seek to prevent circumvention of the other contribution limitations embodied in the Act, it is superfluous and therefore constitutionally defective because other antifraud provisions in the Act adequately serve this end. See, e. g., 2 U.S.C. §§ 441a(a)(7), 441a(a)(8). Because we conclude that the challenged limitation does not restrict the ability of individuals to engage in protected political advocacy, Congress was not required to select the least restrictive means of protecting the integrity of its legislative scheme. Instead, Congress could reasonably have concluded § 441a(a)(1)(C) was a useful supplement to the other antifraud provisions of the Act. Cf. Buckley v. Valeo, 424 U.S., at 27-28, 96 S.Ct., at 638-639 (rejecting contention that effective bribery and disclosure statutes eliminated need for contribution limitations).
*
The Court's opinion suggests that any approach other than its own would "remove a whole category of constitutional challenges from the purview of § 437h, thereby significantly limiting the usefulness of that provision." Ante, at 191. However, that "whole category" consists only of those few challenges raised by § 437g respondents who did not raise the challenge before the § 437g proceeding began. Any such challenge, of course, will not go unresolved, but will be promptly handled according to the method Congress provided under § 437g for Federal Election Campaign Act issues raised after proceedings have begun.
The Court's opinion also suggests that the fact that § 437g proceedings are to be put ahead of all other actions except "other actions brought under this subsection or under section 437h" somehow supports its holding. There is no evidence that this provision of the statute contemplates more than that a court might have a wholly separate § 437h case on its docket at the time that a § 437g action is filed, and there is no evidence that Congress intended "other actions brought . . . under section 437h" to include a § 437h action which is in practical effect the same case as the § 437g action.
| 23
|
453 U.S. 355
101 S.Ct. 2806
69 L.Ed.2d 696
State of CALIFORNIAv.Randall James PRYSOCK.
No. 80-1846.
June 29, 1981.
PER CURIAM.
1
This case presents the question whether the warnings given to respondent prior to a recorded conversation with a police officer satisfied the requirements of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Although ordinarily this Court would not be inclined to review a case involving application of that precedent to a particular set of facts, see Fare v. Michael C., 439 U.S. 1310, 1314, 99 S.Ct. 3, 5, 58 L.Ed.2d 19 (1978) (REHNQUIST, J., in chambers, opinion of Court at 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979)), the opinion of the California Court of Appeal essentially laid down a flat rule requiring that the content of Miranda warnings be a virtual incantation of the precise language contained in the Miranda opinion. Because such a rigid rule was not mandated by Miranda or any other decision of this Court, and is not required to serve the purposes of Miranda, we grant the motion of respondent for leave to proceed in forma pauperis and the petition for certiorari and reverse.
2
On January 30, 1978, Mrs. Donna Iris Erickson was brutally murdered. Later that evening respondent and a codefendant were apprehended for commission of the offense. Respondent was brought to a substation of the Tulare County Sheriff's Department and advised of his Miranda rights. He declined to talk and, since he was a minor, his parents were notified. Respondent's parents arrived and after meeting with them respondent decided to answer police questions. An officer questioned respondent, on tape, with respondent's parents present. The tape reflects that the following warnings were given prior to any questioning:
3
"Sgt. Byrd: . . . Mr. Randall James Prysock, earlier today I advised you of your legal rights and at that time you advised me you did not wish to talk to me, is that correct?
4
"Randall P.: Yeh.
5
"Sgt. Byrd: And, uh, during, at the first interview your folks were not present, they are now present. I want to go through your legal rights again with you and after each legal right I would like for you to answer whether you understand it or not. . . . Your legal rights, Mr. Prysock, is [sic] follows: Number One, you have the right to remain silent. This means you don't have to talk to me at all unless you so desire. Do you understand this?
6
"Randall P.: Yeh.
7
"Sgt. Byrd: If you give up your right to remain silent, anything you say can and will be used as evidence against you in a court of law. Do you understand this?
8
"Randall P.: Yes.
9
"Sgt. Byrd: You have the right to talk to a lawyer before you are questioned, have him present with you while you are being questioned, and all during the questioning. Do you understand this? "Randall P.: Yes.
10
"Sgt. Byrd: You also, being a juvenile, you have the right to have your parents present, which they are. Do you understand this?
11
"Randall P.: Yes.
12
"Sgt. Byrd: Even if they weren't here, you'd have this right. Do you understand this?
13
"Randall P.: Yes.
14
"Sgt. Byrd: You all, uh,—if,—you have the right to have a lawyer appointed to represent you at no cost to yourself. Do you understand this?
15
"Randall P.: Yes.
16
"Sgt. Byrd: Now, having all these legal rights in mind, do you wish to talk to me at this time?
17
"Randall P.: Yes." App. A to Pet. for Cert. i-iii.
18
At this point, at the request of Mrs. Prysock, a conversation took place with the tape recorder turned off. According to Sgt. Byrd, Mrs. Prysock asked if respondent could still have an attorney at a later time if he gave a statement now without one. Sgt. Byrd assured Mrs. Prysock that respondent would have an attorney when he went to court and that "he could have one at this time if he wished one." Id., at 11.1
19
At trial in the Superior Court of Tulare County the court denied respondent's motion to suppress the taped statement. Respondent was convicted by a jury of first-degree murder with two special circumstances—torture and robbery. Cal.Penal Code Ann. §§ 187, 190.2, 12022(b) (West Supp.1981). He was also convicted of robbery with the use of a dangerous weapon, §§ 211, 12022(b), burglary with the use of a deadly weapon, §§ 459, 12022(b) automobile theft, Cal.Veh.Code Ann. § 10851 (West Supp.1981), escape from a youth facility, Cal.Welf. & Inst.Code Ann. § 871 (West 1972), and destruction of evidence, Cal.Penal Code Ann. § 135 (West 1970).
20
The Court of Appeal for the Fifth Appellate District reversed respondent's convictions and ordered a new trial because of what it thought to be error under Miranda. App. A to Pet. for Cert. 4. The Court of Appeal ruled that respondent's recorded incriminating statements, given with his parents present, had to be excluded from consideration by the jury because respondent was not properly advised of his right to the services of a free attorney before and during interrogation. Although respondent was indisputably informed that he had "the right to talk to a lawyer before you are questioned, have him present with you while you are being questioned, and all during the questioning," and further informed that he had "the right to have a lawyer appointed to represent you at no cost to yourself," the Court of Appeal ruled that these warnings were inadequate because respondent was not explicitly informed of his right to have an attorney appointed before further questioning. The Court of Appeal stated that "[o]ne of [Miranda's] virtues is its precise requirements which are so easily met," and quoted from Harryman v. Estelle, 616 F.2d 870, 873-874 (CA5), cert. denied, 449 U.S. 860, 101 S.Ct. 161, 66 L.Ed.2d 76 (1980), that " 'the rigidity of the Miranda rules and the way in which they are to be applied was conceived of and continues to be recognized as the decision's greatest strength.' " App. A to Pet. for Cert. 12. Relying on two previous decisions of the California Court of Appeal, People v. Bolinski, 260 Cal.App.2d 705, 67 Cal.Rptr. 347 (1968), and People v. Stewart, 267 Cal.App.2d 366, 73 Cal.Rptr. 484 (1968), the court ruled that the requirements of Miranda were not met in this case.2 The California Supreme Court denied a petition for hearing, with two justices dissenting. App. D to Pet. for Cert.
21
This Court has never indicated that the "rigidity" of Miranda extends to the precise formulation of the warnings given a criminal defendant. See, e.g., United States v. Lamia, 429 F.2d 373, 375-376 (CA2), cert. denied, 400 U.S. 907, 91 S.Ct. 150, 27 L.Ed.2d 146 (1970). This Court and others have stressed as one virtue of Miranda the fact that the giving of the warnings obviates the need for a case-by-case inquiry into the actual voluntariness of the admissions of the accused. See Fare v. Michael C., 442 U.S., at 718, 99 S.Ct., at 2568; Harryman v. Estelle, supra. Nothing in these observations suggests any desirable rigidity in the form of the required warnings.
22
Quite the contrary, Miranda itself indicated that no talismanic incantation was required to satisfy its strictures. The Court in that case stated that "[t]he warnings required and the waiver necessary in accordance with our opinion today are, in the absence of a fully effective equivalent, prerequisites to the admissibility of any statement made by a defendant." 384 U.S., at 476, 86 S.Ct., at 1629 (emphasis supplied). See also id., at 479, 86 S.Ct., at 1630. Just last Term in considering when Miranda applied we noted that that decision announced procedural safeguards including "the now familiar Miranda warnings . . . or their equivalent." Rhode Island v. Innis, 446 U.S. 291, 297, 100 S.Ct. 1682, 1688, 64 L.Ed.2d 297 (1980) (emphasis supplied).
23
Other courts considering the precise question presented by this case—whether a criminal defendant was adequately informed of his right to the presence of appointed counsel prior to and during interrogation—have not required a verbatim recital of the words of the Miranda opinion but rather have examined the warnings given to determine if the reference to the right to appointed counsel was linked with some future point in time after the police interrogation. In United States v. Garcia, 431 F.2d 134 (CA9 1970) (per curiam), for example, the court found inadequate advice to the defendant that she could "have an attorney appointed to represent you when you first appear before the U. S. Commissioner or the Court." People v. Bolinski, supra, relied upon by the court below, is a case of this type. Two separate sets of warnings were ruled inadequate. In the first, the defendant was advised that "if he was charged . . . he would be appointed counsel." 260 Cal.App.2d, at 718, 67 Cal.Rptr., at 355 (emphasis supplied). In the second, the defendant, then in Illinois and about to be moved to California, was advised that " 'the court would appoint [an attorney] in Riverside County[, California].' " Id., at 723, 67 Cal.Rptr., at 359 (emphasis supplied). In both instances the reference to appointed counsel was linked to a future point in time after police interrogation, and therefore did not fully advise the suspect of his right to appointed counsel before such interrogation.
24
Here, in contrast, nothing in the warnings given respondent suggested any limitation on the right to the presence of appointed counsel different from the clearly conveyed rights to a lawyer in general, including the right "to a lawyer before you are questioned, . . . while you are being questioned, and all during the questioning." App. A to Pet. for Cert. 9-10; ii. Like United States v. Noa, 443 F.2d 144 (CA9 1971), where the warnings given were substantially similar to those given here and defendant's argument was the same as that adopted by the Court of Appeal, "[t]his is not a case in which the defendant was not informed of his right to the presence of an attorney during questioning . . . or in which the offer of an appointed attorney was associated with a future time in court. . . ." Id., at 146.
25
It is clear that the police in this case fully conveyed to respondent his rights as required by Miranda. He was told of his right to have a lawyer present prior to and during interrogation, and his right to have a lawyer appointed at no cost if he could not afford one. These warnings conveyed to respondent his right to have a lawyer appointed if he could not afford one prior to and during interrogation. The Court of Appeal erred in holding that the warnings were inadequate simply because of the order in which they were given.3
26
Because respondent was given the warnings required by Miranda, the decision of the California Court of Appeal to the contrary is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
27
It is so ordered.
28
Justice STEVENS, with whom Justice BRENNAN and Justice MARSHALL join, dissenting.
29
A juvenile informed by police that he has a right to counsel may understand that right to include one or more of three options: (1) that he has a right to have a lawyer represent him if he or his parents are able and willing to hire one; (2) that, if he cannot afford to hire an attorney, he has a right to have a lawyer represent him without charge at trial, even if his parents are unwilling to spend money on his behalf; or (3) that, if he is unable to afford an attorney, he has a right to consult a lawyer without charge before he decides whether to talk to the police, even if his parents decline to pay for such legal representation.1 All three of these options are encompassed within the right to counsel possessed by a juvenile charged with a crime. In this case, the first two options were explained to respondent, but the third was not.
30
In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, this Court held that in order to protect an accused's privilege against self-incrimination, certain procedural safeguards must be employed. In particular, an individual taken into police custody and subjected to questioning must be given the Miranda warnings:
31
"He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires." Id., at 479, 86 S.Ct., at 1629.
32
See also Rhode Island v. Innis, 446 U.S. 291, 297, 100 S.Ct. 1682, 1688, 64 L.Ed.2d 297. This formulation makes it clear beyond any doubt that an indigent accused has the right to the presence of an attorney and the right to have that attorney appointed to represent him prior to any questioning. While it is certainly true, as the Court emphasizes today, that the Federal Constitution does not require a "talismanic incantation" of the language of the Miranda opinion, ante, at 359, it is also indisputable that it requires that an accused be adequately informed of his right to have counsel appointed prior to any police questioning.
33
The California Court of Appeal in this case analyzed the warning given respondent, quoted ante, at 356-357, and concluded that he had not been adequately informed of this crucial right. The police sergeant informed respondent that he had the right to have counsel present during questioning and, after a brief interlude, informed him that he had the right to appointed counsel. See ibid. The Court of Appeal concluded that this warning was constitutionally inadequate, not because it deviated from the precise language of Miranda, but because
34
"[u]nfortunately, the minor was not given the crucial information that the services of the free attorney were available prior to the impending questioning." App. A to Pet. for Cert. 15 (emphasis in original).2
35
There can be no question that Miranda requires, as a matter of federal constitutional law, that an accused effectively be provided with this "crucial information" in some form. The Court's demonstration that the Constitution does not require that the precise language of Miranda be recited to an accused simply fails to come to terms with the express finding of the California Court of Appeal that respondent was not given this information. The warning recited by the police sergeant is sufficiently ambiguous on its face to provide adequate support for the California court's finding. That court's conclusion is at least reasonable, and is clearly not so patently erroneous as to warrant summary reversal.
36
The ambiguity in the warning given respondent is further demonstrated by the colloquy between the police sergeant and respondent's parents that occurred after respondent was told that he had the "right to have a lawyer appointed to represent you at no cost to yourself." Because lawyers are normally "appointed" by judges, and not by law enforcement officers, the reference to appointed counsel could reasonably have been understood to refer to trial counsel.3 That is what respondent's parents must have assumed, because their ensuing colloquy with the sergeant related to their option "to hire a lawyer."4
37
The judges on the California Court of Appeal and on the California Supreme Court, all of whom are presumably more familiar with the procedures followed by California police officers than we are, concluded that respondent was not adequately informed of his right to have a lawyer present without charge during the questioning. This Court is not at all fair to those judges when it construes their conscientious appraisal of a somewhat ambiguous record as requiring "a virtual incantation of the precise language contained in the Miranda opinion." Ante, at 355. It seems clear to me that it is this Court, rather than the state courts, that is guilty of attaching greater importance to the form of the Miranda ritual than to the substance of the message it is intended to convey.
38
I respectfully dissent.
1
The tape reflects the following concerning the off-the-record discussion:
"Sgt. Byrd: . . . Okay, Mrs. Prysock, you asked to get off the tape . . . . During that time you asked, decided you wanted some time to think about getting, whether to hire a lawyer or not.
"Mrs. P.: 'Cause I didn't understand it.
"Sgt. Byrd: And you have decided now that you want to go ahead and you do not wish a lawyer present at this time?
"Mrs. P.: That's right.
"Sgt. Byrd: And I have not persuaded you in any way, is that correct?
"Mrs. P.: No, you have not.
"Sgt. Byrd: And, Mr. Prysock is that correct that I have done nothing to persuade you not to, to hire a lawyer or to go on with this?
"Mr. P.: That's right.
"Sgt. Byrd: Okay, everything we're doing here is strictly in accordance with Randall and yourselves, is that correct?
"Mr. P.: That is correct.
"Sgt. Byrd: Okay. Uh, all right, Randy, I can't remember where I left off, I think I asked you, uh, with your legal rights in mind, do you wish to talk to me at this time? This is with everything I told you, all your legal rights, your right to an attorney, your right, and your right to remain silent, and all these, I mean do you wish to talk to me at this time about the case?
"Randall P.: Yes." App. A to Pet. for Cert. iii-iv.
2
Contrary to respondent's suggestion, it is clear that the decision below was based on federal law. The Court of Appeal stated that it was reversing and ordering a new trial "because of Miranda error." Id., at 4.
3
The dissent, arguing that the Court of Appeal opinion is unfairly criticized as requiring mimicking of Miranda, post, at 365-366, ignores substantial portions of the opinion below and substitutes arguments of its own for those articulated by the Court of Appeal. For example, the dissent makes no mention of the lower court's stress on the "precise requirements" of Miranda or its "rigidity" in this area, and ignores the portion of the opinion in which the court quotes from Miranda and then criticizes the officer for not repeating the exact language in advising respondent of his rights. See App. A to Pet. for Cert. 12-14. The Court of Appeal did conclude that respondent was not advised of his right to appointed counsel prior to and during interrogation, but this was because the officer did not parrot the language of Miranda. The more substantive reasons suggested by the dissent are implausible. The reference to "appointed" counsel has never been considered as suggesting that the availability of counsel was postponed, and Mrs. Prysock's off-the-record conversation was occasioned by her fear that waiving the right to counsel at interrogation would occasion a waiver of the right to counsel later in court, App. A to Pet. for Cert. 11, clearly indicating that the officer conveyed the right to counsel at interrogation.
1
In his dissenting opinion in Miranda v. Arizona, 384 U.S. 436, 504, 86 S.Ct. 1602, 1643, 16 L.Ed.2d 694, Justice Harlan accurately summarized the four essential elements of the warning that must be given a person in custody before he is questioned, "namely, that he has a right to remain silent, that anything he says may be used against him, that he has a right to have present an attorney during the questioning, and that if indigent he has a right to a lawyer without charge."
2
According to the Court of Appeal, the principal defect in the warning was that the police sergeant, in a "needless excursion," inserted a discussion of respondent's right to have his parents present between the description of the right to have counsel present during questioning and the description of the right of an indigent to have counsel appointed to represent him. See App. A to Pet. for Cert. 14-15. The subsequent untaped conversation "obfuscated, rather than clarified" the matter. Id., at 15. The warnings given respondent were defective, not because "the officer did not parrot the language of Miranda," ante, at 361, n. 3, but because, in the form in which the warnings were given, they failed to convey the essential information required by Miranda.
3
The fact that the reference also might have been understood to refer to the appointment of counsel prior to questioning does not undercut the Court of Appeal's conclusion. Miranda requires "meaningful advice to the unlettered and unlearned in language which he can comprehend and on which he can knowingly act." Coyote v. United States, 380 F.2d 305, 308 (CA10 1967), cert. denied, 389 U.S. 992, 88 S.Ct. 489, 19 L.Ed.2d 484. Such meaningful advice is not provided by a warning which requires that an accused choose among several reasonable interpretations of the language employed by a police officer in a custodial situation.
4
The Court simply ignores the significance of the references to hiring a lawyer in the colloquy which it quotes ante, at 357-358, n. 1. The colloquy bears repeating:
"Sgt. Byrd: . . . Okay, Mrs. Prysock, you asked to get off the tape . . . During that time you asked, decided you wanted some time to think about getting, whether to hire a lawyer or not.
"Mrs. P.: 'Cause I didn't understand it.
"Sgt. Byrd: And you have decided now that you want to go ahead and you do not wish a lawyer present at this time?
"Mrs. P.: That's right.
"Sgt. Byrd: And I have not persuaded you in any way, is that correct?
"Mrs. P.: No, you have not.
"Sgt. Byrd: And, Mr. Prysock is that correct that I have done nothing to persuade you not to, to hire a lawyer or to go on with this?
"Mr. P.: That's right.
"Sgt. Byrd: Okay, everything we're doing here is strictly in accordance with Randall and yourselves, is that correct?
"Mr. P.: That is correct.
"Sgt. Byrd: Okay. Uh, all right, Randy, I can't remember where I left off, I think I asked you, uh, with your legal rights in mind, do you wish to talk to me at this time? This is with everything I told you, all your legal rights, your right to an attorney, your right, and your right to remain silent, and all these, I mean do you wish to talk to me at this time about the case?
"Randall P.: Yes." App. A to Pet. for Cert. iii-iv (emphasis added).
| 01
|
453 U.S. 322
101 S.Ct. 2789
69 L.Ed.2d 672
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.
AMAX COAL COMPANY, A DIVISION OF AMAX, INC., et al. UNITED MINE WORKERS OF AMERICA, LOCAL NO. 1854 et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD et al.
Nos. 80-692, 80-289.
Argued April 28, 1981.
Decided June 29, 1981.
Rehearings Denied Sept. 23, 1981.
See 453 U.S. 950, 102 S.Ct. 26.
Syllabus
Amax Coal Co. owns several deep-shaft coal mines in the Midwest, with respect to which it is a member of the Bituminous Coal Operators Association (BCOA), a national multiemployer group that bargains with the union representing Amax's employees. Under a collective-bargaining contract with the union, Amax, along with other members of the BCOA agreed to contribute to the union's national pension and welfare trust funds, which were established under § 302(c)(5) of the Labor Management Relations Act (LMRA). In accord with § 302(c)(5)(B), the trust funds are administered by three trustees, one selected by the union, one by members of the BCOA, and one by the other two. When Amax opened a surface mine in Wyoming, with respect to which it did not join the BCOA, Amax and the union negotiated a separate collective-bargaining contract under which Amax contributed specified amounts of money to the national trust funds to benefit the employees at the surface mine. When this contract ended, the union struck the surface mine and others, in an attempt to compel the mine owners to establish a multiemployer bargaining unit and to agree to a new contract under which the members of the new employer unit would contribute to the national trust funds. When subsequent separate negotiations between the union and Amax came to an impasse and the strike continued at the surface mine, Amax filed with the National Labor Relations Board (NLRB) unfair labor practice charges against the union. Amax claimed that any management-appointed trustee of the § 302(c)(5) trust fund was a collective-bargaining "representative" of the employer within the meaning of § 8(b)(1)(B) of the National Labor Relations Act—which makes it an unfair labor practice for a union "to restrain or coerce . . . an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances"—and that therefore, since the management trustee of the national trust funds had already been selected by the BCOA, the union's insistence that it participate in the national trust funds with regard to the surface mine employees constituted illegal coercion under § (8)(b)(1)(B). The NLRB held that the union had not violated § 8(b)(1)(B). The Court of Appeals reversed, holding that management-appointed trustees of a § 302(c)(5) trust fund act as both fiduciaries of the employee beneficiaries and as agents of the appointing employers, and, insofar as is consistent with their fiduciary obligations, are expected to administer the trusts in such a way as to advance the employer's interests. The court accordingly concluded that the union had violated § 8(b)(1)(B) in exerting its economic power to induce Amax to participate in the national trust funds with respect to the surface mine employees.
Held: Employer-selected trustees of a § 302(c)(5) trust fund are not "representatives" of the employer "for the purposes of collective bargaining or the adjustment of grievances" within the meaning of § 8(b)(1)(B). Pp. 328-338.
(a) The duty of the management-appointed trustee of a § 302(c)(5) fund is inconsistent with that of an agent of the appointing party. Given the established rule of the law of trusts that a trustee has an unwavering duty of complete loyalty to the beneficiary of a trust, to the exclusion of the interests of all other parties, and the use in § 302(c)(5) of such terms as "held in trust" and "for the sole and exclusive benefit of the employees . . . and their families and dependents," it must be inferred that Congress intended to incorporate the law of trusts, unless it has unequivocally expressed a contrary intent. Nothing in § 302(c)(5)'s language reveals any intent that a trustee should or may administer a trust fund in the interest of the party that appointed him, or that an employer may direct or supervise the decisions of the trustee he has appointed. And the LMRA's legislative history confirms that § 302(c)(5) was designed to reinforce, not to alter, a trustee's established duty. Pp. 328-332.
(b) Whatever may have been implicit in Congress' view of a trustee of a § 302(c)(5) fund became explicit when Congress enacted the Employee Retirement Income Security Act of 1974 (ERISA), which essentially codified the strict fiduciary standards that a § 302(c)(5) trustee must meet. And the ERISA's legislative history confirms that Congress intended to prevent such a trustee from being put in a position where he has dual loyalty. Pp. 332-334.
(c) Section 8(b)(1)(B) was primarily enacted to prevent unions from forcing employers to join multiemployer bargaining units, or to dictate the identity of those who would represent employers in collective-bargaining negotiations or settlement of employee grievances. A union's power to strike or bargain to impasse to induce an employer to contribute to a multiemployer trust fund does not pose the danger Congress thereby sought to prevent. Moreover, union pressure to force an employer to contribute to an established trust fund does not amount to dictating to an employer who shall represent him in collective bargaining and the adjustment of grievances, because the trustees of a § 302(c)(5) trust fund simply do not, as such, engage in these activities. Pp. 334-338.
614 F.2d 872 (3 Cir.), reversed and remanded.
Harlon L. Dalton, Washington, D.C., for N.L.R.B.
Harrison Combs, Washington, D.C., for UMW of America, et al.
Daniel F. Gruender, Phoenix, Ariz., for Amax Coal Company, et al.
Justice STEWART delivered the opinion of the Court.
1
This litigation concerns the relationship between two important provisions of the Labor Management Relations Act, 1947 (LMRA).1 Section 8(b)(1)(B) of the National Labor Relations Act as amended by § 101 of the LMRA, 61 Stat. 141, makes it an unfair labor practice for a union "to restrain or coerce . . . an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances . . . ."2 Section 302(c)(5) of the LMRA, 61 Stat. 157, permits employers and unions to create employer-financed trust funds for the benefit of employees so long as employees and employers are equally represented by the trustees of the funds.3 The question at issue is whether the employer-selected trustees of a trust fund created under § 302(c)(5) are "representatives" of the employer "for the purposes of collective bargaining or the adjustment of grievances" within the meaning of § 8(b)(1)(B).
2
* The Amax Coal Co. owns several deep-shaft bituminous coal mines, most of them in the Midwestern United States. The United Mine Workers of America (the union) represents Amax's employees, and, with respect to the midwestern mines, Amax is a member of the Bituminous Coal Operators Association (BCOA), a national multiemployer group that bargains with the union. Through its collective-bargaining contract with the union, Amax, along with the other members of the BCOA, agreed to contribute to the union's national pension and welfare trust funds. These funds, established under § 302(c)(5) of the Act, provide comprehensive health and retirement benefits to coal miners and their families. In accord with § 302(c)(5)(B), the trust funds are administered by three trustees, one selected by the union, one by the members of BCOA, and one by the other two.4
3
In 1972, Amax opened the Belle Ayr Mine in Wyoming, the company's first sub-bituminous surface mine. Although Amax did not join the BCOA with respect to that mine, Amax and the union negotiated a collective-bargaining contract for Belle Ayr which resembled the BCOA national contract, and under which Amax contributed specified amounts of money to the national trust funds to benefit the employees at Belle Ayr. In January 1975, when the collectively-bargained contract covering the Belle Ayr Mine ended, the union struck Belle Ayr and other western mines, attempting to compel the mine owners to establish a multiemployer bargaining unit and to agree to a new collective contract proposed by the union, under which the members of the new employer unit would contribute to the national trust funds. Amax resisted, and the union, threatened with a complaint from the National Labor Relations Board Regional Counsel for illegally attempting to coerce the employer into a multiemployer bargaining unit, soon began separate negotiations with Amax. Those negotiations came to an impasse, and the union continued its strike at the Belle Ayr Mine. Amax then filed with the Board unfair labor practice charges against the union.
4
The matter of pension and welfare benefits had been a major barrier to agreement between Amax and the union, and formed an important part of Amax's charges before the Board. Amax had proposed its own benefit and pension trust plan, outside the purview of § 302(c)(5), but the union, claiming that such a plan would not be sufficiently portable to or reciprocal with the national trust funds, had rejected this proposal. Rather, the union had insisted that Amax, even as a separately bargaining employer, continue to contribute to the national trust funds for the Belle Ayr employees. Amax, of course, as a member of BCOA, had participated in selecting the management-appointed trustee of the national trust funds, but it now wanted to appoint its own trustee for any trust fund covering the employees of the Belle Ayr Mine. Amax took the view that any management-appointed trustee of a § 302(c)(5) trust fund was a collective-bargaining "representative" of the employer within the meaning of § 8(b)(1)(B); therefore, since the management trustee of the national trust fund had already been selected by BCOA, Amax contended that the union's insistence that it participate in the national trust funds with regard to Belle Ayr employees constituted illegal coercion under § 8(b)(1)(B) of the Act. Amax also charged the union with refusing to bargain in good faith in violation of § 8(b)(3) of the Act.5
5
The National Labor Relations Board unanimously concluded that the union had acted legally in bargaining to impasse and striking to obtain Amax's participation in the national trust funds for the Belle Ayr employees.6 The Board noted that the purpose of § 8(b)(1)(B) was to ensure that an employer can bargain through a freely chosen representative completely faithful to his interests under the principles of agency law, while the trustee of a joint trust fund, though he may appropriately consider the recommendations of the party who appoints him, is a fiduciary owing undivided loyalty to the interest of the beneficiaries in administering the trust.7 Accordingly, the Board concluded that the union had not violated § 8(b)(1)(B).
6
On cross-petitions by the parties, the Court of Appeals for the Third Circuit relying on its earlier decision in Associated Contractors of Essex County, Inc. v. Laborers International Union, 559 F.2d 222, 227-228 (2 Cir.), held that management-appointed trustees of a § 302(c)(5) trust fund act as both fiduciaries of the employee-beneficiaries and as agents of the appointing employers and, insofar as is consistent with their fiduciary obligations, are expected to administer the trusts in such a way as to advance the employer's interests. 614 F.2d 872, 881-882, (3 Cir.). The court therefore concluded that the union had acted in violation of § 8(b)(1)(B) in exerting its economic power to induce Amax to participate in the national trust funds with respect to employees of the Belle Ayr Mine, and reversed the Board's ruling to the contrary. We granted certiorari to consider the important question of federal labor law these cases present. 449 U.S. 1110, 101 S.Ct. 917, 66 L.Ed.2d 838.
II
7
Although § 302(a) of the Act8 generally prohibits an employer from making payments to any representative of his employees, § 302(c)(5) allows an employer to contribute to an employee benefit trust fund that satisfies certain statutory requirements. To ensure that the funds in such a trust are not used as a union "war chest," Arroyo v. United States, 359 U.S. 419, 426, 79 S.Ct. 864, 868, 3 L.Ed.2d 915, the Act provides that the funds may be used only for specified benefits for employees and their dependents, and that the basis for these payments be laid out in a detailed written agreement between the union and the employer.9 The fund must be subject to an annual audit, and the results of the audit must be made available to all interested persons.10 Furthermore, pension or annuity funds must be kept in a trust separate from other union welfare funds.11 Finally, § 302(c)(5)(B) requires that "employees and employers [be] equally represented in the administration of such funds together with such neutral persons as the representatives of the employers and the representatives of the employees may agree upon . . . ."12
8
Congress directed that union welfare funds be established as written formal trusts, and that the assets of the funds be "held in trust," and be administered "for the sole and exclusive benefit of the employees . . . and their families and dependents . . . ." 29 U.S.C. § 186(c)(5). Where Congress uses terms that have accumulated settled meaning under either equity or the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms. See Perrin v. United States, 444 U.S. 37, 42-43, 100 S.Ct. 311, 314-15, 62 L.Ed.2d 199. Under principles of equity, a trustee bears an unwavering duty of complete loyalty to the beneficiary of the trust, to the exclusion of the interests of all other parties. Restatement (Second) of Trust § 170(1) (1957); 2 A. Scott, Law of Trusts § 170 (1967). To deter the trustee from all temptation and to prevent any possible injury to the beneficiary, the rule against a trustee dividing his loyalties must be enforced with "uncompromising rigidity." Meinhard v. Salmon, 249 N.Y. 458, 464, 164 N.E. 545, 546 (Cardozo, C.J.). A fiduciary cannot contend "that, although he had conflicting interests, he served his masters equally well or that his primary loyalty was not weakened by the pull of his secondary one." Woods v. City National Bank & Trust Co., 312 U.S. 262, 269, 61 S.Ct. 493, 497, 85 L.Ed. 820.
9
Given this established rule against dual loyalties and Congress' use of terms long established in the courts of chancery, we must infer that Congress intended to impose on trustees traditional fiduciary duties unless Congress has unequivocally expressed an intent to the contrary. See Owens v. City of Independence, 445 U.S. 622, 637, 100 S.Ct. 1398, 1408, 63 L.Ed.2d 673. However, although § 302(c)(5)(B) requires an equal balance between trustees appointed by the union and those appointed by the employer, nothing in the language of § 302(c)(5) reveals any congressional intent that a trustee should or may administer a trust fund in the interest of the party that appointed him, or that an employer may direct or supervise the decisions of a trustee he has appointed.13 And the legislative history of the LMRA confirms that § 302(c)(5) was designed to reinforce, not to alter, the long-established duties of a trustee.
10
As explained by Senator Ball, one of the two sponsors of the provision, the "sole purpose" of § 302(c)(5) is to ensure that employee benefit trust funds "are legitimate trust funds, used actually for the specified benefits to the employees of the employers who contribute to them . . . ." 93 Cong.Rec. 4678 (1947). Senator Ball stated that "all we seek to do by [§ 302(c)(5)] is to make sure that the employees whose labor builds this fund and are really entitle to benefits under it shall receive the benefits; that it is a trust fund, and that, if necessary, they can go into court and obtain the benefits to which they are entitled." Id., at 4753; see H.R.Conf. Rep. No. 510, 80th Cong., 1st Sess., 66-67 (1947), 1 NLRB, Legislative History of the Labor-Management Relations Act, 1947, p. 570 (1948) (Leg.Hist. LMRA). The debates on § 302(c)(5) further reveal Congress' intent to cast employee benefit plans in traditional trust form precisely because fiduciary standards long established in equity would best protect employee beneficiaries. For example, one opponent of the bill suggested that § 305(c)(5) was unnecessary because even without that provision, the "officials who administer [the fund] thereby become trustees, subject to all of the common law and State safeguards against misuse of funds by trustees." 93 Cong.Rec. 4751 (1947) (Sen. Morse). Senator Taft, the primary author of the entire Act, answered that many existing funds were not created expressly as trusts, and that § 302(c)(5)'s requirement that each fund be an express and enforceable trust would ensure that the future operations of all such funds would be subject to supervision by a court of chancery. 93 Cong.Rec. 4753 (1947). See also id., at 4678 (Sen. Ball); id., at 3564-3565 (Rep. Case, author of House bill on which § 302(c)(5) was patterned). In sum, the duty of the management-appointed trustee of an employee benefit fund under § 302(c)(5) is directly antithetical to that of an agent of the appointing party.14
11
Whatever may have remained implicit in Congress' view of the employee benefit fund trustee under the act became explicit when Congress passed the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 829. ERISA essentially codified the strict fiduciary standards that a § 302(c)(5) trustee must meet. See 29 U.S.C. §§ 1002(1) and (2); H.R.Conf.Rep.No.93-1280, pp. 296, 307 (1974), U.S.Code Cong. & Admin.News 1974, p. 4639. Section 404(a)(1) of ERISA requires a trustee to "discharge his duties . . . solely in the interest of the participants and beneficiaries . . . ." 29 U.S.C. § 1104(a)(1).15 Section 406(b)(2) declares that a trustee may not "act in any transaction involving the plan on behalf of a party (or represent a party) whose interests are adverse to the interests of the plan or the interests of its participants or beneficiaries." 29 U.S.C. § 1106(b)(2). Section 405(a) imposes on each trustee an affirmative duty to prevent every other trustee of the same fund from breaching fiduciary duties, including the duty to act solely on behalf of the beneficiaries. 29 U.S.C. § 1105(a).
12
Moreover, the fiduciary requirements of ERISA specifically insulate the trust from the employer's interest. Except in circumstances involving excess contributions or termination of the trust, "the assets of a plan shall never inure to the benefit of any employer and shall be held for the exclusive purposes of providing benefits to participants in the plan and their beneficiaries and defraying reasonable expenses of administering the plan." § 403(c)(1), 29 U.S.C. § 1103(c)(1). Finally, § 406(a)(1)(E) prohibits any transaction between the trust and a "party in interest," including an employer, and § 407 carefully limits the amount and types of employer-owned property and securities that the trustees may obtain for the trust. 29 U.S.C. §§ 1106(a)(1)(E), 1107.16 In sum, ERISA vests the "exclusive authority and discretion to manage and control the assets of the plan" in the trustees alone, and not the employer or the union. 29 U.S.C. § 1103(a).
13
The legislative history of ERISA confirms that Congress intended in particular to prevent trustees "from engaging in actions where there would be a conflict of interest with the fund, such as representing any party dealing with the fund." S.Rep.No.93-383, pp. 31, 32 (1973), U.S.Code Cong. & Admin.News 1974, p. 4917. In short, the fiduciary provisions of ERISA were designed to prevent a trustee "from being put into a position where he has dual loyalties, and, therefore, he cannot act exclusively for the benefit of a plan's participants and beneficiaries." H.R.Conf.Rep.No.93-1280, supra, at 309, U.S.Code Cong. & Admin.News 1974, p. 5089.17
III
14
The language and legislative history of § 302(c)(5) and ERISA therefore demonstrate that an employee benefit fund trustee is a fiduciary whose duty to the trust beneficiaries must overcome any loyalty to the interest of the party that appointed him. Thus, the statutes defining the duties of a management-appointed trustee make it virtually self-evident that welfare fund trustees are not "representatives for the purposes of collective bargaining or the adjustment of grievances" within the meaning of § 8(b)(1)(B). But close examination of the latter provision makes it even clearer that it does not limit the freedom of a union to try to induce an employer to select a particular § 302(c)(5) trustee.18
15
Congress enacted § 8(b)(1)(B) largely to prevent unions from forcing employers to join multiemployer bargaining units, or to dictate the identity of those who would represent employers in collective-bargaining negotiations or the settlement of employee grievances. See American Broadcasting Cos. v. Writers Guild, 437 U.S. 411, 422-423, 429-431, 435-436, 98 S.Ct. 2423, 2430-31, 2433-34, 2437, 57 L.Ed.2d 313; Florida Power & Light Co. v. Electrical Workers, 417 U.S. 790, 803, 94 S.Ct. 2737, 2744, 41 L.Ed.2d 477; S.Rep.No.105, 80th Cong., 1st Sess., pt. 1, p. 21 (1947), 1 Leg.Hist. LMRA, at 427; 93 Cong.Rec. 4143 (1947) (Sen. Ellender).19 The legislative history reveals the concern of some Senators that if unions could strike or bargain to impasse to compel employers to join industrywide bargaining units, the large unions might exercise monopoly power over wages or call strikes threatening large portions of the national economy. S.Rep.No.105, pt. 1, supra, at 51, 1 Leg.Hist. LMRA, at 457; 93 Cong.Rec. 4582-4588 (1947) (Sen. Taft). However, the power of a union to strike or bargain to impasse to induce an employer to contribute to a multiemployer trust fund does not pose the danger Congress sought to prevent. Congress treated the issues of multiemployer bargaining units and multiemployer trust funds quite distinctly. It is permissible under the law, and may be in the interest of the public, for an employer to bargain separately with a union, independently of any industrywide employer association, while the union exerts economic pressure to obtain protection for the employees through the medium of a multiemployer benefit fund.
16
Moreover, union pressure to force an employer to contribute to an established employee trust fund does not amount to dictating to an employer who shall represent him in collective bargaining and the adjustment of grievances, because the trustees of a § 302(c)(5) trust fund simply do not, as such, engage in these activities. The term "collective bargaining" in § 8(b)(1)(B) of the Act is defined by § 8(d):
17
"[T]he performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession . . . ." 29 U.S.C. § 158(d).
18
Under this definition, the collective-bargaining representatives of an employer and a union attempt to reach an agreement by negotiation, and, failing agreement, are free to settle their differences by resort to such economic weapons as strikes and lockouts, without any compulsion to reach agreement. See Carbon Fuel Co. v. Mine Workers, 444 U.S. 212, 219, 100 S.Ct. 410, 415, 62 L.Ed.2d 394; NLRB v. Insurance Agents, 361 U.S. 477, 495, 80 S.Ct. 419, 430, 4 L.Ed.2d 454.
19
The atmosphere in which employee benefit trust fund fiduciaries must operate, as mandated by § 302(c)(5) and ERISA, is wholly inconsistent with this process of compromise and economic pressure. The management-appointed and union-appointed trustees do not bargain with each other to set the terms of the employer-employee contract; they can neither require employer contributions not required by the original collectively bargained contract, nor compromise the claims of the union or the employer with regard to the latter's contributions. Rather, the trustees operate under a detailed written agreement, 29 U.S.C. § 186(c)(5)(B), which is itself the product of bargaining between the representatives of the employees and those of the employer.20 Indeed, the trustees have an obligation to enforce the terms of the collective bargaining agreement regarding employee fund contributions against the employer "for the sole benefit of the beneficiaries of the fund." United States v. Carter, 353 U.S. 210, 220, 77 S.Ct. 793, 798, 1 L.Ed.2d 776. Finally, disputes between benefit fund trustees over the administration of the trust cannot, as can disputes between parties in collective bargaining, lead to strikes, lockouts, or other exercises of economic power. Rather, whereas Congress has expressly rejected compulsory arbitration as a means of resolving collective-bargaining disputes, § 302(c)(5) explicitly provides for the compulsory resolution of any deadlocks among welfare fund trustees by a neutral umpire. Compare 29 U.S.C. § 158(d) with 29 U.S.C. § 186(c)(5); see n. 12, supra.21
20
Like collective bargaining, the adjustment of grievances concerns the relationship between employer and employee. See 29 U.S.C. § 159(a). The trustees' concern, however, is the relationship between the beneficiaries and the fund. The only "grievances" it may adjust are those concerning the eligibility of employees or their dependents for participation in the benefits of the fund. See Chemical Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 164-171, 92 S.Ct. 383, 393, 30 L.Ed.2d 341. And whereas Congress has adopted the principle of voluntary settlement, free of governmental compulsion, in the adjustment of employee grievances against the employer, § 203(d) of the Act, 29 U.S.C. § 173(d), a trustee deadlock over eligibility matters, like any other deadlock, must be submitted to the compulsory resolution procedure established by § 302(c)(5).
21
"Both the language and the legislative history of § 8(b)(1)(B) reflect a clearly focused congressional concern with the protection of employers in the selection of representatives to engage in two particular and explicitly stated activities, namely collective bargaining and the adjustment of grievances." Florida Power & Light Co. v. Electrical Workers, 417 U.S., at 803, 94 S.Ct., at 2744. The duties of an employer-appointed trustee of an employee benefit trust fund, under § 302(c)(5) of the Act, under principles long ago developed in the courts of chancery, and under the specific provisions of ERISA, are totally alien to both of these activities. The Court of Appeals, therefore, was mistaken in believing that the conduct of the union in this case violated the provisions of § 8(b)(1)(B).22
22
For the reasons stated, the judgment of the Court of Appeals is reversed, and the cases are remanded for proceedings consistent with this opinion.
23
It is so ordered.
24
Justice STEVENS, dissenting.
25
The key to this case, in my judgment, is the distinction between the process by which a person is appointed to office and the manner in which he performs that office after he has been appointed. Congress has provided that labor and management shall each appoint the same number of representatives to serve as trustees of jointly administered employee pension and welfare funds.1 Giving each side of the bargaining table exclusive control of the appointment of half of the trustees does not compromise in any way the fiduciary obligations of the trustees after they assume office. Conversely, the imposition of fiduciary responsibilities on the trustees after they have been appointed surely does not lend any support to the Court's quixotic notion that a union may interfere—by a strike if necessary—with management's selection of its representatives.
26
Three quite different theories might provide a basis for deciding this case in favor of the United Mine Workers (the union). First, the Court might conclude that the union was merely trying to induce Amax to agree to contribute to the national multiemployer trust funds and that it had no interest in the identity of the management trustees of those funds. Second, the Court might conclude that because Amax, as a member of the Bituminous Coal Operators Association, actually participated in the selection of the management trustees of the union's national trust funds, there is no basis for its claim that the union was interfering with that prerogative of management. Third, the Court might conclude that it is permissible for a union to restrain or to coerce an employer in the selection of its representatives for the purpose of administering joint employee pension and welfare funds.
27
If the Court relied on either of the first two rationales, or if its opinion could be read as resting on a blend of all three, this case would not be particularly significant. I believe, however, that the Court's opinion will be read as holding that it is not an unfair labor practice for a union to attempt to exercise an economic veto over an employer's selection of the management trustees of a jointly administered employee benefit fund.2 In my opinion, that holding is foreclosed by rather plain statutory language and is flagrantly at odds with the intent of Congress.
28
* The equal representation requirement of § 302(c)(5) is one of a number of restrictions employed by Congress to prevent the mismanagement or misuse of employee benefit funds by union officials. See, e. g., Arroyo v. United States, 359 U.S. 419, 426, 79 S.Ct. 864, 868, 3 L.Ed.2d 915; Associated Contractors, Inc. v. Laborers International Union, 559 F.2d 222, 226 (CA3 1977).3 Equal representation was required, not to satisfy employer demands for a voice in benefit fund administration,4 but to insure that money paid for the welfare of employees actually was used for that purpose. As Senator Taft explained:
29
"Certainly unless we impose some restrictions we shall find that the welfare fund will become merely a war chest for the particular union, and that the employees for whose benefit it is supposed to be established, for certain definite welfare purposes, will have no legal rights and will not receive the kind of benefits to which they are entitled after such deductions from their wages.
30
"This amendment is, in effect, a provision to prevent the abuse of the right to establish such funds by collective bargaining, pending further study of the whole problem. Otherwise I think we shall find that the welfare fund will become a racket. In many unions it is very easy for it to become a racket." 93 Cong.Rec. 4747 (1947).
31
The requirement of equal labor-management representation is a central factor in the congressional formula to prevent such abuse. See, e. g., Associated Contractors, Inc., supra, at 227; Toensing v. Brown, 374 F.Supp. 191, 195 (N.D.Cal.1974), aff'd, 528 F.2d 69 (CA9 1975).
32
Although the Court repeatedly uses the word "trustee" to identify the persons who administer pension and welfare funds established in compliance with § 302(c)(5), Congress used the word "representative." See 29 U.S.C. § 186(c)(5). Congress' use of this term does not, of course, qualify the fiduciary responsibilities of those persons.5 It is nevertheless important for two reasons. First, it is a reminder that one of the means selected by Congress for insuring neutrality in the administration of a trust fund was to give each side of the bargaining table an equal voice in the selection of trustees. Second, it is a recognition of the fact that the administration of a trust fund often gives rise to questions over which representatives of management and representatives of labor may have legitimate differences of opinion that are entirely consistent with their fiduciary duties.
33
The Court's extended discussion of the fiduciary responsibilities of employee benefit fund trustees has, in my judgment, little bearing on the question presented in this case. It is undisputed that such trustees are fiduciaries whose primary loyalty must be to the beneficiaries of the funds. The question with which we are confronted here is whether this fiduciary duty is necessarily wholly inconsistent with "representative" status. The Court answers this question in the affirmative by citing traditional principles of trust law and their federal statutory counterparts. This approach leads the Court into error because it ignores the purpose underlying § 302(c)(5) and the carefully designed means chosen by Congress to achieve that purpose.
34
The trustees of employee benefit funds often exercise broad discretion on policy matters with respect to which management and labor representatives may reasonably have different views. Besides describing the trustees as "representatives," Congress expressly recognized in § 302(c)(5) that such differences would arise, for it provided a procedure to resolve such differences in the event of a deadlock between "the employer and employee groups." Nothing in the statute or the legislative history suggests that differences along labor-management lines are in any way inconsistent with the trustees' fiduciary duty to the trust beneficiaries. Indeed, it is precisely because management and the union can have legitimate differences with respect to matters of trust administration that the equal representation requirement serves as an effective safeguard. Although the Court seems to ignore this principle in its decision today, it has been recognized in the past by other federal courts6 and by the commentators.7
35
The trust agreement at issue in this case allows ample room for such labor-management differences. For example, it authorizes the trustees to determine how much money cash operator shall contribute to the fund on account of the production of salvaged coal. See App. 98k-98l. That kind of detail could be covered in the basic collective-bargaining agreement or left to the trustees for resolution in the light of changing circumstances. When the trustees resolve such an issue, one surely could not charge a management representative with a breach of trust merely for favoring a lower rate than the union representatives suggest.
36
The Court states that the trustees may never "compromise the claims of the union or the employer with regard to the latter's contributions" to the fund. Ante, at 336. But what if one contributor to a multiemployer fund is unable to pay its bills currently? Do trustees have no power to enter into temporary arrangements or compromises?8 In making decisions regarding the investment of the assets of the fund, legitimate differences among faithful trustees certainly may arise. Conceivably, management representatives may favor conservative investment policies that are best designed to guarantee the long-range solvency of the fund while labor representatives may favor investments with higher yields that will support a demand for more liberal benefits at the next bargaining session. No written trust agreement can entirely eliminate the need for discretionary decisions by trustees nor make it impermissible for the trustees to give consideration to the interests that they represent when confronting day-to-day administrative problems.
37
Some of the issues the trustees must resolve in processing applications for benefits are almost identical to those that arise in grievance proceedings. Rights to pension benefits and to seniority are measured, in part, by the employee's length of service. Either in the adjustment of a grievance over seniority or in the trustees' approval or disapproval of a claim for retirement benefits, it may be necessary to resolve a dispute over how to measure the period of employment. Bargaining units tend to develop an unwritten "law of the shop" to resolve such recurring minor disputes; it seems to me equally permissible for trustees to develop a similar common law of their own and for representatives of the two sides of the bargaining table to reflect different points of view as that law develops. The guarantee of impartiality in making decisions of this kind is not a total divorce of every trustee from the interests that he represents; rather, neutrality is guaranteed by having an equal number of "representatives" of the two conflicting interests make the decisions, subject always to their basic obligation as fiduciaries. That this is the scheme of the statute is perfectly clear from its terms.9
38
It is equally clear that this scheme will be compromised if the employer's selection of his representatives is now to be a subject of collective bargaining. The danger to the legislative scheme is not mitigated by the fact that the employer need not agree with the union's demand that a particular person be named a management trustee. The employer may consider it less costly to give the union a veto over the selection of the management trustees than to grant a wage increase.10 Any bargaining over the identity of a trustee inevitably will destroy the precise balance that Congress intended by directing that each side shall select its own representatives. As Justice BLACKMUN aptly stated while a member of the Court of Appeals for the Eighth Circuit:
39
"[T]o permit the union in any degree to participate in the choice of employer representatives does violence to the statutory standard of equal representation." Blassie v. Kroger Co., 345 F.2d 58, 72 (1965).11
40
In my opinion, the Court today "does violence to the statutory standard" because it misapprehends the safeguard established by Congress in § 302(c)(5), and instead applies to this case principles of trust law and statutory provisions that have little, if any, relevance to the precise question presented.
II
41
In addition to arguing that there is an inherent inconsistency between the duties of a "trustee" and the duties of a "representative"—and therefore that the trustees of an employee benefit fund cannot be representatives even though they are so named by Congress—the Court suggests that in any event these representatives are not selected "for the purposes of collective bargaining or the adjustment of grievances" within the meaning of § 8(b)(1)(B), 29 U.S.C. § 158(b)(1)(B).12 The Court seems to read this provision as a narrow, precisely defined prohibition against interference with the selection of a relatively small number of representatives whose primary function is to represent the employer in collective-bargaining negotiations or in the adjustment of grievances. Once again, the Court overlooks the distinction between interfering with the selection process and interfering with the performance of a supervisor's duties after he has been selected. I believe the Court's narrow construction was not intended by Congress, and that the statute prohibits union interference with management's selection of all personnel who have any, however minor, collective-bargaining or grievance-adjustment responsibilities. When § 8(b)(1)(B) is read in light of its purpose and legislative history, it is plain that the prohibition applies to the selection of the employer's representatives in the administration of joint benefit funds.
42
The Court's narrow view of § 8(b)(1)(B) has its source in Florida Power & Light Co. v. Electrical Workers, 417 U.S. 790, 94 S.Ct. 2737, 41 L.Ed.2d 477—a case that did not involve any direct interference with the employer's selection of supervisors. In that case, we held that "a union's discipline of one of its members who is a supervisory employee can constitute a violation of § 8(b)(1)(B) only when that discipline may adversely affect the supervisor's conduct in performing the duties of, and acting in his capacity as, grievance adjuster to collective bargainer on behalf of the employer." Id., at 804-805, 94 S.Ct., at 2744-45. Thus, to make out a violation of the statute in such a case, it is not enough to show that the union disciplined a supervisor who had some collective-bargaining or grievance-adjustment responsibilities; the discipline itself must relate directly to the supervisor's performance of those duties. See also American Broadcasting Cos. v. Writers Guild, 437 U.S. 411, 429-430, 98 S.Ct. 2423, 2433-34, 57 L.Ed.2d 313. This direct relationship is an appropriate element of a § 8(b)(1)(B) violation in a case involving union discipline of a supervisor because such discipline only indirectly affects the "selection" of management representatives, the primary focus of the statute. However, whenever the union conduct has a direct impact on the employer's selection of a representative, it is not necessary that that conduct bear a direct relationship to the representative's collective-bargaining or grievance-adjustment duties; it is sufficient that the union attempt to coerce or to restrain management in the selection of a representative who will have such duties, even if they will constitute only a small portion of his overall responsibilities.
43
The legislative history of § 8(b)(1)(B) supports a broad reading of the prohibition against union conduct aimed directly at the actual selection of employer representatives. Section 8(b)(1)(B) was intended to protect the basic management prerogative of selecting foremen and more senior executives who exercise supervisory authority over employees and represent the company in its relationship with employees and their collective-bargaining agent. The sparse comments on the provision in the legislative history persuade me that Congress intended the description of "representatives for the purposes of collective bargaining or the adjustment of grievances" to refer to a category of employer representatives whose selection was exclusively a matter of management prerogative.
44
Thus, Senator Taft explained the provision by using the example of an unpopular foreman who may well have had no specific responsibility for either collective bargaining or adjusting grievances. He said:
45
"This unfair labor practice referred to is not perhaps of tremendous importance, but employees cannot say to their employer, 'We do not like Mr. X, we will not meet Mr. X. You have to send us Mr. Y.' That has been done. It would prevent their saying to the employer, 'You have to fire Foreman Jones. We do not like Foreman Jones, and therefore you have to fire him, or we will not go to work.' " 93 Cong.Rec. 3837 (1947).
46
A few days later, in a brief discussion of provisions in the bill intended to deal with "strikes invading the prerogatives of management," Senator Ellender identified § 8(b)(1) as covering the coercion of an employer "either in the selection of his bargaining representative or in the selection of a personnel director or foreman, or other supervisory official." 93 Cong.Rec. 4143 (1947). His description of the provision surely supports a broad reading of the prohibition against strikes invading the prerogatives of management, rather than a narrowly restricted reference to a precisely defined category of representatives principally involved in collective bargaining and grievance adjustment.13
47
Therefore, to sustain its position in this case, it seems to me that the Court must establish that no part of the duties of an employee benefit fund trustee involve collective-bargaining or grievance-adjustment activities. But even if one gives the narrowest literal reading to the term "collective bargaining," it is clear that employee benefit trust agreements generally, and the trust agreement involved in this case in particular, authorize the two groups of representatives to engage in collective-bargaining activity. The statute broadly defines collective bargaining to encompass any conference with respect to "the negotiation of an agreement, or any question arising thereunder." 29 U.S.C. § 158(d).14 Such negotiation is manifestly a part of a trustee's duties.15
48
In addition to the provision delegating to the trustees the power to fix the contribution rate for salvaged coal production, see supra, at 345, the agreement in this case provides that the trustee representing the union and the trustee representing the employers shall select the neutral trustee.16 When the trustee representing the union and the trustee representing the employers select the neutral trustee, they surely are resolving a question arising under the agreement. It is therefore perfectly clear that they are literally engaged in collective bargaining as that term is defined in the Act. Indeed, whenever they confer about various questions that arise in connection with the administration of the trust agreement, they inevitably are engaged in that activity as defined in the statute. The fact that differences between labor and management trustees in the administration of the fund are to be resolved through the neutral umpire procedure established in § 302(c)(5), rather than through strikes or lockouts, does not in any way change the character of the trustees' function.
49
In this case, there is no need to decide when, or indeed if ever, the refusal of one trustee to confer with another might constitute a refusal to bargain in good faith and therefore an unfair labor practice. It may well be true that the fiduciary obligations imposed by the Employee Retirement Income Security Act. 29 U.S.C. § 1001 et seq., or by other provisions of the LMRA, may make a different remedy appropriate for a violation of the trustee's statutory duties. In this case, however, we are merely confronted with the question whether the employer's right to designate its representative to the board of a jointly administered trust fund is a matter for negotiation with the union or is strictly a matter of management prerogative. The language of the statute, its structure, its purpose, and the history of administration of trust funds pursuant to the Act since it was passed, all support the conclusion that this is a matter of management prerogative over which the union has no right to strike.17 In my opinion, the Court of Appeals' judgment should be affirmed. I therefore respectfully dissent.
1
29 U.S.C. § 141 et seq.
2
29 U.S.C. § 158(b)(1)(B).
3
29 U.S.C. § 186(c)(5).
4
The trust agreement sets out the health and retirement benefits provided to employees and their dependents, defines the terms and the responsibilities of the trustees, describes the method of administration of the trust, and provides for periodic audits, reports, and notices. The agreement also fixes the employers' contributions to the trust, requiring a specified number of cents per ton of coal produced, with the one exception that the trustees themselves retain the power to fix the rate for coal salvaged from slurry, sludge, or other refuse.
5
29 U.S.C. § 158(b)(3).
6
On other claims by Amax, the Board found that the union had not bargained in bad faith in violation of § 8(b)(3), but that the union had acted illegally in attempting to coerce Amax to join the multiemployer bargaining unit for the western mines, in failing to notify the Federal Mediation and Conciliation Service of its dispute with Amax before striking, and by insisting to impasse on certain contract proposals that would have violated § 8(e) of the Act, 29 U.S.C. § 158(e). The Court of Appeals affirmed all these rulings, and they are not before this Court.
7
The Board relied on its earlier resolution of this same issue in Sheet Metal Workers' International Assn. and Edward J. Carlough (Central Florida Sheetmetal Contractors Assn., Inc.), 234 N.L.R.B. 1238 (1978).
8
29 U.S.C. § 186(a).
9
Trust funds may pay only "for medical or hospital care, pensions on retirement or death of employees, compensation for injuries or illness resulting from occupational activity or insurance to provide any of the foregoing, or unemployment benefits or life insurance, disability and sickness insurance, or accident insurance." 29 U.S.C. § 186(c)(5)(A).
10
29 U.S.C. § 186(c)(5)(B).
11
29 U.S.C. § 186(c)(5)(C).
12
If the trustees deadlock over a matter of trust administration, the statute further provides that the trustees may select a neutral arbiter, or "in event of their failure to agree within a reasonable length of time, an impartial umpire to decide such dispute shall, on petition of either group, be appointed by the district court of the United States for the district where the trust fund has its principal office . . . ." 29 U.S.C. § 186(c)(5)(B).
13
The use of the word "representatives" in § 302(c)(5)(B) in no way suggests that Congress did not intend to incorporate the equitable principles of fiduciary duty. The requirement that employer and employee be equally represented among the trustees of an employee benefit fund prevents any misuse of those funds by union officers who would otherwise have sole control of vast amounts of money contributed by the employer. See Arroyo v. United States, 359 U.S. 419, 425-426, 79 S.Ct. 864, 868, 3 L.Ed.2d 915. The management-appointed trustee "represents" the employer only in the sense that he ensures that the union-appointed trustee does not abuse his trust with respect to the funds contributed by the employer. Nowhere in the debates over § 302(c)(5) did any Member of either House of Congress suggest that the employer "representative" as a trustee of a benefit fund created under this statute could or should advance the interest of the employer in administering the fund. In fact, some opponents of the provision objected that the requirement of equal management-union representation imposed onerous administrative duties on the employers. E. g., 93 Cong.Rec. 4749 (1947) (Sen. Murray).
14
The legislative history of § 302(c)(5) also bears directly on the actual question underlying the statutory issue in this litigation: whether Congress intended to prohibit union demands for employer participation in established multiemployer trust funds. One of the events that greatly influenced the legislative efforts culminating in the Act was the demand of John L. Lewis, then head of the United Mine Workers, that all mine owners contribute 10 cents per ton of coal produced into a central welfare fund established by the union itself. United States v. Ryan, 350 U.S. 299, 304-305, 76 S.Ct. 400, 404, 100 L.Ed. 335; S.Rep.No.105, 80th Cong., 1st Sess., pt. 1, p. 52 (1947), 1 Leg.Hist. LMRA, at 458. The debates and Reports reveal that despite considerable congressional opposition to Lewis' demands, ibid.; 93 Cong.Rec. 3423, 3516-3517, 3564-3565 (1947) (remarks of Reps. Hartley, Fisher, and Case); id., at 4678, 4746-4748 (Sens. Byrd and Taft), Congress specifically rejected proposals that would have rendered those demands illegal either by providing that union proposals concerning pension welfare benefits were not mandatory subjects of bargaining, or by prohibiting all such funds even indirectly established or managed by a union. See H.R. 3020, 80th Cong. 1st Sess. §§ 2(11), 8(a)(2)(C)(ii) (1947), 1 Leg.Hist. LMRA, at 39-40, 51; H.R.Rep.No.245, 80th Cong., 1st Sess., 14-17 (1947), 2 Leg.Hist. LMRA, at 305-308.
15
A "participant" is "any employee or former employee . . . who is or may become eligible to receive a benefit of any type from an employee benefit plan . . ., or whose beneficiaries may be eligible to receive any such benefit." 29 U.S.C. § 1002(7). A "beneficiary" is "a person designated by a participant, or by the terms of an employee benefit plan, who is or may become entitled to a benefit thereunder." 29 U.S.C. § 1002(8).
16
Although § 408(c)(3) of ERISA permits a trustee of an employee benefit fund to serve as an agent or representative of the union or employer, that provision in no way limits the duty of such a person to follow the law's fiduciary standards while he is performing his responsibilities as trustee.
17
In 1980, Congress amended ERISA to impose new responsibilities upon the trustees of multiemployer trust funds, passing the Multiemployer Pension Plan Amendments Act of 1980, Pub.L. 96-364, 94 Stat. 1209, which reaffirmed that the trustees must act solely in the interest of the trust beneficiaries, see H.R.Rep.No.96-869, pt. 1, p. 67 (1980), U.S.Code Cong. & Admin.News 1980, p. 2918.
18
Neither statutory provision refers to the other, and though the same congressional Committees considered the issues of employee benefit trust funds and multiemployer bargaining, the legislative history nowhere suggests that Congress intended that the restrictions on union activity created by § 8(b)(1)(B) were relevant to the selection of § 302(c)(5) trustees. Indeed, though faced with a United Mine Workers demand that owners contribute a fixed percentage of their coal receipts to a multiemployer trust fund created by the union, Congress rejected several proposals that would have denied the union the power to make such demands. See n. 14, supra.
19
Another concern of § 8(b)(1)(B), of no relevance here, was to prevent a union from striking to force an employer to fire a supervisor who, in the union's view, was too stern in his treatment of employees. 93 Cong.Rec. 3837-3838 (1947) (Sen. Taft).
20
The sole and minor exception under the agreement governing the national trust funds in this litigation is the authority of the trustees to fix the number of cents per ton of salvage coal produced which a mine operator must contribute to the funds. See n. 4, supra.
21
If the administration of § 302(c)(5) trust funds were "collective bargaining" within the meaning of federal labor law, as it would be under the Court of Appeals' view, the NLRB would have to review the discretionary actions of the trustees according to the statutory duty of good-faith bargaining. 29 U.S.C. §§ 158(a)(5), (b)(3), (d). The Board would thereby be thrust "into a new area of regulation which Congress [has] not committed to it," NLRB v. Insurance Agents, 361 U.S. 477, 499, 80 S.Ct. 419, 432, 4 L.Ed.2d 454. Moreover, under the Court of Appeals' view, a trustee would be subject to simultaneous regulation by the Board, the Secretary of Labor, and the courts, and might be torn between conflicting duties imposed by the National Labor Relations Act and ERISA. For example, ERISA requires a trustee to prevent any other trustee from breaching his fiduciary responsibilities to the trust beneficiaries. 29 U.S.C. §§ 1105(a)(3), (b)(1)(A). On the other hand, § 8(b)(1)(B) bars a union representative from interfering with the employer's collective-bargaining agent's performance of his duties in accordance with the employer's instructions. American Broadcasting Cos. v. Writers Guild, 437 U.S. 411, 436, 98 S.Ct. 2423, 2437, 57 L.Ed.2d 313. Therefore, if trust fund administration is collective bargaining, a trustee could be charged with an unfair labor practice by carrying out his duties under ERISA.
22
The view of the Court of Appeals that the union could not seek to compel the employer to join an established employee trust fund conflicts with recent legislation concerning multiemployer pension plans. In this litigation, Amax claimed complete power under § 8(b)(1)(B), unaffected by union economic pressure, to select the sole trustee, or all the trustees, of the trust fund benefiting the Belle Ayr Mine employees. Since, by definition, it is impossible for every employer participating in a multiemployer trust fund to exercise such power, the Court of Appeals' decision upholding Amax's claim would effectively preclude a union from resorting to economic pressure to cause an employer to participate in a multiemployer trust fund. Congress amended ERISA in 1980 to strengthen the funding requirements and enhance the financial stability of multiemployer pension plans. In these amendments, Congress sought to foster "the maintenance and growth of multiemployer pension plans . . . [and] to provide reasonable protection for the interests of the participants and beneficiaries of financially distressed multiemployer pension plans." §§ 3(c)(2) and (c)(3) of the Multiemployer Pension Plan Amendments Act of 1980, Pub.L. 96-364, 94 Stat. 1209-1210. Section 3(a)(4)(A) of the 1980 Act states that "withdrawals of contributing employers from a multiemployer pension . . . adversely [affect] the plan, its participants and beneficiaries, and labor-management relations. . . ." 94 Stat. 1209. The Court of Appeals' decision therefore runs afoul of express congressional policy favoring multiemployer trusts.
1
Section 302(a) of the Labor Management Relations Act, 1947, generally prohibits payments by employers to representatives of their employees. 29 U.S.C. § 186(a). Section 302(c)(5) creates an exception to this general prohibition for payments to certain trust funds established for the sole benefit of employees. 29 U.S.C. § 186(c)(5). The statute contains detailed requirements that trust funds must satisfy to qualify for the exception:
"The provisions of this section shall not be applicable . . . with respect to money or other thing of value paid to a trust fund established by such representative, for the sole and exclusive benefit of the employees of such employer, and their families and dependents (or of such employees, families, and dependents jointly with the employees of other employers making similar payments, and their families and dependents): Provided, That (A) such payments are held in trust for the purpose of paying, either from principal or income or both, for the benefit of employees, their families
and dependents, for medical or hospital care, pensions on retirement or death of employees, compensation for injuries or illness resulting from occupational activity or insurance to provide any of the foregoing, or unemployment benefits or life insurance, disability and sickness insurance, or accident insurance; (B) the detailed basis on which such payments are to be made is specified in a written agreement with the employer, and employees and employers are equally represented in the administration of such fund, together with such neutral persons as the representatives of the employers and the representatives of the employees may agree upon and in the event the employer and employee groups deadlock on the administration of such fund and there are no neutral persons empowered to break such deadlock, such agreement provides that the two groups shall agree on an impartial umpire to decide such dispute, or in event of their failure to agree within a reasonable length of time, an impartial umpire to decide such dispute shall, on petition of either group, be appointed by the District Court of the United States for the district where the trust fund has its principal office, and shall also contain provisions for an annual audit of the trust fund, a statement of the results of which shall be available for inspection by interested persons at the principal office of the trust fund and at such other places as may be designated in such written agreement; and (C) such payments as are intended to be used for the purpose of providing pensions or annuities for employees are made to a separate trust which provides that the funds held therein cannot be used for any purpose other than paying such pensions or annuities . . . ." 29 U.S.C. § 186(c)(5).
2
The Court states that "close examination of the latter provision [§ 8(b)(1)(B)] makes it even clearer that it does not limit the freedom of a union to try to induce an employer to select a particular § 302(c)(5) trustee." Ante, at 334.
3
In addition to containing numerous specific references to John L. Lewis and the United Mine Workers central fund, see, e. g., S.Rep.No. 105, 80th Cong., 1st Sess., 52 (1947), reprinted in 1 Legislative History of the Labor Management Relations Act, 1947, 458 (Leg.Hist. LMRA); 93 Cong.Rec. 3564-3569, A1910 (1947); id., at 4678, 4746-4748, 5015; the legislative history is replete with general expressions of concern about union mismanagement and misuse of employee benefit funds. See, e. g., S.Rep.No. 105, 80th Cong., 1st Sess., 52 (1947), 1 Leg.Hist. LMRA 458; 93 Cong.Rec. 3569 (1947); id., at 4678, 4746-4747, 4752-4753 (1947). The equal representation requirement was a direct response to these concerns. As Senator Ball explained:
"In other words, when the union has complete control of this fund, when there is no detailed provision in the agreement creating the fund respecting the benefits which are to go to employees, the union and its leadership will always come first in the administration of the fund, and the benefits to which the employees supposedly are entitled will come second." Id., at 4753.
See also S.Rep.No. 105, 80th Cong., 1st Sess., 52 (1947), 1 Leg.Hist. LMRA 458; 93 Cong.Rec. 3564 (1947); id., at 4678, 4746.
4
Indeed, opponents of the bill that became § 302 argued that many employers wanted absolutely nothing to do with the administration of employee benefit funds. See, e. g., id., at 4749, 4751-4752.
5
However, the fact that Congress used the term "representative" rather than "trustee" is significant in light of the Court's reliance on the principle that "[w]here Congress uses terms that have accumulated settled meaning under either equity or the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms." Ante, at 329.
6
In Associated Contractors, Inc. v. Laborers International Union, 559 F.2d 222 (C.A.3 1977), the decision on which the Court of Appeals relied in this case, the court recognized that the inevitable conflict between the views of labor and the views of management with respect to the administration of employee benefit funds was an essential feature of the statutory protection designed by Congress:
"The starting point for analysis must be the candid recognition that the relationship between employer and employee trustees of an employee benefit trust fund is quasi-adversarial in nature. Naturally, the trustees of such a trust fund function as fiduciaries for the funds' beneficiaries but they also serve as representatives of the parties who appoint them. Insofar as it is consistent with their fiduciary obligations, employer trustees are expected to advance the interests of the employer while employee trustees are expected to further the concerns of the union in the ongoing collective bargaining process between them. . . . The trustees' efforts to improve the position of the parties they represent are completely legitimate—indeed, they are essential to the operation of section 302(c)(5). Congress envisioned the conflict of views of employer and employee as a distilling process which would provide safeguards against trust fund corruption." Id., at 227-228 (citations omitted).
See also Ader v. Hughes, 570 F.2d 303, 308 (CA10 1978); Lamb v. Carey, 162 U.S.App.D.C. 247, 251, 498 F.2d 789, 793 (1974), cert. denied sub nom. Carey v. Davis, 419 U.S. 869, 95 S.Ct. 128, 42 L.Ed.2d 108; Toensing v. Brown, 374 F.Supp. 191, 195 (N.D.Cal.1974), aff'd, 528 F.2d 69 (CA9 1975).
7
One commentator described the statutory scheme, as follows:
"The governing trust agreement separately entered into by the parties to the collective bargaining agreement may specify general categories of benefits, but it normally delegates to the trustees broad discretion to determine specific benefit levels and eligibility requirements, to modify the benefit plan, and to administer the plan.
"Exercise of this discretionary power may involve important questions of policy or judgment on which union and employer trustees may well differ. This potential divergence of interests was the underlying reason for the statutory requirement of equal representation. Employer representatives were intended to act as a check on the untrammeled discretion of the union. The possibility of adverse interests leading to dispute is recognized by the statutory provision for breaking deadlocks through appointment of an impartial umpire." Goetz, Developing Federal Labor Law of Welfare and Pension Plans, 55 Cornell L.Rev. 911, 922-923 (1970) (footnote omitted).
See also Goetz, Employee Benefit Trusts Under Section 302 of Labor Management Relations Act, 59 Nw.U.L.Rev. 719, 748 (1965).
8
The trust agreement in this record suggests the contrary:
"The Trustees shall take such action as they deem appropriate to collect any such delinquencies, and shall advise the International Union and the appropriate Districts and Locals of the Union, on at least a monthly basis, of such delinquencies, as long as such delinquencies continue." App. 98p.
9
As noted above, the word "trustee" does not appear in § 302(c) of the LMRA. That section does require that "employees and employers are equally represented in the administration of such fund, together with such neutral persons as the representatives of the employers and the representatives of the employees may agree upon and in the event the employer and employee groups deadlock on the administration of such fund and there are no neutral persons empowered to break such deadlock, such agreement provides that the two groups shall agree on an impartial umpire to decide such dispute. . . ." 29 U.S.C. § 186(c)(5)(B). It seems to me that this statutory language is quite inconsistent with the Court's view that the trustees are essentially fungible once they have been appointed.
10
Because the equal representation requirement primarily benefits the fund's beneficiaries rather than the employer, it is unlikely that an employer would be willing to risk a strike or other economic pressure on the part of the union in order to preserve its right to choose its own representatives to the employee benefit fund. As the legislative history suggests, see n. 4, supra, many employers probably view the equal representation requirement as an unwelcome burden at best, rather than as an essential right worth defending at the risk of extended labor strife. Cf. Cox, Some Aspects of the Labor Management Relations Act, 1947, 61 Harv.L.Rev. 274, 290, 314 (1948) ("The provisions dealing with employer contributions to union trust funds set the employer up as watchdog, although it has no interest in the fund").
11
See also Associated Contractors, Inc., 559 F.2d, at 227; Quad City Builders Assn. v. Tri City Bricklayers Union, 431 F.2d 999, 1003 (CA8 1970).
12
Section 8(b) of the National Labor Relations Act provides, in pertinent part:
"It shall be an unfair labor practice for a labor organization or its agents—
"(1) to restrain or coerce . . . (B) an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances. . . ." 29 U.S.C. § 158(b)(1)(B).
13
Senator Ellender's full statement on this point reads as follows:
"I shall now deal briefly with strikes invading the prerogatives of management.
"The bill prevents a union from dictating to an employer on the question of bargaining with union representatives through an employer association. The bill, in subsection 8(b)(1) on page 14, makes it an unfair labor practice for a union to attempt to coerce an employer either in the selection of his bargaining representative or in the selection of a personnel director or foreman, or other supervisory official. Senators who heard me discuss the issue early in the afternoon will recall that quite a few unions forced employers to change foremen. They have been taking it upon themselves to say that management should not appoint any representative who is too strict with the membership of the union. This amendment seeks to prescribe a remedy in order to prevent such interferences." 93 Cong.Rec. 4143 (1947).
14
In pertinent part, § 8(d) of the National Labor Relations Act reads:
"For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession . . . ." 29 U.S.C. § 158(d).
15
The wall between collective-bargaining activities and the duties of welfare fund trustees on which the Court's opinion is based simply does not exist. As one commentator has observed:
"[T]he subjects about which the trustees confer are within the scope of mandatory collective bargaining under the Act.
* * * * *
"Despite the unusual setting, the deliberations of trustees of these funds may be looked upon as an extension of the collective bargaining process within contractual and statutory limits." Goetz, supra n. 7, 55 Cornell L.Rev., at 922, 923.
See also Toensing v. Brown, 374 F.Supp., at 195-196.
16
The agreement provides:
"Section (e) Responsibilities and Duties of Trustees
"(1) Each Trust shall be administered by a Board of three Trustees, one of whom shall be appointed by the Employers; one of whom shall be appointed by the Union; and one of whom shall be a neutral party, selected by the other two." App. 98n (emphasis added).
17
This conclusion is in no way inconsistent with the Multiemployer Pension Plan Amendments Act of 1980 (MPPAA), 94 Stat. 1209, the Court's statement to the contrary notwithstanding. See ante, at 338-339, n. 22. While Congress sought, in that Act, to enhance the stability of multiemployer plans, it did not address the question presented in this case, nor did it prohibit the withdrawal of employers from such plans. Rather, Congress provided that withdrawing employers must fund a proportional share of a plan's unfunded vested benefits. MPPAA § 104, 94 Stat. 1217. Thus, the general expressions of concern in the legislative history of this Act must be read in light of the action Congress actually took to allay those concerns.
| 67
|
453 U.S. 280
101 S.Ct. 2766
69 L.Ed.2d 640
Alexander M. HAIG, Jr., Secretary of State of the United States, Petitioner,v.Philip AGEE.
No. 80-83.
Argued Jan. 24, 1981.
Decided June 29, 1981.
Syllabus
Respondent, an American citizen and a former employee of the Central Intelligence Agency, announced a campaign "to expose CIA officers and agents and to take the measures necessary to drive them out of the countries where they are operating." He then engaged in activities abroad that have resulted in identifications of alleged undercover CIA agents and intelligence sources in foreign countries. Because of these activities the Secretary of State revoked respondent's passport, explaining that the revocation was based on a regulation authorizing revocation of a passport where the Secretary determines that an American citizen's activities abroad "are causing or likely to cause serious damage to the national security or the foreign policy of the United States." The notice also advised respondent of his right to an administrative hearing. Respondent filed suit against the Secretary in Federal District Court, seeking declaratory and injunctive relief and alleging that the regulation invoked by the Secretary has not been authorized by Congress and is impermissibly overbroad; that the passport revocation violated respondent's freedom to travel and his First Amendment right to criticize Government policies; and that the failure to accord him a prerevocation hearing violated his Fifth Amendment right to procedural due process. Granting summary judgment for respondent and ordering the Secretary to restore respondent's passport, the District Court held that the regulation exceeded the Secretary's power under the Passport Act of 1926, which authorizes the Secretary to "grant and issue passports, and cause passports to be granted, issued, and verified in foreign countries by diplomatic representatives of the United States . . . under such rules as the President shall designate and prescribe. . . ." The Court of Appeals affirmed, holding that the Secretary was required to show that Congress has authorized the regulation either by an express delegation or by implied approval of a "substantial and consistent" administrative practice, and that no such authority had been shown.
Held: The 1926 Act authorizes the revocation of respondent's passport pursuant to the policy announced by the challenged regulation, such policy being "sufficiently substantial and consistent" to compel the conclusion that Congress has approved it; and the regulation is constitutional as applied. Pp. 289-310.
(a) Although the Act does not in express terms authorize the Secretary to revoke a passport or deny a passport application, neither does it expressly limit those powers. It is beyond dispute that he has the power to deny a passport for reasons not specified in the statutes, and, as respondent concedes, if the Secretary may deny a passport application for a certain reason, he may revoke a passport on the same ground. Pp. 289-291.
(b) In light of the broad rulemaking authority granted in the Act, the consistent administrative construction of it must be followed by the courts, absent compelling indications that such construction is wrong. This is especially so in light of the fact that the statute deals with foreign policy and national security, where congressional silence is not to be equated with disapproval. Pp. 291-292.
(c) Absent evidence of any legislative intent to repudiate the consistent administrative construction of the prior and similar 1856 Passport Act as preserving the nonstatutory authority of the President and Secretary to withhold passports on national security and foreign policy grounds, it must be concluded that Congress in enacting the 1926 Act adopted such construction. Moreover, the Executive has consistently construed the 1926 Act to work no change in prior practice. Pp. 292-300.
(d) A 1978 statute making it unlawful to travel abroad without a passport even in peacetime and a 1978 amendment to the 1926 Act providing that "[u]nless authorized by law," in the absence of war armed hostilities, or imminent danger to travelers, a passport may not be geographically restricted, are weighty evidence of congressional approval of the Secretary's interpretation of his authority to revoke passports, particularly as set forth in the challenged regulation. Pp. 300-301.
(e) An administrative policy or practice may be consistent even though the occasions for invoking it are limited. Although a pattern of actual enforcement is one indicator of Executive policy, it suffices that the Executive has openly asserted the power at issue. Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204, distinguished. Pp. 301-303.
(f) The protection accorded belief standing alone is very different from the protection accorded conduct. Here, beliefs and speech are only part of respondent's campaign, which presents a serious danger to American officials abroad and to the national security. Pp. 304-306.
(g) In light of the express language in the challenged regulation, which permits revocation of a passport only in cases involving likelihood of "serious damage" to national security or foreign policy, respondent's constitutional claims are without merit. The right to hold a passport is subordinate to national security and foreign policy considerations, and is subject to reasonable governmental regulation. Assuming arguendo that First Amendment protections reach beyond our national boundaries, respondent's First Amendment claim is without foundation. See Near v. Minnesota ex rel. Olson, 283 U.S. 697, 716, 51 S.Ct. 625, 631, 75 L.Ed. 1357. To the extent the revocation of respondent's passport operates to inhibit him, it is an inhibition of action, rather than of speech. And on the record of this case, the Government is not required to hold a prerevocation hearing, since where there is a substantial likelihood of "serious damage" to national security or foreign policy as the result of a passport holder's activities abroad, the Government may take action to ensure that the holder may not exploit the United States' sponsorship of his travels. The Constitution's due process guarantees call for no more than what was accorded here: a statement of reasons and an opportunity for a prompt postrevocation hearing. Pp. 306-310.
203 U.S.App.D.C. 46, 629 F.2d 80, reversed and remanded.
Sol. Gen. Wade H. McCree, Jr., Washington, D.C., for petitioner.
Melvin L. Wulf, New York City, for respondent.
Chief Justice BURGER delivered the opinion of the Court.
1
The question presented is whether the President, acting through the Secretary of State, has authority to revoke a passport on the ground that the holder's activities in foreign countries are causing or are likely to cause serious damage to the national security or foreign policy of the United States.
2
* A.
3
Philip Agee, an American citizen, currently resides in West Germany.1 From 1957 to 1968, he was employed by the Central Intelligence Agency. He held key positions in the division of the Agency that is responsible for covert intelligence gathering in foreign countries. In the course of his duties at the Agency, Agee received training in clandestine operations, including the methods used to protect the identities of intelligence employees and sources of the United States overseas. He served in undercover assignments abroad and came to know many Government employees and other persons supplying information to the United States. The relationships of many of these people to our Government are highly confidential; many are still engaged in intelligence gathering.
4
In 1974, Agee called a press conference in London to announce his "campaign to fight the United States CIA wherever it is operating. He declared his intent "to expose CIA officers and agents and to take the measures necessary to drive them out of the countries where they are operating."2 Since 1974, Agee has, by his own assertion, devoted consistent effort to that program, and he has traveled extensively in other countries in order to carry it out. To identify CIA personnel in a particular country, Agee goes to the target country and consults sources in local diplomatic circles whom he knows from his prior service in the United States Government. He recruits collaborators and trains them in clandestine techniques designed to expose the "cover" of CIA employees and sources. Agee and his collaborators have repeatedly and publicly identified individuals and organizations located in foreign countries as undercover CIA agents, employees, or sources.3 The record reveals that the identifications divulge classified information,4 violate Agee's express contract not to make any public statements about Agency matters without prior clearance by the Agency,5 have prejudiced the ability of the United States to obtain intelligence,6 and have been followed by episodes of violence against the persons and organizations identified.7
5
In December 1979, the Secretary of State revoked Agee's passport and delivered an explanatory notice to Agee in West Germany. The notice states in part:
6
"The Department's action is predicated upon a determination made by the Secretary under the provisions of [22 CFR] Section 51.70(b)(4) that your activities abroad are causing or are likely to cause serious damage to the national security or the foreign policy of the United States. The reasons for the Secretary's determination are, in summary, as follows: Since the early 1970's it has been your stated intention to conduct a continuous campaign to disrupt the intelligence operations of the United States. In carrying out that campaign you have travelled in various countries (including, among others, Mexico, the United Kingdom, Denmark, Jamaica, Cuba, and Germany), and your activities in those countries have caused serious damage to the national security and foreign policy of the United States. Your stated intention to continue such activities threatens additional damage of the same kind."8
7
The notice also advised Agee of his right to an administrative hearing9 and offered to hold such a hearing in West Germany on 5 days' notice.
8
Agee at once filed suit against the Secretary.10 He alleged that the regulation invoked by the Secretary, 22 CFR § 51.70(b)(4) (1980), has not been authorized by Congress and is invalid; that the regulation is impermissibly overbroad; that the revocation prior to a hearing violated his Fifth Amendment right to procedural due process; and that the revocation violated a Fifth Amendment liberty interest in a right to travel and a First Amendment right to criticize Government policies. He sought declaratory and injunctive relief, and he moved for summary judgment on the question of the authority to promulgate the regulation and on the constitutional claims. For purposes of that motion, Agee conceded the Secretary's factual averments11 and his claim that Agee's activities were causing or were likely to cause serious damage to the national security or foreign policy of the United States.12 The District Court held that the regulation exceeded the statutory powers of the Secretary under the Passport Act of 1926, 22 U.S.C. § 211a,13 granted summary judgment for Agee, and ordered the Secretary to restore his passport. Agee v. Vance, 483 F.Supp. 729 (DC 1980).
B
9
A divided panel of the Court of Appeals affirmed. Agee v. Muskie, 203 U.S.App.D.C. 46, 629 F.2d 80 (1980). It held that the Secretary was required to show that Congress had authorized the regulation either by an express delegation or by implied approval of a "substantial and consistent" administrative practice, Zemel v. Rusk, 381 U.S. 1, 12, 85 S.Ct. 1271, 1278, 14 L.Ed.2d 179 (1965). The court found no express statutory authority for the revocation. It perceived only one other case of actual passport revocation under the regulation since it was promulgated and only five other instances prior to that in which passports were actually denied "even arguably for national security or foreign policy reasons." 203 U.S.App.D.C., at 51-52, 629 F.2d, at 85-86. The Court of Appeals took note of the Secretary's reliance on "a series of statutes, regulations, proclamations, orders and advisory opinions dating back to 1856," but declined to consider those authorities, reasoning that "the criterion for establishing congressional assent by inaction is the actual imposition of sanctions and not the mere assertion of power." Id., at 52-53, 629 F.2d, at 86-87. The Court of Appeals held that it was not sufficient that "Agee's conduct may be considered by some to border on treason," since "[w]e are bound by the law as we find it." Id., at 53, 629 F.2d, at 87. The court also regarded it as material that most of the Secretary's authorities dealt with powers of the Executive Branch "during time of war or national emergency"14 or with respect to persons "engaged in criminal conduct."15 Id., at 52, 629 F.2d, at 86.
10
We granted certiorari sub nom. Muskie v. Agee, 449 U.S. 818, 101 S.Ct. 69, 66 L.Ed.2d 20 (1980), and stayed the judgment of the Court of Appeals until our disposition of the case on the grant of certiorari.16
II
11
The principal question before us is whether the statute authorizes the action of the Secretary pursuant to the policy announced by the challenged regulation.17
12
* Although the historical background that we develop later is important, we begin with the language of the statute. See e. g., Universities Research Assn. v. Coutu, 450 U.S. 754, 771, 101 S.Ct. 1451, 1461, 67 L.Ed.2d 662 (1981); Zemel, supra, at 7-8, 85 S.Ct., at 1275-1276. The Passport Act of 1926 provides in pertinent part:
13
"The Secretary of State may grant and issue passports, and cause passports to be granted, issued, and verified in foreign countries by diplomatic representatives of the United States . . . under such rules as the President shall designate and prescribe for and on behalf of the United States, and no other person shall grant, issue, or verify such passports." 22 U.S.C. § 211a (1976 ed., Supp. IV).
14
This language is unchanged since its original enactment in 1926.18
15
The Passport Act does not in so many words confer upon the Secretary a power to revoke a passport. Nor, for that matter, does it expressly authorize denials of passport applications.19 Neither, however, does any statute expressly limit those powers. It is beyond dispute that the Secretary has the power to deny a passport for reasons not specified in the statutes. For example, in Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204 (1958), the Court recognized congressional acquiescence in Executive policies of refusing passports to applicants "participating in illegal conduct, trying to escape the toils of the law, promoting passport frauds, or otherwise engaging in conduct which would violate the laws of the United States." Id., at 127, 78 S.Ct., at 1119. In Zemel, the Court held that "the weightiest considerations of national security" authorized the Secretary to restrict travel to Cuba at the time of the Cuban missile crisis. 381 U.S., at 16, 85 S.Ct., at 1280. Agee concedes that if the Secretary may deny a passport application for a certain reason, he may revoke a passport on the same ground.20
2
16
Particularly in light of the "broad rule-making authority granted in the [1926] Act," Zemel, 381 U.S., at 12, 85 S.Ct., at 1278, a consistent administrative construction of that statute must be followed by the courts " 'unless there are compelling indications that it is wrong.' " E. I. du Pont de Nemours & Co. v. Collins, 432 U.S. 46, 55, 97 S.Ct. 2229, 2234, 53 L.Ed.2d 100 (1977), quoting Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 1802, 23 L.Ed.2d 371 (1969); see Zemel, supra, at 11, 85 S.Ct., at 1278. This is especially so in the areas of foreign policy and national security, where congressional silence is not to be equated with congressional disapproval.21 In United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 57 S.Ct. 216, 81 L.Ed. 255 (1936), the volatile nature of problems confronting the Executive in foreign policy and national defense was underscored:
17
"In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation.. . . As Marshall said in his great argument of March 7, 1800, in the House of Representatives, 'The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.' " Id., at 319, 57 S.Ct., at 220.
18
Applying these considerations to statutory construction, the Zemel Court observed:
19
"[B]ecause of the changeable and explosive nature of contemporary international relations, and the fact that the Executive is immediately privy to information which cannot be swiftly presented to, evaluated by, and acted upon by the legislature, Congress—in giving the Executive authority over matters of foreign affairs—must of necessity paint with a brush broader than that it customarily wields in domestic areas." 381 U.S., at 17, 85 S.Ct., at 1281 (emphasis supplied).
20
Matters intimately related to foreign policy and national security are rarely proper subjects for judicial intervention. In Harisiades v. Shaughnessy, 342 U.S. 580, 72 S.Ct. 512, 96 L.Ed. 586 (1952), the Court observed that matters relating "to the conduct of foreign relations . . . are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference." Id., at 589, 72 S.Ct., at 519; accord, Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111, 68 S.Ct. 431, 436, 92 L.Ed. 568 (1948).
B
21
* A passport is, in a sense, a letter of introduction in which the issuing sovereign vouches for the bearer and requests other sovereigns to aid the bearer. 3 G. Hackworth, Digest of International Law § 268, p. 499 (1942). Very early, the Court observed:
22
"[A passport] is a document, which, from its nature and object, is addressed to foreign powers; purporting only to be a request, that the bearer of it may pass safely and freely; and is to be considered rather in the character of a political document, by which the bearer is recognised, in foreign countries, as an American citizen; and which, by usage and the law of nations, is received as evidence of the fact." Urtetiqui v. D'Arcy, 9 Pet. 692, 698, 9 L.Ed. 276 (1835).
23
With the enactment of travel control legislation making a passport generally a requirement for travel abroad,22 a passport took on certain added characteristics. Most important for present purposes, the only means by which an American can lawfully leave the country or return to it—absent a Presidentially granted exception—is with a passport. See 8 U.S.C. § 1185(b) (1976 ed., Supp. IV). As a travel control document, a passport is both proof of identity and proof of allegiance to the United States. Even under a travel control statute, however, a passport remains in a sense a document by which the Government vouches for the bearer and for his conduct.
24
The history of passport controls since the earliest days of the Republic shows congressional recognition of Executive authority to withhold passports on the basis of substantial reasons of national security and foreign policy. Prior to 1856, when there was no statute on the subject, the common perception was that the issuance of a passport was committed to the sole discretion of the Executive and that the Executive would exercise this power in the interests of the national security and foreign policy of the United States.23 This derived from the generally accepted view that foreign policy was the province and responsibility of the Executive.24 From the outset, Congress endorsed not only the underlying premise of Executive authority in the areas of foreign policy and national security, but also its specific application to the subject of passports. Early Congresses enacted statutes expressly recognizing the Executive authority with respect to passports.25
25
The first Passport Act, adopted in 1856, provided that the Secretary of State "shall be authorized to grant and issue passports . . . under such rules as the President shall designate and prescribe for and on behalf of the United States . . . ." § 23, 11 Stat. 60.26 This broad and permissive language worked no change in the power of the Executive to issue passports; nor was it intended to do so. The Act was passed to centralize passport authority in the Federal Government27 and specifically in the Secretary of State.28 In all other respects, the 1856 Act
26
"merely confirmed an authority already possessed and exercised by the Secretary of State. This authority was ancillary to his broader authority to protect American citizens in foreign countries and was necessarily incident to his general authority to conduct the foreign affairs of the United States under the Chief Executive." Senate Committee on Government Operations, Reorganization of the Passport Functions of the Department of State, 86th Cong., 2d Sess., 13 (Comm. Print 1960).
27
The President and the Secretary of State consistently construed the 1856 Act to preserve their authority to withhold passports on national security and foreign policy grounds. Thus, as an emergency measure in 1861, the Secretary issued orders prohibiting persons from going abroad or entering the country without passports; denying passports to citizens who were subject to military service unless they were bonded; and absolutely denying passports to persons "on errands hostile and injurious to the peace of the country and dangerous to the Union." 3 J. Moore, A Digest of International Law 920 (1906); U. S. Dept. of State, The American Passport 49-54 (1898).29 An 1869 opinion of Attorney General Hoar held that the granting of a passport was not "obligatory in any case." 13 Op.Atty.Gen. 89, 92. This was elaborated in 1901 in an opinion of Attorney General Knox, in which he stated:
28
"Substantial reasons exist for the use by Congress of the word 'may' in connection with authority to issue passports. Circumstances are conceivable which would make it most inexpedient for the public interests for this country to grant a passport to a citizen of the United States." 23 Op.Atty.Gen. 509, 511.
29
In 1903, President Theodore Roosevelt promulgated a rule providing that "[t]he Secretary of State has the right in his discretion to refuse to issue a passport, and will exercise this right towards anyone who, he has reason to believe, desires a passport to further an unlawful or improper purpose."30 Subsequent Executive Orders issued between 1907 and 1917 cast no doubt on this position.31 This policy was enforced in peacetime years to deny passports to citizens whose conduct abroad was "likely to embarrass the United States"32 or who were "disturbing, or endeavoring to disturb, the relations of this country with the representatives of foreign countries."33
30
By enactment of the first travel control statute in 1918,34 Congress made clear its expectation that the Executive would curtail or prevent international travel by american citizens if it was contrary to the national security. The legislative history reveals that the principal reason for the 1918 statute was fear that "renegade Americans" would travel abroad and engage in "transference of important military information" to persons not entitled to it.35 The 1918 statute left the power to make exceptions exclusively in the hands of the Executive, without articulating specific standards. Unless the Secretary had power to apply national security criteria in passport decisions, the purpose of the Travel Control Act would plainly have been frustrated.
31
Against this background, and while the 1918 provisions were still in effect, Congress enacted the Passport Act of 1926. The legislative history of the statute is sparse. However, Congress used language which is identical in pertinent part to that in the 1856 statute (supra, at 294), as amended,36 and the legislative history clearly shows congressional awareness of the Executive policy.37 There is no evidence of any intent to repudiate the longstanding administrative construction.38 Absent such evidence, we conclude that Congress, in 1926, adopted the longstanding administrative construction of the 1856 statute. See Lorillard v. Pons, 434 U.S. 575, 580-581, 98 S.Ct. 866, 869-870, 55 L.Ed.2d 40 (1978).
32
The Executive construed the 1926 Act to work no change in prior practice and specifically interpreted it to authorize denial of a passport on grounds of national security or foreign policy. Indeed, by an unbroken line of Executive Orders,39 regulations,40 instructions to consular officials,41 and notices to passport holders,42 the President and the Department of State left no doubt that likelihood of damage to national security or foreign policy of the United States was the single most important criterion in passport decisions. The regulations are instructive. The 1952 version authorized denial of passports to citizens engaged in activities which would violate laws designed to protect the security of the United States "[i]n order to promote the national interest by assuring that the conduct of foreign relations shall be free from unlawful interference." 17 Fed.Reg. 8013 (1952). The 1956 amendment to this regulation provided that a passport should be denied to any person whose
33
"activities abroad would: (a) Violate the laws of the United States; (b) be prejudicial to the orderly conduct of foreign relations; or (c) otherwise be prejudicial to the interests of the United States." 22 CFR § 51.136 (1958).
34
This regulation remained in effect continuously until 1966.
35
This history of administrative construction was repeatedly communicated to Congress, not only by routine promulgation of Executive Orders and regulations, but also by specific presentations, including 1957 and 1966 reports by the Department of State explaining the 1956 regulation43 and a 1960 Senate Staff Report which concluded that "the authority to issue or withhold passports has, by precedent and law, been vested in the Secretary of State as a part of his responsibility to protect American citizens traveling abroad, and what he considered to be the best interests of the Nation."44
36
In 1966, the Secretary of State45 promulgated the regulations at issue in this case. 22 CFR §§ 51.70(b)(4), 51.71(a) (1980). Closely paralleling the 1956 regulation, these provisions authorize revocation of a passport where "[t]he Secretary determines that the national's activities abroad are causing or are likely to cause serious damage to the national security or the foreign policy of the United States."46
2
37
Zemel recognized that congressional acquiescence may sometimes be found from nothing more than silence in the face of an administrative policy. 381 U.S., at 11, 85 S.Ct., at 1278; See Udall v. Tallman, 380 U.S. 1, 16-18, 85 S.Ct. 792, 801-802, 13 L.Ed.2d 616 (1965); Norwegian Nitrogen Co. v. United States, 288 U.S. 294, 313, 53 S.Ct. 350, 357, 77 L.Ed. 796 (1933); Costanzo v. Tillinghast, 287 U.S. 341, 345, 53 S.Ct. 152, 154, 77 L.Ed. 350 (1932). Here, however, the inference of congressional approval "is supported by more than mere congressional inaction." Zemel, 381 U.S., at 11-12, 85 S.Ct., at 1278-1279. Twelve years after the promulgation of the regulations at issue and 22 years after promulgation of the similar 1956 regulation, Congress enacted the statute making it unlawful to travel aboard without a passport even in peacetime. 8 U.S.C. § 1185(b) (1976 ed., Supp. IV).47 Simultaneously, Congress amended the Passport Act of 1926 to provide that "[u]nless authorized by law," in the absence of war, armed hostilities, or imminent danger to travelers, a passport may not be geographically restricted.48 Title 8 U.S.C. § 1185(b) (1976 ed., Supp. IV) must be read in pari materia with the Passport Act. Zemel, supra, at 11-12, 85 S.Ct., at 1278-1279; see 2A C. Sands, Sutherland on Statutory Construction § 51.03, p. 299 (4th ed. 1973); cf. Erlenbaugh v. United States, 409 U.S. 239, 243-244, 93 S.Ct. 477, 480, 34 L.Ed.2d 446 (1972).49
38
The 1978 amendments are weighty evidence of congressional approval of the Secretary's interpretation, particularly that in the 1966 regulations. Despite the longstanding and officially promulgated view that the Executive had the power to withhold passports for reasons of national security and foreign policy, Congress in 1978, "though it once again enacted legislation relating to passports, left completely untouched the broad rule-making authority granted in the earlier Act." Zemel, supra, at 12, 85 S.Ct., at 1278; accord, NLRB v. Bell Aerospace Co., 416 U.S. 267, 274-275, 94 S.Ct. 1757, 1761-62, 40 L.Ed.2d 134 (1974).50
3
39
Agee argues that the only way the Executive can establish implicit congressional approval is by proof of longstanding and consistent enforcement of the claimed power: that is, by showing that many passports were revoked on national security and foreign policy grounds. For this proposition, he relies on Kent, 357 U.S., at 127-128, 78 S.Ct., at 1118-1119.51
40
A necessary premise for Agee's contention is that there were frequent occasions for revocation and that the claimed Executive power was exercised in only a few of those cases. However, if there were no occasions—or few—to call the Secretary's authority into play, the absence of frequent instances of enforcement is wholly irrelevant. The exercise of a power emerges only in relation to a factual situation, and the continued validity of the power is not diluted simply because there is no need to use it.
41
The history is clear that there have been few situations involving substantial likelihood of serious damage to the national security or foreign policy of the United States as a result of a passport holder's activities abroad, and that in the cases which have arisen, the Secretary has consistently exercised his power to withhold passports. Perhaps the most notable example of enforcement of the administrative policy, which surely could not have escaped the attention of Congress, was the 1948 denial of a passport to a Member of Congress who sought to go abroad to support a movement in Greece to overthrow the existing government.52 Another example was the 1954 revocation of a passport held by a man who was supplying arms to groups abroad whose interests were contrary to positions taken by the United States.53 In 1970, the Secretary revoked passports of two persons who sought to travel to the site of an international airplane hijacking.54 See also Note, 61 Yale L.J. 170, 174-176 (1952).
42
The Secretary has construed and applied his regulations consistently, and it would be anomalous to fault the Government because there were so few occasions to exercise the announced policy and practice. Although a pattern of actual enforcement is one indicator of Executive policy, it suffices that the Executive has "openly asserted" the power at issue. Zemel, 381 U.S., at 9, 85 S.Ct., at 1277; see id., at 10, 85 S.Ct., at 1277.
43
Kent is not to the contrary. There, it was shown that the claimed governmental policy had not been enforced consistently. The Court stressed that "as respects Communists these are scattered rulings and not consistently of one pattern." 357 U.S., at 128, 78 S.Ct., at 1119. In other words, the Executive had allowed passports to some Communists, but sought to deny one to Kent. The Court had serious doubts as to whether there was in reality any definite policy in which Congress could have acquiesced. Here, by contrast, there is no basis for a claim that the Executive has failed to enforce the policy against others engaged in conduct likely to cause serious damage to our national security or foreign policy. It would turn Kent on its head to say that simply because we have had only a few situations involving conduct such as that in this record, the Executive lacks the authority to deal with the problem when it is encountered.55
44
Agee also contends that the statements of Executive policy are entitled to diminished weight because many of them concern the powers of the Executive in wartime. However, the statute provides no support for this argument. History eloquently attests that grave problems of national security and foreign policy are by no means limited to times of formally declared war.56
4
45
Relying on the statement of the Court in Kent that "illegal conduct" and problems of allegiance were, "so far as relevant here, . . . the only [grounds] which it could fairly be argued were adopted by Congress in light of prior administrative practice," id., at 127-128, 78 S.Ct., at 1118-1119, Agee argues that this enumeration was exclusive and is controlling here. This is not correct.
46
The Kent Court had no occasion to consider whether the Executive had the power to revoke the passport of an individual whose conduct is damaging the national security and foreign policy of the United States. Kent involved denials of passports solely on the basis of political beliefs entitled to First Amendment protection. See Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964). Although finding it unnecessary to reach the merits of that constitutional problem, the Kent Court emphasized the fact that "[w]e deal with beliefs, with associations, with ideological matters." 357 U.S., at 130, 78 S.Ct., at 1120 (emphasis supplied). In particular, the Court noted that the applicants were
47
"being denied their freedom of movement solely because of their refusal to be subjected to inquiry into their beliefs and associations. They do not seek to escape the law nor to violate it. They may or may not be Communists. But assuming they are, the only law which Congress has passed expressly curtailing the movement of Communists across our borders has not yet become effective. It would therefore be strange to infer that pending the effectiveness of that law, the Secretary has been silently granted by Congress the larger, the more pervasive power to curtail in his discretion the free movement of citizens in order to satisfy himself about their beliefs or associations." Ibid. (footnote omitted).
48
The protection accorded beliefs standing alone is very different from the protection accorded conduct. Thus, in Aptheker v. Secretary of State, supra, the Court held that a statute which, like the policy at issue in Kent, denied passports to Communists solely on the basis of political beliefs unconstitutionally "establishes an irrebuttable presumption that individuals who are members of the specified organizations will, if given passports, engage in activities inimical to the security of the United States." 378 U.S., at 511, 84 S.Ct., at 1666. The Court recognized that the legitimacy of the objective of safeguarding our national security is "obvious and unarguable." Id., at 509, 84 S.Ct., at 1665. The Court explained that the statute at issue was not the least restrictive alternative available: "The prohibition against travel is supported only by a tenuous relationship between the bare fact of organizational membership and the activity Congress sought to proscribe." Id., at 514, 84 S.Ct., at 1668.
49
Beliefs and speech are only part of Agee's "campaign to fight the United States CIA." In that sense, this case contrasts markedly with the facts in Kent and Aptheker.57 No presumptions, rebuttable or otherwise, are involved, for Agee's conduct in foreign countries presents a serious danger to American officials abroad and serious danger to the national security.58
50
We hold that the policy announced in the challenged regulations is "sufficiently substantial and consistent" to compel the conclusion that Congress has approved it. See Zemel, 381 U.S., at 12, 85 S.Ct., at 1279.
III
51
Agee also attacks the Secretary's action on three constitutional grounds: first, that the revocation of his passport impermissibly burdens his freedom to travel; second, that the action was intended to penalize his exercise of free speech and deter his criticism of Government policies and practices; and third, that failure to accord him a prerevocation hearing violated his Fifth Amendment right to procedural due process.
52
In light of the express language of the passport regulations, which permits their application only in cases involving likelihood of "serious damage" to national security or foreign policy, these claims are without merit.
53
Revocation of a passport undeniably curtails travel, but the freedom to travel abroad with a "letter of introduction" in the form of a passport issued by the sovereign is subordinate to national security and foreign policy considerations; as such, it is subject to reasonable governmental regulation. The Court has made it plain that the freedom to travel outside the United States must be distinguished from the right to travel within the United States. This was underscored in Califano v. Aznavorian, 439 U.S. 170, 176, 99 S.Ct. 471, 474-475, 58 L.Ed.2d 435 (1978):
54
"Aznavorian urges that the freedom of international travel is basically equivalent to the constitutional right to interstate travel, recognized by this Court for over 100 years. Edwards v. California, 314 U.S. 160, 62 S.Ct. 164, 86 L.Ed. 119; Twining v. New Jersey, 211 U.S. 78, 97, 29 S.Ct. 14, 18, 53 L.Ed. 97; Williams v. Fears, 179 U.S. 270, 274, 21 S.Ct. 128, 129, 45 L.Ed. 186; Crandall v. Nevada, 6 Wall. 35, 43-44, 18 L.Ed. 744; Passenger Cases, 7 How. 283, 492, 48 U.S. 283, 492, 12 L.Ed. 702 (Taney, C. J., dissenting). But this Court has often pointed out the crucial difference between the freedom to travel internationally and the right of interstate travel.
55
" 'The constitutional right of interstate travel is virtually unqualified. United States v. Guest, 383 U.S. 745, 757-758, 86 S.Ct. 1170, 1177-1178, 16 L.Ed.2d 239 (1966); Griffin v. Breckenridge, 403 U.S. 88, 105-106, 91 S.Ct. 1790, 1799-1800, 29 L.Ed.2d 338 (1971). By contrast the "right" of international travel has been considered to be no more than an aspect of the "liberty" protected by the Due Process Clause of the Fifth Amendment. As such this "right," the Court has held, can be regulated within the bounds of due process.' (Citations omitted.) Califano v. Torres, 435 U.S. 1, 4 n. 6, 98 S.Ct. 906, 908 n. 6, 55 L.Ed.2d 65."
56
It is "obvious and unarguable" that no governmental interest is more compelling than the security of the Nation. Aptheker v. Secretary of State, 378 U.S., at 509, 84 S.Ct., at 1665; accord Cole v. Young, 351 U.S. 536, 546, 76 S.Ct. 861, 868, 100 L.Ed. 1396 (1956); see Zemel, supra, at 13-17, 85 S.Ct., at 1279-1281. Protection of the foreign policy of the United States is a governmental interest of great importance, since foreign policy and national security considerations cannot neatly be compartmentalized.
57
Measures to protect the secrecy of our Government's foreign intelligence operations plainly serve these interests. Thus, in Snepp v. United States, 444 U.S. 507, 509, n. 3, 100 S.Ct. 763, 765, n. 3, 62 L.Ed.2d 704 (1980), we held that "[t]he Government has a compelling interest in protecting both the secrecy of information important to our national security and the appearance of confidentiality so essential to the effective operation of our foreign intelligence service." See also id., at 511-513, 100 S.Ct., at 766-767. The Court in United States v. Curtiss-Wright Export Corp. properly emphasized:
58
"[The President] has his confidential sources of information. He has his agents in the form of diplomatic, consular and other officials. Secrecy in respect of information gathered by them may be highly necessary, and the premature disclosure of it productive of harmful results." 299 U.S., at 320, 57 S.Ct., at 221.
59
Accord, Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S., at 111, 68 S.Ct., at 436; The Federalist No. 64, pp. 392-393 (Mentor ed. 1961).
60
Not only has Agee jeopardized the security of the United States, but he has also endangered the interests of countries other than the United States59—thereby creating serious problems for American foreign relations and foreign policy. Restricting Agee's foreign travel, although perhaps not certain to prevent all of Agee's harmful activities, is the only avenue open to the Government to limit these activities.60
61
Assuming, arguendo, that First Amendment protections reach beyond our national boundaries, Agee's First Amendment claim has no foundation. The revocation of Agee's passport rests in part on the content of his speech: specifically, his repeated disclosures of intelligence operations and names of intelligence personnel. Long ago, however, this Court recognized that "[n]o one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops." Near v. Minnesota ex rel. Olson, 283 U.S. 697, 716, 51 S.Ct. 625, 631, 75 L.Ed. 1357 (1931), citing Z. Chafee, Freedom of Speech 10 (1920). Agee's disclosures, among other things, have the declared purpose of obstructing intelligence operations and the recruiting of intelligence personnel. They are clearly not protected by the Constitution. The mere fact that Agee is also engaged in criticism of the Government does not render his conduct beyond the reach of the law.
62
To the extent the revocation of his passport operates to inhibit Agee, "it is an inhibition of action," rather than of speech. Zemel, 381 U.S., at 16-17, 85 S.Ct., at 1280-1281 (emphasis supplied). Agee is as free to criticize the United States Government as he was when he held a passport—always subject, of course, to express limits on certain rights by virtue of his contract with the Government.61 See Snepp v. United States, supra.
63
On this record, the Government is not required to hold a prerevocation hearing. In Cole v. Young, supra, we held that federal employees who hold "sensitive" positions "where they could bring about any discernible adverse effects on the Nation's security" may be suspended without a presuspension hearing. 351 U.S., at 546-547, 76 S.Ct., at 868-869. For the same reasons, when there is a substantial likelihood of "serious damage" to national security or foreign policy as a result of a passport holder's activities in foreign countries, the Government may take action to ensure that the holder may not exploit the sponsorship of his travels by the United States. "[W]hile the Constitution protects against invasions of individual rights, it is not a suicide pact." Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160, 83 S.Ct. 554, 563, 9 L.Ed.2d 644 (1963). The Constitution's due process guarantees call for no more than what has been accorded here: a statement of reasons and an opportunity for a prompt postrevocation hearing.62
64
We reverse the judgment of the Court of Appeals and remand for further proceedings consistent with this opinion.
65
Reversed and remanded.
66
Justice BLACKMUN, concurring.
67
There is some force, I feel, in Justice BRENNAN's observations, post, at 312-318, that today's decision cannot be reconciled fully with all the reasoning of Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965), and, particularly, of Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204 (1958), and that the Court is cutting back somewhat upon the opinions in those cases sub silentio. I would have preferred to have the Court disavow forthrightly the aspects of Zemel and Kent that may suggest that evidence of a longstanding Executive policy or construction in this area is not probative of the issue of congressional authorization. Nonetheless, believing this is what the Court in effect has done, I join its opinion.
68
Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.
69
Today the Court purports to rely on prior decisions of this Court to support the revocation of a passport by the Secretary of State. Because I believe that such reliance is fundamentally misplaced, and that the Court instead has departed from the express holdings of those decisions, I dissent.
70
* Respondent Philip Agee, a United States citizen residing in West Germany, is a former employee and current critic of the Central Intelligence Agency (CIA). Respondent writes and speaks out extensively on United States clandestine intelligence operations, with the stated goal of disrupting the CIA. Part of his activity apparently involves the identification of United States undercover personnel situated throughout the world.
71
On December 23, 1979, the United States Consul General in Hamburg, West Germany, delivered a letter1 to respondent notifying him that his passport had been revoked pursuant to 22 CFR § 51.70(b)(4) (1980). That regulation, in combination with 22 CFR § 51.71(a) (1980), permits revocation of a passport when "[t]he Secretary determines that the national's activities abroad are causing or are likely to cause serious damage to the national security or the foreign policy of the United States."2
72
Agee declined to follow administrative procedures available to attack the revocation and instead brought this action in the District Court for the District of Columbia for declaratory and injunctive relief against the Secretary of State. For purposes of cross-motions for summary judgment on the facial validity of the regulations, respondent conceded that he was causing or was likely to cause serious damage to national security or foreign policy, and, therefore, fell within the coverage of the regulations. Agee v. Muskie, 203 U.S.App.D.C. 46, 48, 629 F.2d 80, 82 (1980); App. 11. He argued, inter alia, that Congress had not given the Secretary of State authority to promulgate the regulations under which his passport was revoked. Both the District Court, Agee v. Vance, 483 F.Supp. 729 (1980), and the Court of Appeals for the District of Columbia Circuit accepted this argument and granted respondent the relief requested.
II
73
This is not a complicated case. The Court has twice articulated the proper mode of analysis for determining whether Congress has delegated to the Executive Branch the authority to deny a passport under the Passport Act of 1926. Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965); Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204 (1958). The analysis is hardly confusing, and I expect that had the Court faithfully applied it, today's judgment would affirm the decision below.
74
In Kent v. Dulles, supra, the Court reviewed a challenge to a regulation of the Secretary denying passports to applicants because of their alleged Communist beliefs and associations and their refusals to file affidavits concerning present or past membership in the Communist Party. Observing that the right to travel into and out of this country is an important personal right included within the "liberty" guaranteed by the Fifth Amendment, id., at 125-127, 78 S.Ct., at 1118-1119, the Court stated that any infringement of that liberty can only "be pursuant to the law-making functions of the Congress," and that delegations to the Executive Branch that curtail that liberty must be construed narrowly, id., at 129, 78 S.Ct., at 1120. Because the Passport Act of 1926—the same statute at issue here—did not expressly authorize the denial of passports to alleged Communists, the Court examined cases of actual passport refusals by the Secretary to determine whether "it could be fairly argued" that this category of passport refusals was "adopted by Congress in light of prior administrative practice." Id., at 128, 78 S.Ct., at 1119. The Court was unable to find such prior administrative practice, and therefore held that the regulation was unauthorized.
75
In Zemel v. Rusk, supra, the issue was whether the Secretary could restrict travel for all citizens to Cuba. In holding that he could, the Court expressly approved the holding in Kent:
76
"We have held, Kent v. Dulles, supra, and reaffirm today, that the 1926 Act must take its content from history: it authorizes only those passport refusals and restrictions 'which it could fairly be argued were adopted by Congress in light of prior administrative practice.' Kent v. Dulles, supra, at 128, 78 S.Ct., at 1119. So limited, the Act does not constitute an invalid delegation." 381 U.S., at 17-18, 85 S.Ct., at 1281-1282.
77
In reaching its decision, the Court in Zemel relied upon numerous occasions when the State Department had restricted travel to certain international areas: Belgium in 1915; Ethiopia in 1935; Spain in 1936; China in 1937; Yugoslavia in the late 1940's; Hungary in 1949; Czechoslovakia in 1951; Albania, Bulgaria, Communist China, Czechoslovakia, Hungary, Poland, Rumania, and the Soviet Union in 1952; Albania, Bulgaria, and portions of China, Korea, and Vietnam in 1955; and Egypt, Israel, Jordan, and Syria in 1956.
78
As in Kent and Zemel, there is no dispute here that the Passport Act of 1926 does not expressly authorize the Secretary to revoke Agee's passport. Ante, at 290.3 Therefore, the sole remaining inquiry is whether there exists "with regard to the sort of passport [revocation] involved [here], an administrative practice sufficiently substantial and consistent to warrant the conclusion that Congress had implicitly approved it." Zemel v. Rusk, supra, 381 U.S., at 12, 85 S.Ct., at 1279 (emphasis added). The Court today, citing to this same page in Zemel applies a test markedly different from that of Zemel and Kent and in fact expressly disavowed by the latter. The Court states: "We hold that the policy announced in the challenged regulations is 'sufficiently substantial and consistent' to compel the conclusion that Congress has approved it. See Zemel, 381 U.S., at 12 [85 S.Ct., at 1279]." Ante, at 306 (emphasis added). The Court also observes that "a consistent administrative construction of [the Passport Act] must be followed by the courts ' "unless there are compelling indications that it is wrong." ' " Ante, at 291 (emphasis added).
79
But clearly neither Zemel nor Kent holds that a longstanding Executive policy or construction is sufficient proof that Congress has implicitly authorized the Secretary's action. The cases hold that an administrative practice must be demonstrated; in fact Kent unequivocally states that mere construction by the Executive no matter how longstanding and consistent—is not sufficient.4 The passage in Kent is worthy of full quotation:
80
"Under the 1926 Act and its predecessor a large body of precedents grew up which repeat over and again that the issuance of passports is 'a discretionary act' on the part of the Secretary of State. The scholars, the courts, the Chief Executive, and the Attorneys General, all so said. This long-continued executive construction should be enough, it is said, to warrant the inference that Congress adopted it. See Allen v. Grand Central Aircraft Co., 347 U.S. 535, 544-545, 74 S.Ct. 745, 750-751, 98 L.Ed. 933; United States v. Allen-Bradley Co., 352 U.S. 306, 310, 77 S.Ct. 343, 345, 1 L.Ed.2d 347. But the key to that problem, as we shall see, is in the manner in which the Secretary's discretion was exercised, not in the bare fact that he had discretion." 357 U.S., at 124-125, 78 S.Ct., at 1117-1118 (footnotes omitted) (emphasis added).
81
The Court's requirement in Kent of evidence of the Executive's exercise of discretion as opposed to its possession of discretion may best be understood as a preference for the strongest proof that Congress knew of and acquiesced in that authority. The presence of sensitive constitutional questions in the passport revocation context cautions against applying the normal rule that administrative constructions in cases of statutory construction are to be given great weight. Cf. Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965). Only when Congress had maintained its silence in the face of a consistent and substantial pattern of actual passport denials or revocations—where the parties will presumably object loudly, perhaps through legal action, to the Secretary's exercise of discretion—can this Court be sure that Congress is aware of the Secretary's actions and has implicitly approved that exercise of discretion. Moreover, broad statements by the Executive Branch relating to its discretion in the passport area lack the precision of definition that would follow from concrete applications of that discretion in specific cases.5 Although Congress might register general approval of the Executive's overall policy, it still might disapprove of the Executive's pattern of applying that broad rule in specific categories of cases.
82
Not only does the Court ignore the Kent-Zemel requirement that Executive discretion be supported by a consistent administrative practice, but it also relies on the very Executive construction and policy deemed irrelevant in Kent. Thus, noting that "[t]he President and the Secretary of State consistently construed the 1856 [Passport] Act to preserve their authority to withhold passports on national security and foreign policy grounds," ante, at 295, the Court reaches out to hold that "Congress, in 1926, adopted the longstanding administrative construction of the 1856 statute," ante, at 297-298. The Court quotes from 1869 and 1901 opinions of the Attorneys General. But Kent expressly cited both of these opinions as examples of Executive constructions not relevant to the determination whether Congress had implicitly approved the Secretary's exercise of authority. Compare ante, at 295-296, with Kent v. Dulles, 357 U.S., at 125, n. 11, 78 S.Ct., at 1118, n. 11. The Court similarly relies on four Executive Orders issued between 1907 and 1917 to buttress its position, even though Kent expressly cited the same four Orders as examples of Executive constructions inapposite to the proper inquiry. Compare ante, at 296, n. 31, with Kent v. Dulles, supra, at 124, n. 10, 78 S.Ct., at 1117, n. 10.6 Where the Court in Kent discounted the constructions of the Act made by "[t]he scholars, the courts, the Chief Executive, and the Attorneys General," today's Court decides this case on the basis of constructions evident from "an unbroken line of Executive Orders, regulations, instructions to consular officials, and notices to passport holders." Compare ante, at 298, with Kent v. Dulles, supra, at 124, 78 S.Ct., at 1117 (footnotes omitted).7
83
The Court's reliance on material expressly abjured in Kent becomes understandable only when one appreciates the paucity of recorded administrative practice—the only evidence upon which Kent and Zemel permit reliance—with respect to passport denials or revocations based on foreign policy or national security considerations relating to an individual. The Court itself identifies only three occasions over the past 33 years when the Secretary has revoked passports for such reasons. Ante, at 302.8 And only one of these cases involved a revocation pursuant to the regulations challenged in this case. Yet, in 1979 alone, there were 7,835,000 Americans traveling abroad. U.S. Dept. of Commerce, Bureau of Census, Statistical Abstract of the United States 253 (101st ed., 1980).
84
In light of this record, the Court, somewhat defensively, comments: "The Secretary has construed and applied his regulations consistently, and it would be anomalous to fault the Government because there were so few occasions to exercise the announced policy and practice. . . . It would turn Kent on its head to say that simply because we have had only a few situations involving conduct such as that in this record, the Executive lacks the authority to deal with the problem when it is encountered." Ante, at 303. Of course, no one is "faulting" the Government because there are only few occasions when it has seen fit to deny or revoke passports for foreign policy or national security reasons. The point that Kent and Zemel make, and that today's opinion should make, is that the Executive's authority to revoke passports touches an area fraught with important constitutional rights, and that the Court should therefore "construe narrowly all delegated powers that curtail or dilute them." Kent v. Dulles, supra, 357 U.S., at 129, 78 S.Ct., at 1120. The presumption is that Congress must expressly delegate authority to the Secretary to deny or revoke passports for foreign policy or national security reasons before he may exercise such authority. To overcome the presumption against an implied delegation, the Government must show "an administrative practice sufficiently substantial and consistent." Zemel v. Rusk, 381 U.S., at 12, 85 S.Ct., at 1279. Only in this way can the Court satisfy itself that Congress has implicitly approved such exercise of authority by the Secretary.
III
85
I suspect that this case is a prime example of the adage that "bad facts make bad law." Philip Agee is hardly a model representative of our Nation. And the Executive Branch has attempted to use one of the only means at its disposal, revocation of a passport, to stop respondent's damaging statements. But just as the Constitution protects both popular and unpopular speech, it likewise protects both popular and unpopular travelers. And it is important to remember that this decision applies not only to Philip Agee, whose activities could be perceived as harming the national security, but also to other citizens who may merely disagree with Government foreign policy and express their views.9
86
The Constitution allocates the lawmaking function to Congress, and I fear that today's decision has handed over too much of that function to the Executive. In permitting the Secretary to stop this unpopular traveler and critic of the CIA, the Court professes to rely on, but in fact departs from, the two precedents in the passport regulation area, Zemel and Kent. Of course it is always easier to fit oneself within the safe haven of stare decisis than boldly to overrule precedents of several decades' standing. Because I find myself unable to reconcile those cases with the decision in this case, however, and because I disagree with the Court's sub silentio overruling of those cases, I dissent.10
1
Agee has been deported from Great Britain, France, and the Netherlands. Dirty Work: The CIA in Western Europe 286-300 (P. Agee & L. Wolf eds. 1978).
2
The 1974 London statement was as follows:
87
"Today, I announced a new campaign to fight the United States CIA wherever it is operating. This campaign will have two main functions: First, to expose CIA officers and agents and to take the measures necessary to drive them out of the countries where they are operating; secondly, to seek within the United States to have the CIA abolished.
88
"The effort to identify CIA people in foreign countries has been going on for some time. . . . (Today's) list was compiled by a small group of Mexican comrades whom I trained to follow the comings and goings of CIA people before I left Mexico City.
89
"Similar lists of CIA people in other countries are already being compiled and will be announced when appropriate. We invite participation in this campaign from all those who strive for social justice and national dignity." App. to Pet. for Cert. 107a.
90
See also P. Agee, Exposing the CIA, App. in No. 80-1125 (CADC), pp. 76-79 (hereinafter CA App.).
3
In a series of incidents between 1974 and 1978, and in two books published in the same period, Agee has identified hundreds of persons as CIA personnel. See App. to Pet. for Cert. 108a-111a; see generally P. Agee, Inside the Company: CIA Diary (1975); Dirty Work: The CIA in Western Europe 17-43 (P. Agee & L. Wolf eds. 1978), CA App. 66-79. See also P. Agee, Introduction, in Dirty Work 2: The CIA in Africa (E. Ray, W. Schapp, K. Van Meter, & L. Wolf eds. 1979). The latter two books contain "Who's Where" sections listing the names of alleged CIA employees on a country-by-country basis and "Who's Who" sections containing detailed biographical information on all such persons.
4
See Affidavits of CIA Deputy Director for Operations, App. to Pet. for Cert. 112a, 114a; see also n. 5, infra.
5
As a condition for his employment by the Agency, Agee contracted that "[i]n consideration of my employment by CIA I undertake not to publish or to participate in the publication of any information or material relating to the Agency, its activities or intelligence activities generally, either during or after the term of my employment by the Agency without specific prior approval by the Agency." CA App. 65.
This language is identical to the clause which we construed in Snepp v. United States, 444 U.S. 507, 508, 100 S.Ct. 763, 764, 62 L.Ed.2d 704 (1980).
In a separate lawsuit wherein the Government sought to enforce Agee's agreement, the District Court held that "Agee has shown a flagrant disregard for the requirements of the Secrecy Agreement." The court noted: "There is no dispute that Agee has openly flouted his refusal to submit writings and speeches to the CIA for prior approval, and has expressed a clear intention to reveal classified information and bring harm to the agency and its personnel." Agee v. Central Intelligence Agency, 500 F.Supp. 506, 509 (DC 1980) (footnote omitted).
6
Affidavit of CIA Deputy Director for Operations, App. to Pet. for Cert. 112a.
7
In December 1975, Richard Welch was murdered in Greece after the publication of an article in an English-language newspaper in Athens naming Welch as CIA Chief of Station. CA App. 92. In July 1980, two days after a Jamaica press conference at which Agee's principal collaborator identified Richard Kinsman as CIA Chief of Station in Jamaica, Kinsman's house was strafed with automatic gunfire. Four days after the same press conference, three men approached the Jamaica home of another man similarly identified as an Agency officer. Police challenged the men and gunfire was exchanged. Affidavit of United States Ambassador to Jamaica, App. to Pet. for Cert. 125a-127a. In January 1981, two American officials of the American Institute for Free Labor Development, previously identified as a CIA front by Agee and discussed extensively in Agee's book Inside the Company: CIA Diary, were assassinated in El Salvador. N.Y. Times, Jan. 15, 1981, p. A10, cols. 4-5; id., Jan. 5, 1981, p. A1, col. 6, p. A10, cols. 3-6.
The Secretary does not assert that Agee has specifically incited anyone to commit murder. However, affidavits of the CIA's Deputy Director for Operations set out and support his judgment that Agee's purported identifications are "thinly-veiled invitations to violence," that "Agee's actions could, in today's circumstances, result in someone's death," and that Agee's conduct has "markedly increased the likelihood of individuals so identified being the victims of violence." App. to Pet. for Cert. 111a, 116a-118a. One of those affidavits also shows that the ultimate effectiveness of Agee's program depends on activities of hostile foreign groups, and that such groups can be expected to engage in physical surveillance, harassment, kidnaping, and, in extreme cases, murder of United States officials abroad. Id., at 116a-117a.
8
Id., at 120a. Both the District Court and the Court of Appeals suggested that the immediate impetus for the passport revocation may have been that Agee's activities took on special significance in light of the crisis following the seizure of the American Embassy in Iran on November 4, 1979. Agee v. Vance, 483 F.Supp. 729 (DC 1980); Agee v. Muskie, 203 U.S.App.D.C. 46, 47, 629 F.2d 80, 81 (1980). The captors held more than 50 United States citizens, many of whom were diplomats and some of whom the captors alleged to be CIA agents. Government affidavits show that Agee made contact with the captors, urged them to demand certain CIA documents, and offered to travel to Iran to analyze the documents. App. to Pet. for Cert. 117a; N.Y. Times, Dec. 24, 1979, p. 6, col. 5. A Government affidavit also mentions, but does not vouch for the accuracy of, an earlier report that Agee had been invited to travel to Iran in order to participate in a "Revolutionary Tribunal" to pass judgment on those hostages. App. to Pet. for Cert. 116a-117a.
9
See 22 CFR §§ 51.80-51.89 (1980).
10
Agee made no effort to exhaust administrative remedies. The Secretary initially defended on this ground. Tr. 5-6 (Jan. 3, 1980). However, after Agee conceded that his activities are causing or are likely to cause serious damage to the national security (see n. 11, infra), the Secretary did not continue to rely on failure to exhaust available administrative remedies. Tr. 17 (Jan. 3, 1980).
11
Agee's counsel certified that "[t]here aren't any factual disputes in the case" and stated that for the purposes of the motion "I would concede any charge [the Government] want[s] to make against him." Id., at 2, 13. See also Secretary's Statement of Undisputed Material Facts, CA App. 35. The Secretary made clear that the Government's affidavits were "an effort to establish the kinds of things which would have been established through the administrative process if Mr. Agee had proceeded in that direction. . . ." Tr. 8 (Jan. 29, 1980).
12
483 F.Supp., at 730.
13
This statute is set out infra, at 290.
14
On November 14, 1979, in response to the seizure of the American Embassy in Iran (n. 8, supra), President Carter declared a national emergency. Exec. Order No. 12170, 3 CFR 457 (1980). The President's Order contains an express finding, pursuant to the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701-1706 (1976 ed., Supp. III), "that the situation in Iran constitutes an unusual and extraordinary threat to the national security, foreign policy and economy of the United States." The Secretary has never relied upon that Order to justify the passport revocation in the present case. General restrictions on travel to Iran under American passports apparently did not go into effect until several months after Agee's passport was revoked. See Exec. Order No. 12211, 3 CFR 253 (1980). Accordingly, our decision in this case does not depend on the declaration of national emergency.
15
The Court of Appeals stressed that Agee had not been indicted. In dicta, the court expressed approval of 22 CFR § 51.70(a)(1) (1980), which provides for withholding of a passport if the applicant is the subject of an outstanding federal felony warrant. 203 U.S.App.D.C., at 53, n. 10, 629 F.2d, at 87, n. 10, citing Kent v. Dulles, 357 U.S. 116, 127-128, 78 S.Ct. 1113, 1118-1119, 2 L.Ed.2d 1204 (1958).
16
The Secretary represents that Agee's passport has been canceled and that the Secretary has provided Agee with identification papers permitting him to return to the United States. Tr. of Oral Arg. 11. The regulations at issue contain an exception for "direct return to the United States." 22 CFR § 51.70(a) (1980).
17
In light of our decision on this issue, we have no occasion in this case to determine the scope of "the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations—a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution." See United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319-320, 57 S.Ct. 216, 220-221, 81 L.Ed. 255 (1936).
18
In fact, the pertinent language has not been changed since 1874. See n. 26, infra. The sole amendment to the 1926 provision, enacted in 1978, limits the power of the Executive to impose geographic restrictions on the use of United States passports in the absence of war, armed hostilities, or imminent danger to travelers. See infra, at 300, and n. 48.
19
However, by statute originally enacted in 1856, passports may not be issued to persons who do not owe allegiance to the United States. 22 U.S.C. § 212; Kent, supra, at 127, 78 S.Ct., at 1118. This provision in no way diminishes the Secretary's discretion as to eligible persons.
20
Tr. of Oral Arg. 33. That has been the Secretary's consistent construction of the statute. See 22 CFR § 51.71(a) (1980), which provides, inter alia, that the grounds for denying passports set out in § 51.70 are also grounds for revoking, restricting, or limiting passports.
21
This case does not involve a criminal prosecution; accordingly, strict construction against the Government is not required.
22
With exceptions during the War of 1812 and the Civil War, see infra, at 294, n. 25, and 295, passports were not mandatory until 1918. See infra, at 296-297. It was not until 1978 that passports were required by statute in nonemergency peacetime. See n. 47, infra.
23
In Urtetiqui v. D'Arcy, 9 Pet. 692, 699 (1835), the Court observed:
"There is no law of the United States, in any manner regulating the issuing of passports, or directing upon what evidence it may be done, or declaring their legal effect. It is understood, as matter of practice, that some evidence of citizenship is required, by the Secretary of State, before issuing a passport. This, however, is entirely discretionary with him."
24
See, e. g., United States v. Curtiss-Wright Export Corp., 299 U.S., at 320-321, 57 S.Ct. at 221; The Federalist No. 64, pp. 392-396 (Mentor ed. 1961).
25
For example, the Act of Feb. 26, 1803, ch. 9, § 8, 2 Stat. 205, prohibited State Department representatives abroad from knowingly issuing passports to aliens, and the Act of Feb. 4, 1815, ch. 31, § 10, 3 Stat. 199, prohibited travel to or from enemy territory "without a passport first obtained from the Secretary of State, the Secretary of War, or other officer . . . authorized by the President of the United States, to grant the same."
26
An 1874 amendment replaced the phrase "shall be authorized to" with "may." Rev.Stat. § 4075. We are aware of no legislative history pertinent to that change. To the extent that amendment is relevant, it supports the Secretary's position in this case; "may" expressly recognizes substantial discretion. See 23 Op.Atty.Gen. 509, 511 (1901).
27
The main impetus for the 1856 statute was the confusion caused by state and local officials issuing passports, a relic of the colonial period. See U.S. Dept. of State, The American Passport 36-42 (1898).
28
Senator Mason, sponsor of the bill that became the 1856 statute, stated: "[I]t was the intention of the bill to leave, all that pertains to the diplomatic service of the country . . . exclusively to the Executive, where we consider the Constitution has placed it." Cong.Globe, 34th Cong., 1st Sess., 1798 (1856).
29
Despite this widely publicized Executive policy restricting passport eligibility on national security grounds, the only congressional action arguably in response to it was a statute in 1866 which re-enacted an 1856 prohibition against issuing passports to noncitizens. Act of May 30, 1866, ch. 102, 14 Stat. 54.
30
Rules Governing the Granting and Issuing of Passports in the United States, Sept. 12, 1903, § 16, quoted in 3 J. Moore, A Digest of International Law 902 (1906)
31
See Exec. Order No. 654 (1907); Exec. Order No. 2119-A (1915); Exec. Order No. 2362-A (1916); Exec. Order No. 2519-A (1917).
32
3 G. Hackworth, Digest of International Law § 268, pp. 498-499 (1942), discussing refusal of a passport to an American citizen residing in China whose promotion of "gambling and immoral houses" had developed into a scandal.
33
2 Papers Relating to Foreign Relations of the United States—1907, p. 1082, discussing refusal of a passport to an American citizen residing in Egypt who was slandering foreign diplomats.
34
Act of May 22, 1918, ch. 81, §§ 1-2, 40 Stat. 559. This statute provided in pertinent part that, upon Presidential wartime proclamation, "it shall, except as otherwise provided by the President and subject to such limitations and exceptions as the President may authorize and prescribe, be unlawful for any citizen of the United States to depart from or enter or attempt to depart from or enter the United States unless he bears a valid passport."
Unlike the 1815 statute, n. 25, supra, which was limited in application to the then-current hostilities, the 1918 Act applied "when the United States is at war" and the President issued a proclamation. § 1, 40 Stat. 559.
35
H. R. Rep. No. 485, 65th Cong., 2d Sess., 2 (1918). Congress focused on the case of "a United States citizen who recently returned from Europe after having, to the knowledge of our Government, done work in a neutral country for the German Government. There was strong suspicion that he came to the United States for no proper purpose. Nevertheless not only was it impossible to exclude him but it would now be impossible to prevent him from leaving the country if he saw fit to do so. The known facts in his case are not sufficient to warrant the institution of a criminal prosecution, and in any event the difficulty of securing legal evidence from the place of his activities in Europe may easily be imagined." Id., at 3.
36
See n. 26, supra.
37
See Validity of Passports: Hearings on H.R.11947 before the House Committee on Foreign Affairs, 69th Cong., 1st Sess., 5, 8, 10-11 (1926) (1926 Hearings).
38
Besides incorporating the 1856 provision, the 1926 Act added other provisions concerning fees and maximum terms for passports. See Id., at 2. Assistant Secretary of State Carr, whom the House Committee regarded as "more familiar than anyone else with the entire subject," explained that the only change in existing law worked by the pertinent section of the 1926 Act was to recognize authority of the Secretary of State to empower consuls, in addition to diplomatic officers, to issue passports in foreign counties. Id., at 1, 11.
39
See Exec. Order No. 4800 (1928); Exec. Order No. 5860 (1932); Exec. Order No. 7856, 3 Fed.Reg. 681 (1938).
40
See 6 Fed.Reg. 5821, 6069-6070, 6349 (1941); 17 Fed.Reg. 8013 (1952); 22 CFR § 51.136 (1958).
41
See, e. g., U.S. Dept. of State, Abstract of Passport Laws and Precedents, Passport Office Instructions, Code No. 7.21 (Nov. 1, 1955), excluding "[p]ersons whose travel would . . . be inimical to the best interests of the United States," and "[p]ersons whose travel would endanger the security of the United States."
42
From 1948 to 1955, the Department notified all bearers of passports that "interfere[nce] in the political affairs of foreign countries" would be taken as a ground for refusing passports and for refusing protection. U.S. Dept. of State, Information for Bearers of Passports (Jan. 1, 1948, through Jan. 15, 1955, eds.).
43
See Hearing on Right to Travel before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 85th Cong., 1st Sess., pt. 2, pp. 59-61 (1957); Proposed Travel Controls, Hearings on S. 3243 before the Subcommittee to Investigate the Administration of the Internal Security Act and Other Internal Security Laws of the Senate Committee on the Judiciary, 89th Cong., 2d Sess., 72 (1966).
44
Senate Committee on Government Operations, Reorganization of the Passport Functions of the Department of State, 86th Cong., 2d Sess., 13 (Comm. Print 1960).
45
Pursuant to the general delegation statute, 3 U.S.C. § 301, the power of the President to prescribe passport regulations has been delegated to the Secretary. Exec. Order No. 11295, 3 CFR 570 (1966-1970 Comp.).
46
Section 5170(b)(4) authorizes denial of a passport for this reason. Section 51.71(a), setting out grounds for revoking, restricting, or limiting passports, incorporates § 51.70 by reference. There have been no pertinent changes in these regulations since 1966.
47
Act of Oct. 7, 1978, § 707(b), 92 Stat. 993. This statute provides:
"Except as otherwise provided by the President and subject to such limitations and exceptions as the President may authorize and prescribe, it shall be unlawful for any citizen of the United States to depart from or enter, or attempt to depart from or enter, the United States unless he bears a valid passport."
This provision amended § 215 of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1185. Under the 1952 version, passports were required only in wartime or when the President had declared an emergency.
48
Act of Oct. 7, 1978, § 124, 92 Stat. 971, 22 U.S.C. § 211a (1976 ed., Supp. IV). This amendment added the following language to the Passport Act:
"Unless authorized by law, a passport may not be designated as restricted for travel to or for use in any country other than a country with which the United States is at war, where armed hostilities are in progress, or where there is imminent danger to the public health or the physical safety of United States travellers."
The statute provides that the purpose of this amendment is "achieving greater United States compliance with the provisions of the Final Act of the Conference on Security and Cooperation in Europe (signed at Helsinki on August 1, 1975)." 92 Stat. 971.
49
See also S.Rep.No.94-1168, pp. 32-33 (1976).
50
Indeed, the inference of congressional approval is stronger here than in Zemel, where the Court relied on amendments to the Travel Control Act. 381 U.S., at 11-12, 85 S.Ct., at 1278-1279. Here, the amendment was to the Passport Act itself. Congress is therefore presumed to have adopted the administrative construction. Lorillard v. Pons, 434 U.S. 575, 580, 98 S.Ct. 866, 870, 55 L.Ed.2d 40 (1978).
51
The Court of Appeals accepted this argument. See 203 U.S.App.D.C., at 53, 629 F.2d, at 87, quoted supra, at 288.
52
See N. Y. Times, Apr. 11, 1948, p. E9.
53
Brief for Petitioner 39; see Developments in the Law—The National Security Interest and Civil Liberties, 85 Harv.L.Rev. 1130, 1150-1151, n. 76 (1972).
54
See Sirhan v. Rogers, No. 70 Civ. 3965 (SDNY, Sept. 11, 1970), appeal dism'd, No. 35364 (CA2, Sept. 11, 1970) (denying plaintiff's request for injunctive relief).
55
Congress considered, but did not enact, proposals to spell out passport standards in the 1926 Act. See 1926 Hearings, supra n. 37, at 4-5.
56
Congress itself has from time to time deemed it necessary to enact peacetime passport restrictions, and those measures recognize considerable discretion in the Executive. e. g., Act of Oct. 7, 1978 (n. 47, supra); Act of May 30, 1866 (nn. 19, 29, supra).
57
The same is true of Dayton v. Dulles, 357 U.S. 144, 78 S.Ct. 1127, 2 L.Ed.2d 1221 (1958), the companion case to Kent. In Dayton, the Secretary refused to issue a passport to a physicist who sought to go to India to engage in experimental research. The Secretary relied on the applicant's " 'connection with the Science for Victory Committee and his association at that time with various communists,' " and on his " 'association with persons suspected of being part of the Rosenberg espionage ring and his alleged presence at an apartment in New York which was allegedly used for microfilming material obtained for the use of a foreign government.' " Id., at 146, 78 S.Ct., at 1128. Although reserving the question of "[w]hether there are undisclosed grounds adequate to sustain the Secretary's action," this Court held that the Secretary's "Decision and Findings" showed "only a denial of a passport for reasons which we have today held to be impermissible," citing Kent, 357 U.S., at 150, 78 S.Ct., at 1130. The "Decision and Findings," set out in the Appendix to the Court's opinion, id., at 150-154, 78 S.Ct., at 1130-1132; does not cite a single instance of Dayton's conduct, as distinguished from mere support for "the Communist movement" or association with known Communists.
58
See supra, at 283-287, and nn. 1-8.
59
Agee's deportation from Great Britain was expressly grounded, inter alia, on Agee's "disseminating information harmful to the security of the United Kingdom," and his "aid[ing] and counsel[ing] others in obtaining for publication information which could be harmful to the security of the United Kingdom." P. Agee & L. Wolf, supra n. 1, at 289.
60
Agee argues that the Government should be limited to an injunction ordering him to comply with his secrecy agreement. Tr. of Oral Arg. 36-39. This argument ignores the governmental interests at stake. As Agee concedes, such an injunction would not be enforceable outside of the United States. Id., at 39.
61
The District Court held that since Agee's conduct falls within the core of the regulation, Agee lacks standing to contend that the regulation is vague and overbroad. Tr. 11-12 (Jan. 3, 1980). We agree. See Parker v. Levy, 417 U.S. 733, 755-756, 94 S.Ct. 2547, 2561-2562, 41 L.Ed.2d 439 (1974).
In any event, there is no basis for a claim that the regulation is being used as a subterfuge to punish criticism of the Government. As evidenced in this case, the Government's interpretation of the terms "serious damage" and "national security" shows proper regard for constitutional rights and is precisely in accord with our holdings on the subject. E. g., Cole v. Young, 351 U.S. 536, 76 S.Ct. 861, 100 L.Ed. 1396 (1956). Nor is there any basis for a claim of discriminatory enforcement. The Government is entitled to concentrate its scarce legal resources on cases involving the most serious damage to national security and foreign policy.
62
We do not decide that these procedures are constitutionally required.
1
The letter stated in pertinent part:
"The Department's action is predicated upon a determination made by the Secretary under the provisions of Section 51.70(b)(4) that your activities abroad are causing or are likely to cause serious damage to the national security or the foreign policy of the United States. The reasons for the Secretary's determination are, in summary, as follows: Since the early 1970's, it has been your stated intention to conduct a continuous campaign to disrupt the intelligence operations of the United States. In carrying out that campaign, you have travelled in various countries (including, among others, Mexico, the United Kingdom, Denmark, Jamaica, Cuba and Germany), and your activities in those countries have caused serious damage to the national security and the foreign policy of the United States. Your stated intention to continue such activities threatens additional damage of the same kind." Quoted in Agee v. Muskie, 203 U.S.App.D.C. 46, 48, 629 F.2d 80, 82 (1980).
2
Title 22 CFR § 51.71(a) (1980) allows revocation, restriction, or limitation of a passport where the national would not be entitled to issuance of a new passport pursuant to 22 CFR § 51.70 (1980). For purposes of this case, denial and revocation of a passport are treated identically.
3
The Passport Act of 1926, 22 U.S.C. § 211a (1976 ed., Supp. IV), states in pertinent part:
"The Secretary of State may grant and issue passports, and cause passports to be granted, issued, and verified in foreign countries by diplomatic representatives of the United States . . . under such rules as the President shall designate and prescribe for and on behalf of the United States, and no other person shall grant, issue, or verify such passports."
4
The lower courts have had no trouble understanding and following the holdings of Kent and Zemel. See, e. g., Lynd v. Rusk, 128 U.S.App.D.C. 399, 404-405, 389 F.2d 940, 945-946 (1967); Woodward v. Rogers, 344 F.Supp. 974, 985 (DC 1972), summarily aff'd, 159 U.S.App.D.C. 57, 486 F.2d 1317 (1973).
5
For instance, the petitioner cites a rule promulgated by the Executive Branch in 1903 providing that "[t]he Secretary of State has the right in his discretion to refuse to issue a passport, and will exercise this right towards anyone who, he has reason to believe, desires a passport to further an unlawful or improper purpose." 3 J. Moore, A Digest of International Law 902 (1906); Brief for Petitioner 28. This statement can hardly be thought to communicate to Congress the contours of the Executive's discretion; indeed it is little more than embellishment on the passport legislation itself.
6
In contrast with the Kent Court, today's Court relies on Executive Orders promulgated after passage of the Passport Act of 1926. Compare ante, at 298, n. 39, with Kent v. Dulles, 357 U.S., at 124, n. 10, 78 S.Ct., at 1117, n. 10.
7
Even if the Court were correct to use administrative constructions of passport legislation, it is by no means certain that the Executive did construe the Acts to give it the discretion alleged here, since it sometimes referred to the unqualified rights of citizens to passports. See, e. g., 15 Op.Atty.Gen. 114, 117 (1876); 13 Op.Atty.Gen. 397, 398 (1871). Indeed the State Department has sought legislation from Congress to provide the sort of authority exercised in this case. See S. 4110, § 103(6), 85th Cong., 2d Sess. (1958); Hearings on S. 2770, S. 3998, S. 4110, and S. 4137 before the Senate Committee on Foreign Relations, 85th Cong., 2d Sess., 1, 4 (1958); see also H.R. 14895, § 205(e), 89th Cong., 2d Sess. (1966). This hardly suggests that the Executive thought it had such authority.
8
The Court of Appeals below identified a total of six denials or revocations that were arguably for foreign policy or national security reasons. 203 U.S.App.D.C., at 51, 629 F.2d, at 86. Two of the six occurred prior to passage of the Passport Act of 1926, three during the 1950's, and one over the past 12 years, Judge MacKinnon's dissenting opinion below and the petitioner's brief identify only a few more cases. However, as the petitioner readily admits:
"Because passport files are maintained by name rather than by category of applicant or reason for disposition, it is virtually impossible to compile comprehensive statistical data regarding passport denials on national security or foreign policy grounds." Brief for Petitioner 29, n. 22.
One wonders, then, how the petitioner can argue that Congress was aware of any administrative practice, when the data is unavailable even to the Executive. In any event, the slim practice that Judge MacKinnon and the petitioner cite could hardly be termed a sufficiently consistent and substantial administrative practice to pass the Kent-Zemel test.
9
An excerpt from the petitioner's portion of the oral argument is particularly revealing:
"QUESTION: General McCree, supposing a person right now were to apply for a passport to go to Salvador, and when asked the purpose of his journey, to say, to denounce the United States policy in Salvador in supporting the junta. And the Secretary of State says, I just will not issue a passport for that purpose. Do you think that he can consistently do that in the light of our previous cases?
"MR. McCREE: I would say, yes, he can. Because we have to vest these—The President of the United States and the Secretary of State working under him are charged with conducting the foreign policy of the Nation, and the freedom of speech that we enjoy domestically may be different from that that we can exercise in this context." Tr. of Oral Arg. 20.
The reach of the Secretary's discretion is potentially staggering.
10
Because I conclude that the regulation is invalid as an unlawful exercise of authority by the Secretary under the Passport Act of 1926, I need not decide the important constitutional issues presented in this case. However, several parts of the Court's whirlwind treatment of Agee's constitutional claims merit comment, either because they are extreme oversimplifications of constitutional doctrine or mistaken views of the law and facts of this case.
First, the Court states:
91
"To the extent the revocation of his passport operates to inhibit Agee, 'it is an inhibition of action,' rather than of speech. . . . Agee is as free to criticize the United States Government as he was when he held a passport—always subject, of course, to express limits on certain rights by virtue of his contract with the Government." Ante, at 309 (footnote omitted).
92
Under the Court's rationale, I would suppose that a 40-year prison sentence imposed upon a person who criticized the Government's food stamp policy would represent only an "inhibition of action." After all, the individual would remain free to criticize the United States Government, albeit from a jail cell.
93
Respondent argues that the revocation of his passport "was intended to harass, penalize, and deter his criticism of United States policies and practices, in violation of the First Amendment." Brief for Respondent 112. The Court answers:
94
"Agee's disclosures, among other things, have the declared purpose of obstructing intelligence operations and the recruiting of intelligence personnel. They are clearly not protected by the Constitution." Ante, at 308-309. The Court seems to misunderstand the prior precedents of this Court, for Agee's speech is undoubtedly protected by the Constitution. However, it may be that respondent's First Amendment right to speak is outweighed by the Government's interest in national security. The point respondent makes, and one that is worthy of plenary consideration, is that revocation of his passport obviously does implicate First Amendment rights by chilling his right to speak, and therefore the Court's responsibility must be to balance that infringement against the asserted governmental interests to determine whether the revocation contravenes the First Amendment. I add that Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931), is hardly a relevant or convincing precedent to sustain the Secretary's action here. Only when there is proof that the activity "must inevitably, directly, and immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea" does the Near exception apply. New York Times Co. v. United States, 403 U.S. 713, 726-727, 91 S.Ct. 2140, 2147-2148, 29 L.Ed.2d 822 (1971) (BRENNAN, J., concurring). Agee's concession in the trial court below was only for the purpose of challenging the facial validity of the regulation, not its application to his case. Therefore, until the facts are known, the majority no less than I can have no idea whether Agee's conduct actually would fall within the extreme factual category presented by Near.
95
Second, the Court purports to agree with the District Court's holding that Agee lacks standing to contend that the regulation is vague and overbroad because his conduct falls within the core of the regulation. Ante, at 309, n. 61. I find this an untenable conclusion on the record before us and the precedents of this Court. The District Court nowhere held that respondent lacked standing to contend vagueness and overbreadth. At most, on the pages cited by the Court, Judge Gesell stated: "Your client, you would be conceding, falls within the core of the objective of the regulation and the fact that it may be overbroad as to somebody else isn't very persuasive to me." Tr. 11 (Jan. 3, 1980). Not only is this obviously not a holding, and not only did Judge Gesell never mention vagueness, but further portions of the transcript clearly establish that Judge Gesell expressly declined to reach Agee's overbreadth claim for purposes of this summary judgment motion, and that this claim was reserved for future consideration. Id., at 16. In any event, it is strange indeed to suggest that an individual whose activities admittedly fall within the core of the challenged regulation does not have standing to argue overbreadth. After all, the purpose of the overbreadth doctrine in First Amendment cases is precisely to permit a person who falls within the legislation nevertheless to challenge the wide sweep of the legislation as it affects another's protected activity. See, e. g., Gooding v. Wilson, 405 U.S. 518, 520-521, 92 S.Ct. 1103, 1105-1106, 31 L.Ed.2d 408 (1972). And nothing in Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974), the case cited by the Court, detracts from that doctrine.
96
Because the Court concludes that Agee has no standing to raise vagueness and overbreadth claims, it does not decide the question whether the challenged regulation is constitutionally infirm under those doctrines. I can only say that, for me, these are substantial issues highlighted particularly by the Solicitor General's comments at oral argument as to the reach of the regulations. See n. 9, supra.
| 23
|
453 U.S. 454
101 S.Ct. 2860
69 L.Ed.2d 768
State of NEW YORK, Petitioner,v.Roger BELTON.
No. 80-328.
Argued April 27, 1981.
Decided July 1, 1981.
Rehearing Denied Sept. 23, 1981.
See 453 U.S. 950, 102 S.Ct. 26.
Syllabus
An automobile in which respondent was one of the occupants was stopped by a New York State policeman for traveling at an excessive rate of speed. In the process of discovering that none of the occupants owned the car or was related to the owner, the policeman smelled burnt marihuana and saw on the floor of the car an envelope suspected of containing marihuana. He then directed the occupants to get out of the car and arrested them for unlawful possession of marihuana. After searching each of the occupants, he searched the passenger compartment of the car, found a jacket belonging to respondent, unzipped one of the pockets, and discovered cocaine. Subsequently, respondent was indicted for criminal possession of a controlled substance. After the trial court had denied his motion to suppress the cocaine seized from his jacket pocket, respondent pleaded guilty to a lesser included offense, while preserving his claim that the cocaine had been seized in violation of the Fourth and Fourteenth Amendments. The Appellate Division of the New York Supreme Court upheld the constitutionality of the search and seizure, but the New York Court of Appeals reversed.
Held: The search of respondent's jacket was a search incident to a lawful custodial arrest, and hence did not violate the Fourth and Fourteenth Amendments. The jacket, being located inside the passenger compartment of the car, was "within the arrestee's immediate control" within the meaning of Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, wherein it was held that a lawful custodial arrest creates a situation justifying the contemporaneous warrantless search of the arrestee and of the immediately surrounding area. Not only may the police search the passenger compartment of the car in such circumstances, they may also examine the contents of any containers found in the passenger compartment. And such a container may be searched whether it is open or closed, since the justification for the search is not that the arrestee has no privacy interest in the container but that the lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have. Pp. 457-463.
50 N.Y.2d 447, 429 N.Y.S.2d 574, 407 N.E.2d 420, reversed.
James R. Harvey, Canandaigua, N. Y., for petitioner.
Andrew L. Frey, Washington, D. C., for the U. S., as amicus curiae, by special leave of Court.
Paul J. Cambria, Jr., Buffalo, N. Y., for respondent.
Justice STEWART, delivered the opinion of the Court.
1
When the occupant of an automobile is subjected to a lawful custodial arrest, does the constitutionally permissible scope of a search incident to his arrest include the passenger compartment of the automobile in which he was riding? That is the question at issue in the present case.
2
* On April 9, 1978, Trooper Douglas Nicot, a New York State policeman driving an unmarked car on the New York Thruway, was passed by another automobile traveling at an excessive rate of speed. Nicot gave chase, overtook the speeding vehicle, and ordered its driver to pull it over to the side of the road and stop. There were four men in the car, one of whom was Roger Belton, the respondent in this case. The policeman asked to see the driver's license and automobile registration, and discovered that none of the men owned the vehicle or was related to its owner. Meanwhile, the policeman had smelled burnt marihuana and had seen on the floor of the car an envelope marked "Supergold" that he associated with marihuana. He therefore directed the men to get out the car, and placed them under arrest for the unlawful possession of marihuana. He patted down each of the men and "split them up into four separate areas of the Thruway at this time so they would not be in physical touching area of each other." He then picked up the envelope marked "Supergold" and found that it contained marihuana. After giving the arrestees the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, the state policeman searched each one of them. He then searched the passenger compartment of the car. On the back seat he found a black leather jacket belonging to Belton. He unzipped one of the pockets of the jacket and discovered cocaine. Placing the jacket in his automobile, he drove the four arrestees to a nearby police station.
3
Belton was subsequently indicted for criminal possession of a controlled substance. In the trial court he moved that the cocaine the trooper had seized from the jacket pocket be suppressed. The court denied the motion. Belton then pleaded guilty to a lesser included offense, but preserved his claim that the cocaine had been seized in violation of the Fourth and Fourteenth Amendments. See Lefkowitz v. Newsome, 420 U.S. 283, 95 S.Ct. 886, 43 L.Ed.2d 196. The Appellant Division of the New York Supreme Court upheld the constitutionality of the search and seizure, reasoning that "[o]nce defendant was validly arrested for possession of marihuana, the officer was justified in searching the immediate area for other contraband." 68 A.D.2d 198, 201, 416 N.Y.S.2d 922, 925.
4
The New York Court of Appeals reversed, holding that "[a] warrantless search of the zippered pockets of an unaccessible jacket may not be upheld as a search incident to a lawful arrest where there is no longer any danger that the arrestee or a confederate might gain access to the article." 50 N.Y.2d 447, 449, 429 N.Y.S.2d 574, 575, 407 N.E.2d 420, 421. Two judges dissented. They pointed out that the "search was conducted by a lone peace officer who was in the process of arresting four unknown individuals whom he had stopped in a speeding car owned by none of them and apparently containing an uncertain quantity of a controlled substance. The suspects were standing by the side of the car as the officer gave it a quick check to confirm his suspicions before attempting to transport them to police headquarters . . . ." Id., at 454, 429 N.Y.S.2d, at 578, 407 N.E.2d, at 424. We granted certiorari to consider the constitutionally permissible scope of a search in circumstances such as these. 449 U.S. 1109, 101 S.Ct. 917, 66 L.Ed.2d 838.
II
5
It is a first principle of Fourth Amendment jurisprudence that the police may not conduct a search unless they first convince a neutral magistrate that there is probable cause to do so. This Court has recognized, however, that "the exigencies of the situation" may sometimes make exemption from the warrant requirement "imperative." McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 193, 93 L.Ed. 153. Specifically, the Court held in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, that a lawful custodial arrest creates a situation which justifies the contemporaneous search without a warrant of the person arrested and of the immediately surrounding area. Such searches have long been considered valid because of the need "to remove any weapons that [the arrestee] might seek to use in order to resist arrest or effect his escape" and the need to prevent the concealment or destruction of evidence. Id., at 763, 89 S.Ct., at 2040.
6
The Court's opinion in Chimel emphasized the principle that, as the Court had said in Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 1878, 20 L.Ed.2d 889, "the scope of [a] search must be 'strictly tied to and justified by' the circumstances which rendered its initiation permissible." Quoted in Chimel v. California, supra, at 762, 89 S.Ct., at 2039. Thus while the Court in Chimel found "ample justification" for a search of "the area from within which [an arrestee] might gain possession of a weapon or destructible evidence," the Court found "no comparable justification . . . for routinely searching any room other than that in which an arrest occurs—or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself." 395 U.S., at 763, 89 S.Ct., at 2040.
7
Although the principle that limits a search incident to a lawful custodial arrest may be stated clearly enough, courts have discovered the principle difficult to apply in specific cases. Yet, as one commentator has pointed out, the protection of the Fourth and Fourteenth Amendments "can only be realized if the police are acting under a set of rules which, in most instances, makes it possible to reach a correct determination beforehand as to whether an invasion of privacy is justified in the interest of law enforcement." LaFave, "Case-By-Case Adjudication" Versus "Standardized Procedures": The Robinson Dilemma, 1974 S.Ct.Rev. 127, 142. This is because
8
"Fourth Amendment doctrine, given force and effect by the exclusionary rule, is primarily intended to regulate the police in their day-to-day activities and thus ought to be expressed in terms that are readily applicable by the police in the context of the law enforcement activities in which they are necessarily engaged. A highly sophisticated set of rules, qualified by all sorts of ifs, ands, and buts and requiring the drawing of subtle nuances and hairline distinctions, may be the sort of heady stuff upon which the facile minds of lawyers and judges eagerly feed, but they may be 'literally impossible of application by the officer in the field.' " Id., at 141.
9
In short, "[a] single, familiar standard is essential to guide police officers, who have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront." Dunaway v. New York, 442 U.S. 200, 213-214, 99 S.Ct. 2248, 2256-57, 60 L.Ed.2d 824.
10
So it was that, in United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427, the Court hewed to a straightforward rule, easily applied, and predictably enforced: "[I]n the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a 'reasonable' search under that Amendment." Id., at 235, 94 S.Ct., at 477. In so holding, the Court rejected the suggestion that "there must be litigated in each case the issue of whether or not there was present one of the reasons supporting the authority for a search of the person incident to a lawful arrest." Ibid.
11
But no straightforward rule has emerged from the litigated cases respecting the question involved here—the question of the proper scope of a search of the interior of an automobile incident to a lawful custodial arrest of its occupants. The difficulty courts have had is reflected in the conflicting views of the New York judges who dealt with the problem in the present case, and is confirmed by a look at even a small sample drawn from the narrow class of cases in which courts have decided whether, in the course of a search incident to the lawful custodial arrest of the occupants of an automobile, police may search inside the automobile after the arrestees are no longer in it. On the one hand, decisions in cases such as United States v. Sanders, 631 F.2d 1309 (CA8 1980); United States v. Dixon, 558 F.2d 919 (CA9 1977); and United States v. Frick, 490 F.2d 666 (CA5 1973), have upheld such warrantless searches as incident to lawful arrests. On the other hand, in cases such as United States v. Benson, 631 F.2d 1336 (CA8 1980), and United States v. Rigales, 630 F.2d 364 (CA5 1980), such searches, in comparable factual circumstances, have been held constitutionally invalid.1
12
When a person cannot know how a court will apply a settled principle to a recurring factual situation, that person cannot know the scope of his constitutional protection, nor can a policeman know the scope of his authority. While the Chimel case established that a search incident to an arrest may not stray beyond the area within the immediate control of the arrestee, courts have found no workable definition of "the area within the immediate control of the arrestee" when that area arguably includes the interior of an automobile and the arrestee is its recent occupant. Our reading of the cases suggests the generalization that articles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, even if not inevitably, within "the area into which an arrestee might reach in order to grab a weapon or evidentiary ite[m]." Chimel, 395 U.S., at 763, 89 S.Ct., at 2040. In order to establish the workable rule this category of cases requires, we read Chimel § definition of the limits of the area that may be searched in light of that generalization. Accordingly, we hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile,2 he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.3
13
It follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach.4 United States v. Robinson, supra; Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327. Such a container may, of course, be searched whether it is open or closed, since the justification for the search is not that the arrestee has no privacy interest in the container, but that the lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have. Thus, while the Court in Chimel held that the police could not search all the drawers in an arrestee's house simply because the police had arrested him at home, the Court noted that drawers within an arrestee's reach could be searched because of the danger their contents might pose to the police. 395 U.S., at 763, 89 S.Ct., at 2040.
14
It is true, of course, that these containers will sometimes be such that they could hold neither a weapon nor evidence of the criminal conduct for which the suspect was arrested. However, in United States v. Robinson, the Court rejected the argument that such a container—there a "crumpled up cigarette package"—located during a search of Robinson incident to his arrest could not be searched: "The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification." 414 U.S., at 235, 94 S.Ct., at 476.
15
The New York Court of Appeals relied upon United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538, and Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 in concluding that the search and seizure in the present case were constitutionally invalid.5 But neither of those cases involved an arguably valid search incident to a lawful custodial arrest. As the Court pointed out in the Chadwick case: "Here the search was conducted more than an hour after federal agents had gained exclusive control of the footlocker and long after respondents were securely in custody; the search therefore cannot be viewed as incidental to the arrest or as justified by any other exigency." 433 U.S., at 15, 97 S.Ct., at 2485. And in the Sanders case, the Court explicitly stated that it did not "consider the constitutionality of searches of luggage incident to the arrest of its possessor. See, e. g., United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). The State has not argued that respondent's suitcase was searched incident to his arrest, and it appears that the bag was not within his 'immediate control' at the time of the search." 442 U.S., at 764, n. 11, 99 S.Ct., at 2593, n. 11. (The suitcase in question was in the trunk of the taxicab. See n. 4, supra.)
III
16
It is not questioned that the respondent was the subject of a lawful custodial arrest on a charge of possessing marihuana. The search of the respondent's jacket followed immediately upon that arrest. The jacket was located inside the passenger compartment of the car in which the respondent had been a passenger just before he was arrested. The jacket was thus within the area which we have concluded was "within the arrestee's immediate control" within the meaning of the Chimel case.6 The search of the jacket, therefore, was a search incident to a lawful custodial arrest, and it did not violate the Fourth and Fourteenth Amendments. Accordingly, the judgment is reversed.
17
It is so ordered.
18
Justice REHNQUIST, concurring.
19
Because it is apparent that a majority of the Court is unwilling to overrule Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), and because the Court does not find it necessary to consider the "automobile exception" in its disposition of this case, ante, at 462-463, n. 6, see Robbins v. California, 453 U.S. 420, 437, 101 S.Ct. 2841, 2851, 69 L.Ed.2d 744 (REHNQUIST, J., dissenting), I join the opinion of the Court.
20
Justice STEVENS, concurring in the judgment.
21
For the reasons stated in my dissenting opinion in Robbins v. California, ante, at 444, 101 S.Ct., at 2855, I agree with Justice BRENNAN, Justice WHITE, Justice MARSHALL, Justice BLACKMUN, and Justice REHNQUIST that these two cases should be decided in the same way, and I also agree with THE CHIEF JUSTICE, Justice STEWART, Justice BLACKMUN, Justice POWELL, and Justice REHNQUIST that this judgment should be reversed.
22
Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.
23
In Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), this Court carefully analyzed more than 50 years of conflicting precedent governing the permissible scope of warrantless searches incident to custodial arrest. The Court today turns its back on the product of that analysis, formulating an arbitrary "bright-line" rule applicable to "recent" occupants of automobiles that fails to reflect Chimel's underlying policy justifications. While the Court claims to leave Chimel intact, see ante, at 460, n. 3, I fear that its unwarranted abandonment of the principles underlying that decision may signal a wholesale retreat from our carefully developed search-incident-to-arrest analysis . I dissent.
24
* It has long been a fundamental principle of Fourth Amendment analysis that exceptions to the warrant requirement are to be narrowly construed. Arkansas v. Sanders, 442 U.S. 753, 759-760, 99 S.Ct. 2586, 2590, 61 L.Ed.2d 235 (1979); Mincey v. Arizona, 437 U.S. 385, 393-394, 98 S.Ct. 2408, 2414, 57 L.Ed.2d 290 (1978); Coolidge v. New Hampshire, 403 U.S. 443, 454-455, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971); Vale v. Louisiana, 399 U.S. 30, 34, 90 S.Ct. 1969, 1971, 26 L.Ed.2d 409 (1970); Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 1257, 2 L.Ed.2d 1514 (1958). Predicated on the Fourth Amendment's essential purpose of "shield[ing] the citizen from unwarranted intrusions into his privacy," Jones v. United States, supra, at 498, 78 S.Ct., at 1256, this principle carries with it two corollaries. First, for a search to be valid under the Fourth Amendment, it must be " 'strictly tied to and justified by' the circumstances which rendered its initiation permissible." Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 1878, 20 L.Ed.2d 889 (1968) quoting Warden v. Hayden, 387 U.S. 294, 310, 87 S.Ct. 1642, 1651, 18 L.Ed.2d 782 (1967) (Fortas, J., concurring). See Chimel v. California, supra, at 762, 89 S.Ct., at 2039; Cupp v. Murphy, 412 U.S. 291, 295, 93 S.Ct. 2000, 2003, 36 L.Ed.2d 900 (1973). Second, in determining whether to grant an exception to the warrant requirement, courts should carefully consider the facts and circumstances of each search and seizure, focusing on the reasons supporting the exception rather than on any bright-line rule of general application. See Sibron v. New York, 392 U.S. 40, 59, 88 S.Ct. 1889, 1900, 20 L.Ed.2d 917 (1968); Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777 (1964).1
25
The Chimel exception to the warrant requirement was designed with two principal concerns in mind: the safety of the arresting officer and the preservation of easily concealed or destructible evidence. Recognizing that a suspect might have access to weapons or contraband at the time of arrest, the Court declared:
26
"When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer's safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule." 395 U.S., at 762-763, 89 S.Ct., at 2039-40.
27
The Chimel standard was narrowly tailored to address these concerns: it permits police officers who have effected a custodial arrest to conduct a warrantless search "of the arrestee's person and the area 'within his immediate control' construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence." Id., at 763, 89 S.Ct., at 2040. It thus places a temporal and a spatial limitation on searches incident to arrest, excusing compliance with the warrant requirement only when the search " 'is substantially contemporaneous with the arrest and is confined to the immediate vicinity of the arrest.' " Shipley v. California, 395 U.S. 818, 819, 89 S.Ct. 2053, 2054, 23 L.Ed. 2d 732 (1969), quoting Stoner v. California, 376 U.S. 483, 486, 84 S.Ct. 889, 891, 11 L.Ed.2d 856 (1964). SeeUnited States v. Chadwick, 433 U.S. 1, 14-15, 97 S.Ct. 2476, 2485, 53 L.Ed.2d 538 (1977); Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 220, 88 S.Ct. 1472, 1474, 20 L.Ed.2d 538 (1968); Preston v. United States, supra, at 367, 84 S.Ct., at 883; United States v. Edwards, 415 U.S. 800, 810, 94 S.Ct. 1234, 1240, 39 L.Ed.2d 771 (1974)(STEWART, J., dissenting).2 When the arrest has been consummated and the arrestee safely taken into custody, the justifications underlying Chimel's limited exception to the warrant requirement cease to apply: at that point there is no possibility that the arrestee could reach weapons or contraband. See Chimel v. California, supra, at 764, 89 S.Ct., at 2040.
28
In its attempt to formulate a " 'single, familiar standard . . . to guide police officers, who have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront,' " ante, at 458, quoting Dunaway v. New York, 442 U.S. 200, 213-214, 99 S.Ct. 2248, 2256-57, 60 L.Ed.2d 824 (1979), the Court today disregards these principles, and instead adopts a fiction—that the interior of a car is always within the immediate control of an arrestee who has recently been in the car. The Court thus holds:
29
"[W]hen a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile . . . [and] may also examine the contents of any containers found within the passenger compartment. . . ." Ante, at 460.
30
In so holding, the Court ignores both precedent and principle and fails to achieve its objective of providing police officers with a more workable standard for determining the permissible scope of searches incident to arrest.
II
31
As the facts of this case make clear, the Court today substantially expands the permissible scope of searches incident to arrest by permitting police officers to search areas and containers the arrestee could not possibly reach at the time of arrest. These facts demonstrate that at the time Belton and his three companions were placed under custodial arrest—which was after they had been removed from the car, patted down, and separated—none of them could have reached the jackets that had been left on the back seat of the car. The New York Court of Appeals described the sequence of events as follows:
32
"On April 9, 1978 defendant and three companions were
33
traveling on the New York State Thruway in Ontario County when their car was stopped by a State trooper for speeding. Upon approaching the vehicle, the officer smelled the distinct odor of marijuana emanating from within and observed on the floor an envelope which he recognized as a type that is commonly used to sell the substance. At that point the officer ordered the occupants out of the vehicle, patted each down, removed the envelope from the floor and ascertained that it contained a small amount of marijuana.
34
"After the marijuana was found, the individuals, still standing outside the car, were placed under arrest. The officer then re-entered the vehicle, searched the passenger compartment and seized the marihuana cigarette butts lying in the ashtrays. He also rifled through the pockets of five jackets on the back seat. Upon opening the zippered pocket of one of them, he discovered a small amount of cocaine and defendant's identification." 50 N. Y.2d 447, 449, 429 N.Y.S.2d 574, 575, 407 N.E.2d 420, 421 (1980) (emphasis added).3
35
Concluding that a "warrantless search of the zippered pockets of an unaccessible jacket may not be upheld as a search incident to a lawful arrest where there is no longer any danger that the arrestee or a confederate might gain access to the article," ibid. (emphasis added), the court further stated:
36
"One searches the record in vain for support of the dissenter's claim that at the time of the arrest—the point from which the predicate for the warrantless search is measured—'the jackets were within reach of the four suspects and had not yet been reduced to the exclusive control of the officer.' " Id., at 452, n. 2, 429 N.Y.S.2d, at 577, n. 2, 407 N.E.2d, at 423, n. 2 quoting id., at 454, 429 N.Y.S.2d, at 578, 407 N.E.2d, at 424 (dissenting opinion).
37
By approving the constitutionality of the warrantless search in this case, the Court carves out a dangerous precedent that is not justified by the concerns underlying Chimel. Disregarding the principle "that the scope of a warrantless search must be commensurate with the rationale that excepts the search from the warrant requirement," Cupp v. Murphy, 412 U.S., at 295, 93 S.Ct., at 2003, the Court for the first time grants police officers authority to conduct a warrantless "area" search under circumstances where there is no chance that the arrestee "might gain possession of a weapon or destructible evidence." Chimel v. California, 395 U.S., at 763, 89 S.Ct., at 2040. Under the approach taken today, the result would presumably be the same even if Officer Nicot had handcuffed Belton and his companions in the patrol car before placing them under arrest, and even if his search had extended to locked luggage or other inaccessible containers located in the back seat of the car.
38
This expansion of the Chimel exception is both analytically unsound and inconsistent with every significant search-incident-to-arrest case we have decided in which the issue was whether the police could lawfully conduct a warrantless search of the area surrounding the arrestee. See, e. g., United States v. Chadwick, 433 U.S., at 15, 97 S.Ct., at 2485 (search of footlocker "conducted more than an hour after federal agents had gained exclusive control of the footlocker and long after respondents were securely in custody" not incident to arrest); Coolidge v. New Hampshire, 403 U.S., at 456-457, and n. 11, 91 S.Ct., at 2032-33, and n. 11 (search of car in driveway not incident to arrest in house); Chambers v. Maroney, 399 U.S. 42, 47, 90 S.Ct. 1975, 1979, 26 L.Ed.2d 419 (1970) (warrantless search of car invalid once arrestee has been placed in police custody); Vale v. Louisiana, 399 U.S., at 35, 90 S.Ct., at 1972 (area of immediate control does not extend to inside of house when suspect is arrested on front step); Dyke v. Taylor Implement Mfg. Co., 391 U.S., at 220, 88 S.Ct., at 1474 (search of car after occupant placed in custody and taken to courthouse not valid as incident to arrest); Preston v. United States, 376 U.S., at 368, 84 S.Ct., at 883 (search of car not valid as incident to arrest: although suspects were in car when arrested, they were in custody at police station when car was searched). These cases demonstrate that the crucial question under Chimel is not whether the arrestee could ever have reached the area that was searched, but whether he could have reached it at the time of arrest and search. If not, the officer's failure to obtain a warrant may not be excused.4 By disregarding this settled doctrine, the Court does a great disservice not only to stare decisis, but to the policies underlying the Fourth Amendment as well.
III
39
The Court seeks to justify its departure from the principles underlying Chimel by proclaiming the need for a new "bright-line" rule to guide the officer in the field. As we pointed out in Mincey v. Arizona, 437 U.S., at 393, 98 S.Ct., at 2413, however, "the mere fact that law enforcement may be made more efficient can never by itself justify disregard of the Fourth Amendment." Moreover, the Court's attempt to forge a "bright-line" rule fails on its own terms. While the "interior/trunk" distinction may provide a workable guide in certain routine cases—for example, where the officer arrests the driver of a car and then immediately searches the seats and floor—in the long run, I suspect it will create far more problems than it solves. The Court's new approach leaves open too many questions and, more important, it provides the police and the courts with too few tools with which to find the answers.
40
Thus, although the Court concludes that a warrantless search of a car may take place even though the suspect was arrested outside the car, it does not indicate how long after the suspect's arrest that search may validly be conducted. Would a warrantless search incident to arrest be valid if conducted five minutes after the suspect left his car? Thirty minutes? Three hours? Does it matter whether the suspect is standing in close proximity to the car when the search is conducted? Does it matter whether the police formed probable cause to arrest before or after the suspect left his car? And why is the rule announced today necessarily limited to searches of cars? What if a suspect is seen walking out of a house where the police, peering in from outside, had formed probable cause to believe a crime was being committed? Could the police then arrest that suspect and enter the house to conduct a search incident to arrest? Even assuming today's rule is limited to searches of the "interior" of cars—an assumption not demanded by logic—what is meant by "interior"? Does it include locked glove compartments, the interior of door panels, or the area under the floorboards? Are special rules necessary for station wagons and hatchbacks, where the luggage compartment may be reached through the interior, or taxicabs, where a glass panel might separate the driver's compartment from the rest of the car? Are the only containers that may be searched those that are large enough to be "capable of holding another object"? Or does the new rule apply to any container even if it "could hold neither a weapon nor evidence of the criminal conduct for which the suspect was arrested"? Compare ante, at 460-461, n. 4, with ante, at 461.
41
The Court does not give the police any "bright-line" answers to these questions. More important, because the Court's new rule abandons the justifications underlying Chimel, it offers no guidance to the police officer seeking to work out these answers for himself. As we warned in Chimel: "No consideration relevant to the Fourth Amendment suggests any point of rational limitation, once the search is allowed to go beyond the area from which the person arrested might obtain weapons or evidentiary items." 395 U.S., at 766, 89 S.Ct., at 2041. See also Mincey v. Arizona, supra, at 393, 98 S.Ct., at 2413. By failing to heed this warning, the Court has undermined rather than furthered the goal of consistent law enforcement: it has failed to offer any principles to guide the police and the courts in their application of the new rule to nonroutine situations.
42
The standard announced in Chimel is not nearly as difficult to apply as the Court suggests. To the contrary, I continue to believe that Chimel provides a sound, workable rule for determining the constitutionality of a warrantless search incident to arrest. Under Chimel, searches incident to arrest may be conducted without a warrant only if limited to the person of the arrestee, seeUnited States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), or to the area within the arrestee's "immediate control." While it may be difficult in some cases to measure the exact scope of the arrestee's immediate control, relevant factors would surely include the relative number of police officers and arrestees, the manner of restraint placed on the arrestee, and the ability of the arrestee to gain access to a particular area or container.5 Certainly there will be some close cases, but when in doubt the police can always turn to the rationale underlying Chimel —the need to prevent the arrestee from reaching weapons or contraband—before exercising their judgment. A rule based on that rationale should provide more guidance than the rule announced by the Court today. Moreover, unlike the Court's rule, it would be faithful to the Fourth Amendment.
43
Justice WHITE, with whom Justice MARSHALL joins, dissenting.
44
In Robbins v. California, 453 U.S. 420, 101 S.Ct. 2841, 69 L.Ed.2d 744, it was held that a wrapped container in the trunk of a car could not be searched without a warrant even though the trunk itself could be searched without a warrant because there was probable cause to search the car and even though there was probable cause to search the container as well. This was because of the separate interest in privacy with respect to the container. The Court now holds that as incident to the arrest of the driver or any other person in an automobile, the interior of the car and any container found therein, whether locked or not, may be not only seized but also searched even absent probable cause to believe that contraband or evidence of crime will be found. As to luggage, briefcases, or other containers this seems to me an extreme extension of Chimel and one to which I cannot subscribe. Even if the decision in Robbins had been otherwise and United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), and Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), had been overruled, luggage found in the trunk of a car could not be searched without probable cause to believe it contained contraband or evidence. Here, searches of luggage, briefcases, and other containers in the interior of an auto are authorized in the absence of any suspicion whatsoever that they contain anything in which the police have a legitimate interest. This calls for more caution than the Court today exhibits, and, with respect, I dissent.
1
The state-court cases are in similar disarray. Compare, e. g., Hinkel v. Anchorage, 618 P.2d 1069 (Alaska 1980), with Ulesky v. State, 379 So.2d 121 (Fla.App.1979).
2
The validity of the custodial arrest of Belton has not been questioned in this case. Cf. Gustafson v. Florida, 414 U.S. 260, 266, 94 S.Ct. 488, 492, 38 L.Ed.2d 456 (concurring opinion).
3
Our holding today does no more than determine the meaning of Chimel § principles in this particular and problematic content. It in no way alters the fundamental principles established in the Chimel case regarding the basic scope of searches incident to lawful custodial arrests.
4
"Container" here denotes any object capable of holding another object. It thus includes closed or open glove compartments, consoles, or other receptacles located anywhere within the passenger compartment, as well as luggage, boxes, bags, clothing, and the like. Our holding encompasses only the interior of the passenger compartment of an automobile and does not encompass the trunk.
5
It seems to have been the theory of the Court of Appeals that the search and seizure in the present case could not have been incident to the respondent's arrest, because Trooper Nicot, by the very act of searching the respondent's jacket and seizing the contents of its pocket, had gained "exclusive control" of them. 50 N.Y.2d 447, 451, 429 N.Y.S.2d 574, 576, 407 N.E.2d 420, 422. But under this fallacious theory no search or seizure incident to a lawful custodial arrest would ever be valid; by seizing an article even on the arrestee's person, an officer may be said to have reduced that article to his "exclusive control."
6
Because of this disposition of the case, there is no need here to consider whether the search and seizure were permissible under the so-called "automobile exception." Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419; Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543.
1
As we noted in Go-Bart Importing Co. v. United States, 282 U.S. 344, 357, 51 S.Ct. 153, 158, 75 L.Ed. 374 (1931): "There is no formula for the determination of reasonableness. Each case is to be decided on its own facts and circumstances."
2
" 'Once an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to the arrest.' " Chambers v. Maroney, 399 U.S. 42, 47, 90 S.Ct. 1975, 1979, 26 L.Ed.2d 419 (1970), quoting Preston v. United States, 376 U.S., at 367, 84 S.Ct., at 883.
3
See also 50 N.Y.2d, at 454, n. 2, 429 N.Y.S.2d, at 577, n. 2, 407 N.E.2d, at 423, n. 2; Tr. of Oral Arg. 4-5; App. A-36.
4
" 'We cannot be true to [the Fourth Amendment] and excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation make that course imperative.' " Chimel v. California, 395 U.S., at 761, 87 S.Ct., at 2039, quoting McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 193, 93 L.Ed. 153 (1948).
5
The Court sets up a strawman when it claims that under the "exclusive control" approach taken by the Court of Appeals, "no search or seizure incident to a lawful custodial arrest would ever be valid; by seizing an article even on the arrestee's person, an officer may be said to have reduced that article to his 'exclusive control.' " Ante, at 461-462, n. 5. If a police officer could obtain exclusive control of an article by simply holding it in his hand, I would certainly agree with the Court. But as we recognized in United States v. Chadwick, 433 U.S. 1, 14-15, 97 S.Ct. 2476, 2485, 53 L.Ed.2d 538 (1977), exclusive control means more than that. It means sufficient control such that there is no significant risk that the arrestee or his confederates "might gain possession of a weapon or destructible evidence." Chimel v. California, 395 U.S., at 763, 89 S.Ct., at 2040. The issue of exclusive control presents a question of fact to be decided under the circumstances of each case, just as the New York Court of Appeals has decided it here.
| 01
|
453 U.S. 367
101 S.Ct. 2813
69 L.Ed.2d 706
CBS, INC., Petitioner,v.FEDERAL COMMUNICATIONS COMMISSION et al. AMERICAN BROADCASTING COMPANIES, INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION et al. NATIONAL BROADCASTING COMPANY, INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION et al.
Nos. 80-207, 80-213, and 80-214.
Argued March 3, 1981.
Decided July 1, 1981.
Syllabus
Section 312(a)(7) of the Communications Act of 1934, as added by Title I of the Federal Election Campaign Act of 1971, authorizes the Federal Communications Commission (FCC) to revoke any broadcasting station license "for willful or repeated failure to allow reasonable access to or to permit purchase of reasonable amounts of time for the use of a broadcasting station by a legally qualified candidate for Federal elective office on behalf of his candidacy." On October 11, 1979, the Carter-Mondale Presidential Committee (Committee) requested each of the three major television networks (petitioners) to provide time for a 30-minute program between 8 p. m. and 10:30 p. m. on any day from the 4th through the 7th of December 1979. The Committee intended to present, in conjunction with President Carter's formal announcement of his candidacy, a documentary outlining the record of his administration. The petitioners refused to make the requested time available. CBS emphasized the large number of candidates for the Presidential nominations and the potential disruption of regular programming to accommodate requests for equal treatment, but offered to sell a 5-minute segment at 10:55 p. m. on December 8 and a 5-minute segment in the daytime; American Broadcasting Cos. replied that it had not yet decided when it would begin selling political time for the 1980 Presidential campaign, but later indicated that it would allow such sales in January 1980; and National Broadcasting Co., noting the number of potential requests for time from Presidential candidates, stated that it was not prepared to sell time for political programs as early as December 1979. The Committee then filed a complaint with the FCC, charging that the networks had violated their obligation to provide "reasonable access" under § 312(a)(7). The FCC ruled that the networks had violated the statute, concluding that their reasons for refusing to sell the time requested were "deficient" under the FCC's standards of reasonableness, and directing the networks to indicate by a specified date how they intended to fulfill their statutory obligations. On the networks' petition for review, the Court of Appeals affirmed the FCC's orders, holding that the statute created a new, affirmative right of access to the broadcast media for individual candidates for federal elective office and that the FCC has the authority to independently evaluate whether a campaign has begun for purposes of the statute. The court approved the FCC's insistence that in responding to a candidate's request for time broadcasters must weigh certain factors, including the individual needs of the candidate (as expressed by the candidate); the amount of time previously provided to the candidate; potential disruption of regular programming; the number of other candidates likely to invoke equal opportunity rights if the broadcaster granted the request before it; and the timing of the request. The court determined that the record supported the FCC's conclusion that the networks failed to apply the proper standards and had thus violated the statute's "reasonable access" requirement. The court also rejected petitioners' First Amendment challenge to § 312(a)(7) as applied.
Held:
1. Section 312(a)(7) created an affirmative, promptly enforceable right of reasonable access to the use of broadcast stations for individual candidates seeking federal elective office. It went beyond merely codifying prior FCC policies developed under the public interest standard. Pp. 376-386.
(a) It is clear on the face of the statute that Congress did not prescribe simply a general duty to afford some measure of political programming, which the public interest obligation of broadcasters already provided for. Rather, § 312(a)(7) focuses on the individual "legally qualified candidate" seeking air time to advocate "his candidacy," and guarantees him "reasonable access" enforceable by specific governmental sanction. Further, the sanction may be imposed for either "willful or repeated" failure to afford reasonable access. Pp. 377-379.
(b) The legislative history confirms that § 312(a)(7) created a right of access that enlarged the political broadcasting responsibilities of licensees. Pp. 379-382.
(c) Since the enactment of § 312(a)(7), the FCC has consistently construed the statute as extending beyond the prior public interest policy and as imposing the additional requirement that reasonable access and purchase of reasonable amounts of time be afforded candidates for federal office. This repeated construction of the statute comports with its language and legislative history and has received congressional review, so that departure from that construction is unwarranted. Pp. 382-385.
(d) The qualified observation in Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 113-114, n. 12, 93 S.Ct. 2080, 2091-2092, n. 12, 36 L.Ed.2d 772 relied on by petitioners, that § 312(a)(7) "essentially codified" existing FCC practice was not a conclusion that the statute was in all respects coextensive with that practice and imposed no additional duties on broadcasters. That case did not purport to rule on the precise contours of the responsibilities created by § 312(a)(7) since that issue was not before the Court. Pp. 385-386.
2. Contrary to petitioners' contentions, certain of the FCC's standards to effectuate the guarantees of § 312(a)(7)—which standards evolved principally on a case-by-case basis and are not embodied in formalized rules—do not contravene the statutory objectives or unduly intrude on petitioners' editorial discretion, and the statute was properly applied to petitioners in determining that they had failed to grant the "reasonable access" required by the statute. Pp. 386-394.
(a) The FCC'S practice of independently determining—by examining objective evidence and considering the position of both the candidate and the networks as well as other factors—whether a campaign has begun and the obligations imposed by the statute have attached does not improperly involve the FCC in the electoral process or significantly impair broadcasters' editorial discretion. Nor is the FCC's standard requiring broadcasters to evaluate access requests on an individualized basis improper on the alleged ground that it attaches inordinate significance to candidates' needs, thereby precluding fair assessment of broadcasters' concerns. The FCC mandates careful consideration of, not blind asset to, candidates' desires for air time. Although the standard does proscribe blanket rules concerning access, such as a broadcaster's rule of granting only time spots of a fixed duration to all candidates, the standard is consistent with § 312(a)(7)'s guarantee of reasonable access to individual candidates for federal elective office. The FCC's standards are not arbitrary and capricious, but represent a reasoned attempt to effectuate the statute's access requirement, giving broadcasters room to exercise their discretion but demanding that they act in good faith. Pp. 388-390.
(b) On the basis of prior FCC decisions and interpretations, petitioners had adequate notice that their conduct in responding to the Committee's request for access would contravene the statute. The FCC's conclusion about the status of the campaign accorded with its announced position on the vesting of § 312(a)(7) rights and was adequately supported by the objective factors on which it relied. And under the circumstances here, it cannot be concluded that the FCC abused its discretion in finding that petitioners failed to grant the "reasonable access" required by § 312(a)(7). Pp. 390-394.
3. The right of access to the media under § 312(a)(7), as defined by the FCC and applied here, does not violate the First Amendment rights of broadcasters by unduly circumscribing their editorial discretion, but instead properly balances the First Amendment rights of federal candidates, the public, and broadcasters. Although the broadcasting industry is entitled under the First Amendment to exercise "the widest journalistic freedom consistent with its public [duties]," Columbia Broadcasting System, Inc. v. Democratic National Committee, supra, at 110, 93 S.Ct., at 2090, "[i]t is the right of the viewers and listeners, not the right of the broadcasters, which is paramount." Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390, 89 S.Ct. 1794, 1806, 23 L.Ed.2d 371. Section 312(a)(7), which creates only a limited right of access to the media, makes a significant contribution to freedom of expression by enhancing the ability of candidates to present, and the public to receive, information necessary for the effective operation of the democratic process. Pp. 394-397.
202 U.S.App.D.C. 369, 629 F.2d 1, affirmed.
Argued by Floyd Abrams, New York City, for the petitioners.
Stephen M. Shapiro, Washington, D. C., for the respondents.
Chief Justice BURGER delivered the opinion of the Court.
1
We granted certiorari to consider whether the Federal Communications Commission properly construed 47 U.S.C. § 312(a)(7) and determined that petitioners failed to provide "reasonable access to . . . the use of a broadcasting station" as required by the statute. 449 U.S. 950, 101 S.Ct. 353, 66 L.Ed.2d 213 (1980).
2
* A.
3
On October 11, 1979, Gerald M. Rafshoon, President of the Carter-Mondale Presidential Committee, requested each of the three major television networks to provide time for a 30-minute program between 8 p. m. and 10:30 p. m. on either the 4th, 5th, 6th, or 7th of December 1979.1 The Committee intended to present, in conjunction with president carter's formal announcement of his candidacy, a documentary outlining the record of his administration.
4
The networks declined to make the requested time available. Petitioner CBS emphasized the large number of candidates for the Republican and Democratic Presidential nominations and the potential disruption of regular programming to accommodate requests for equal treatment, but it offered to sell two 5-minute segments to the Committee, one at 10:55 p. m. on December 8 and one in the daytime.2 Petitioner American Broadcasting Cos. replied that it had not yet decided when it would begin selling political time for the 1980 Presidential campaign,3 but subsequently indicated that it would allow such sales in January 1980. App. 58. Petitioner National Broadcasting Co., noting the number of potential requests for time from Presidential candidates, stated that it was not prepared to sell time for political programs as early as December 1979.4
5
On October 29, 1979, the Carter-Mondale Presidential Committee filed a complaint with the Federal Communications Commission, charging that the networks had violatedtheir obligation to provide "reasonable access" under § 312(a)(7) of the Communications Act of 1934, as amended. Title 47 U.S.C. § 312(a)(7), as added to the Act, 86 Stat. 4, states:
6
"The Commission may revoke any station license or
7
construction permit—
8
* * * * *
9
"(7) for willful or repeated failure to allow
10
reasonable access to or to permit purchase of reasonable amounts of time for the use of a broadcasting station by a legally qualified candidate for Federal elective office on behalf of his candidacy."
11
At an open meeting on November 20, 1979, the Commission, by a 4-to-3 vote, ruled that the networks had violated § 312(a)(7). In its memorandum opinion and order, the Commission concluded that the networks' reasons for refusing to sell the time requested were "deficient" under its standards of reasonableness, and directed the networks to indicate by November 26, 1979, how they intended to fulfill their statutory obligations. 74 F.C.C.2d 631.
12
Petitioners sought reconsideration of the FCC's decision. The reconsideration petitions were denied by the same 4-to-3 vote, and, on November 28, 1979, the Commission issued a second memorandum opinion and order clarifying its previous decision. It rejected petitioners' arguments that § 312(a)(7) was not intended to create a new right of access to the broadcast media and that the Commission had improperly substituted its judgment for that of the networks in evaluating the Carter-Mondale Presidential Committee's request for time. November 29, 1979, was set as the date for the networks to file their plans for compliance with the statute. 74 F.C.C.2d 657.
13
The networks, pursuant to 47 U.S.C. § 402, then petitioned for review of the Commission's orders in the United States Court of Appeals for the District of Columbia Circuit. Thecourt allowed the Committee and the National Association of broadcasters to intervene, and granted a stay of the Commission's orders pending review.
14
Following the seizure of American Embassy personnel in Iran, the Carter-Mondale Presidential Committee decided to postpone to early January 1980 the 30-minute program it had planned to broadcast during the period of December 4-7, 1979. However, believing that some time was needed in conjunction with the President's announcement of his candidacy, the Committee sought and subsequently obtained from CBS the purchase of five minutes of time on December 4. In addition, the Committee sought and obtained from ABC and NBC offers of time for a 30-minute program in January, and the ABC offer eventually was accepted. Throughout these negotiations, the Committee and the networks reserved all rights relating to the appeal.
B
15
The Court of Appeals affirmed the Commission's orders, 302 U.S.App.D.C. 369, 629 F.2d 1 (1980), holding that the statute created a new, affirmative right of access to the broadcast media for individual candidates for federal elective office. As to the implementation of § 312(a)(7), the court concluded that the Commission has the authority to independently evaluate whether a campaign has begun for purposes of the statute, and approved the Commission's insistence that "broadcasters consider and address all non-frivolous matters in responding to a candidate's request for time." Id., at 386, 629 F.2d, at 18. For example, a broadcaster must weigh such factors as: "(a) the individual needs of the candidate (as expressed by the candidate); (b) the amount of time previously provided to the candidate; (c) potential disruption of regular programming; (d) the number of other candidates likely to invoke equal opportunity rights if the broadcaster grants the request before him; and, (e) the timing of the request." Id., at 387, 629 F.2d, at 19. And in reviewing a broadcaster's decision, the Commission will confine itself to two questions: "(1) has the broadcaster adverted to the proper standards in deciding whether to grant a request for access, and (2) is the broadcaster's explanation for his decision reasonable in terms of those standards?" Id., at 386, 629 F.2d, at 18.
16
Applying these principles, the Court of Appeals sustained the Commission's determination that the Presidential campaign had begun by November 1979, and, accordingly, the obligations imposed by § 312(a)(7) had attached. Further, the court decided that "the record . . . adequately supports the Commission's conclusion that the networks failed to apply the proper standards." Id., at 389, 629 F.2d, at 21. In particular, the "across-the-board" policies of all three networks failed to address the specific needs asserted by the Carter-Mondale Presidential Committee. Id., at 390, 629 F.2d, at 22. From this the court concluded that the Commission was correct in holding that the networks had violated the statute's "reasonable access" requirement.
17
Finally, the Court of Appeals rejected petitioners' First Amendment challenge to § 312(a)(7) as applied, reasoning that the statute as construed by the Commission "is a constitutionally acceptable accommodation between, on the one hand, the public's right to be informed about elections and the right of candidates to speak and, on the other hand, the editorial rights of broadcasters." Id., at 389, 629 F.2d, at 25. In a concurring opinion adopted by the majority, id., at 389, n. 117, 629 F.2d, at 25, n. 117, Judge Tamm expressed the view that § 312(a)(7) is saved from constitutional infirmity "as long as the [Commission] . . . maintains a very limited 'overseer' role consistent with its obligation of careful neutrality . . . ." Id., at 402, 629 F.2d, at 34.
II
18
We consider first the scope of § 312(a)(7). Petitioners CBS and NBC contend that the statute did not impose any additional obligations on broadcasters, but merely codified prior policies developed by the Federal Communications Commission under the public interest standard. The Commission, however, argues that § 312(a)(7) created an affirmative, promptly enforceable right of reasonable access to the use of broadcast stations for individual candidates seeking federal elective office.
A.
19
The Federal Election Campaign Act of 1971, which Congress enacted in 1972, included as one of its four Titles the Campaign Communications Reform Act (Title I). Title I contained the provision that was codified as 47 U.S.C. § 312(a)(7).5
20
We have often observed that the starting point in every case involving statutory construction is "the language employed by Congress." Reiter v. Sonotone Corp., 442 U.S. 330, 337, 99 S.Ct. 2326, 2330, 60 L.Ed.2d 931 (1979). In unambiguous language, § 312(a)(7) authorizes the Commission to revoke a broadcaster's license
21
"for willful or repeated failure to allow reasonable access to or to permit purchase of reasonable amounts of time for the use of a broadcasting station by a legally qualified candidate for Federal elective office on behalf of his candidacy."
22
It is clear on the face of the statute that Congress did not prescribe merely a general duty to afford some measure of political programming, which the public interest obligation of broadcasters already provided for. Rather, § 312(a)(7) focuses on the individual "legally qualified candidate" seeking air time to advocate "his candidacy," and guarantees him "reasonable access" enforceable by specific governmental sanction. Further, the sanction may be imposed for "willful or repeated" failure to afford reasonable access. This suggests that, if a legally qualified candidate for federal office is denied a reasonable amount of broadcast time, license revocation may follow even a single instance of such denial so long as it is willful; where the denial is recurring, the penalty may be imposed in the absence of a showing of willfulness.
23
The command of § 312(a)(7) differs from the limited duty of broadcasters under the public interest standard. The practice preceding the adoption of § 312(a)(7) has been described by the Commission as follows:
24
"Prior to the enactment of the [statute], we recognized political broadcasting as one of the fourteen basic elements necessary to meet the public interest, needs and desires of the community. No legally qualified candidate had, at that time, a specific right of access to a broadcasting station. However, stations were required to make reasonable, good faith judgments about the importance and interest of particular races. Based upon those judgments, licensees were to 'determine how much time should be made available for candidates in each race on either a paid or unpaid basis.' There was no requirement that such time be made available for specific 'uses' of a broadcasting station to which Section 315 'equal opportunities' would be applicable." (Footnotes omitted.) Report and Order: Commission Policy in Enforcing Section 312(a)(7) of the Communications Act, 68 F.C.C.2d 1079, 1087-1088 (1978) (1978 Report and Order).
25
Under the pre-1971 public interest requirement, compliance with which was necessary to assure license renewal, some time had to be given to political issues, but an individual candidate could claim no personal right of access unless his opponent used the station and no distinction was drawn between federal, state, and local elections.6 See Farmers Educational & Cooperative Union v. WDAY, Inc., 360 U.S. 525, 534, 79 S.Ct. 1302, 1307-1308, 3 L.Ed.2d 1407 (1959). By its terms, however, § 312(a)(7) singles out legally qualified candidates for federal elective office and grants them a special right of access on an individual basis, violation of which carries the serious consequence of license revocation. The conclusion is inescapable that the statute did more than simply codify the pre-existing public interest standard.
B
26
The legislative history confirms that § 312(a)(7) created a right of access that enlarged the political broadcasting responsibilities of licensees. When the subject of campaign reform was taken up by Congress in 1971, three bills were introduced in the Senate—S. 1, S. 382, and S. 956. All three measures, while differing in approach, were "intended to increase a candidate's accessibility to the media and to reduce the level of spending for its use." Federal Election Campaign Act of 1971: Hearings on S. 1, S. 382, and S. 956 before the Subcommittee on Communications of the Senate Committee on Commerce, 92d Cong., 1st Sess., 2 (1971) (remarks of Sen. Pastore). The subsequent Report of the Senate Commerce Committee stated that one of the primary purposes of the Federal Election Campaign Act of 1971 was to "give candidates for public office greater access to the media so that they may better explain their stand on the issues, and thereby more fully and completely inform the voters." S.Rep. No. 92-96, p. 20 (1971) U.S.Code Cong. & Admin.News 1972, pp. 1773, 1774 (emphasis added). The Report contained neither an explicit interpretation of the provision that became § 312(a)(7) nor a discussion of its intended impact, but simply noted:
27
"[The amendment] provide[s] that willful or repeated failure by a broadcast licensee to allow reasonable access to or to permit purchase of reasonable amounts of time for the use of his station's facilities by a lagally [sic] qualified candidate for Federal elective office on behalf of his candidacy shall be grounds for adverse action by the FCC.
28
"The duty of broadcast licensees generally to permit the use of their facilities by legally qualified candidates for these public offices is inherent in the requirement that licensees serve the needs and interests of the [communities] of license. The Federal Communications Commission has recognized this obligation . . . ." Id. at 34, U.S.Code Cong. & Admin.News 1972, p. 1787.
29
While acknowledging the "general" public interest requirement, the Report treated it separately from the specific obligation prescribed by the proposed legislation. See also id., at 28.
30
As initially reported in the Senate, § 312(a)(7) applied broadly to "the use of a broadcasting station by any person who is a legally qualified candidate on behalf of his candidacy." Id., at 3. The Conference Committee confined the provision to candidates seeking federal elective office. S.Conf.Rep. No. 92-580, p. 22 (1971); H.Conf.Rep. No. 92-752, p. 22 (1971). During floor debate on the Conference Report in the House attention was called to the substantial impact § 312(a)(7) would have on the broadcasting industry:
31
"[B]roadcasters [are required] to permit any legally qualified candidate [for federal office] to purchase a 'reasonable amount of time' for his campaign advertising. Any broadcaster found in willful or repeated violation of this requirement could lose his license and be thrown out of business, his total record of public service notwithstanding.
32
* * * * *
33
"[U]nder this provision, a broadcaster, whose license is obtained and retained on basis of performance in the public interest, may be charged with being unreasonable and, therefore, fall subject to revocation of his license." 118 Cong.Rec. 326 (1972) (remarks of Rep. Keith).
34
Such emphasis on the thrust of the statute would seem unnecessary if it did nothing more than reiterate the public interest standard.
35
Perhaps the most telling evidence of congressional intent, however, is the contemporaneous amendment of § 315(a) of the Communications Act.7 That amendment was described by the Conference Committee as a "conforming amendment" necessitated by the enactment of § 312(a)(7). S.Conf.Rep. No. 92-580, supra, at 22; H.Conf.Rep. No. 92-752, supra, at 22. Prior to the "conforming amendment," the second sentence of 47 U.S.C. § 315(a) (1970 ed.) read: "No obligation is imposed upon any licensee to allow the use of its station by any such candidate." This language made clear that broadcasters were not common carriers as to affirmative, rather than responsive, requests for access. As a result of the amendment, the second sentence now contains an important qualification: "No obligation is imposed under this subsection upon any licensee to allow the use of its station by any such candidate." 47 U.S.C. § 315(a) (emphasis added). Congress retreated from its statement that "no obligation" exists to afford individual access presumably because § 312(a)(7) compels such access in the context of federal elections. If § 312(a)(7) simply reaffirmed the pre-existing public interest requirement with the added sanction of license revocation, no conforming amendment to § 315(a) would have been needed.
36
Thus, the legislative history supports the plain meaning of the statute that individual candidates for federal elective office have a right of reasonable access to the use of stations for paid political broadcasts on behalf of their candidacies,8 without reference to whether an opponent has secured time.
C
37
We have held that "the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong, especially when Congress has refused to alter the administrative construction." Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 1801-1802, 23 L.Ed.2d 371 (1969) (footnotes omitted). Accord, Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 121, 93 S.Ct. 2080, 2095-2096, 36 L.Ed.2d 772 (1973). Such deference "is particularly appropriate where, as here, an agency's interpretation involves issues of considerable public controversy, and Congress has not acted to correct any misperception of its statutory objectives." United States v. Rutherford, 442 U.S. 544, 554, 99 S.Ct. 2470, 2476, 61 L.Ed.2d 68 (1979).
38
Since the enactment of § 312(a)(7), the Commission has consistently construed the statute as extending beyond the prior public interest policy. In 1972, the Commission made clear that § 312(a)(7) "now imposes on the overall obligation to operate in the public interest the additional specific requirement that reasonable access and purchase of reasonable amounts of time be afforded candidates for Federal office." Use of Broadcast and Cablecast Facilities by Candidates for Public Office, 34 F.C.C.2d 510, 537-538 (1972) (1972 Policy Statement) (emphasis added). Accord, Public Notice Concerning Licensee Responsibility Under Amendments to the Communications Act Made by the Federal Election Campaign Act of 1971, 47 F.C.C.2d 516 (1974). In its 1978 Report and Order, the Commission stated:
39
"When Congress enacted Section 312(a)(7), it imposed an additional obligation on the general mandate to operate in the public interest. Licensees were specifically required to afford reasonable access to or to permit the purchase of reasonable amounts of broadcast time for the 'use' of Federal candidates.
40
"We see no merit to the contention that Section 312(a)(7) was meant merely as a codification of the Commission's already existing policy concerning political broadcasts. There was no reason to commit that policy to statute since it was already being enforced by the Commission. . . ." 68 F.C.C.2d, at 1088.
41
See also 1978 Primer, 69 F.C.C.2d, at 2286-2289. The Commission has adhered to this view of the statute in its rulings on individual inquiries and complaints. See, e. g., The Labor Party, 67 F.C.C.2d 589, 590 (1978); Ken Bauder, 62 F.C.C.2d 849 (Broadcast Bureau 1976); Don C. Smith, 49 F.C.C.2d 678, 679 (Broadcast Bureau 1974); Summa Corp., 43 F.C.C.2d 602, 603-605 (1973); Robert H. Hauslein, 39 F.C.C.2d 1064, 1065 (Broadcast Bureau 1973).
42
Congress has been made aware of the Commission's interpretation of § 312(a)(7). In 1973, hearings were conducted to review the operation of the Federal Election Campaign Act of 1971. Federal Election Campaign Act of 1973: Hearings on S. 372 before the Subcommittee on Communications of the Senate Committee on Commerce, 93d Cong., 1st Sess. (1973). Commission Chairman Dean Burch testified regarding the agency's experience with § 312(a)(7). Id., at 136-137. He noted that the Commission's 1972 Policy Statement was "widely distributed and represented our best judgment as to the requirements of the law and the intent of Congress." Id., at 135. Chairman Burch discussed some of the difficult questions implicit in determining whether a station has afforded "reasonable access" to a candidate for federal office, and in conclusion stated: "We have brought our approach to these problems in the form of the 1972 Public Notice to the attention of Congress. If we have erred in some important construction, we would, of course, welcome congressional guidance." Id., at 137. Senator Pastore, Chairman of the Communications Subcommittee, replied:
43
"We didn't draw the provision any differently than we did because when you begin to legislate on guidelines, and on standards, and on criteria, you know what you run up against. I think what we did was reasonable enough, and I think what you did was reasonable enough as well.
44
* * * * *
45
"I would suppose that in cases of that kind, you would get some complaints. But, frankly, I think it has worked out pretty well." Id., at 137-138.
46
The issue was joined when CBS Vice Chairman Frank Stanton also testified at the hearings and objected to the fact that § 312(a)(7) "grants rights to all legally qualified candidates for Federal office . . . ." Id., at 190. He strongly urged "repeal" of the statute, but his plea was unsuccessful. Ibid.9
47
The Commission's repeated construction of § 312(a)(7) as affording an affirmative right of reasonable access to individual candidates for federal elective office comports with the statute's language and legislative history and has received congressional review. Therefore, departure from that construction is unwarranted. "Congress' failure to repeal or revise [the statute] in the face of such administrative interpretation [is] persuasive evidence that that interpretation is the one intended by Congress." Zemel v. Rusk, 381 U.S. 1, 11, 85 S.Ct. 1271, 1278, 14 L.Ed.2d 179 (1965).
D
48
In support of their narrow reading of § 312(a)(7) as simply a restatement of the public interest obligation, petitioners cite our decision in Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 93 S.Ct. 2080, 36 L.Ed.2d 772 (1973), which held that neither the First Amendment nor the Communications Act requires broadcasters to accept paid editorial advertisements from citizens at large. The Court in Democratic National Committee observed that "the Commission on several occasions has ruled that no private individual or group has a right to command the use of broadcast facilities," and that Congress has not altered that policy even though it has amended the Communications Act several times. Id., at 113, 93 S.Ct., at 2091. In a footnote, on which petitioners here rely, we referred to the then recently enacted § 312(a)(7) as one such amendment, stating that it had "essentially codified the Commission's prior interpretation of § 315(a) as requiring broadcasters to make time available to political candidates." Id., at 113-114, n. 12, 93 S.Ct., at 2091-2092, n. 12.
49
However, "the language of an opinion is not always to be parsed as though we were dealing with language of a statute." Reiter v. Sonotone Corp., 442 U.S., at 341, 99 S.Ct., at 2332. The qualified observation that § 312(a)(7) "essentially codified" existing Commission practice was not a conclusion that the statute was in all respects coextensive with that practice and imposed no additional duties on broadcasters. In Democratic National Committee, we did not purport to rule on the precise contours of the responsibilities created by § 312(a)(7) since that issue was not before us. Like the general public interest standard and the equal opportunities provision of § 315(a), § 312(a)(7) reflects the importance attached to the use of the public airwaves by political candidates. Yet we now hold that § 312(a)(7) expanded on those predecessor requirements and granted a new right of access to persons seeking election to federal office.10
III
A.
50
Although Congress provided in § 312(a)(7) for greater use of broadcasting stations by federal candidates, it did not give guidance on how the Commission should implement the statute's access requirement. Essentially, Congress adopted a "rule of reason" and charged the Commission with its enforcement. Pursuant to 47 U.S.C. § 303(r), which empowers the Commission to "[m]ake such rules and regulations and prescribe such restrictions and conditions, not inconsistent with law, as may be necessary to carry out the provisions of [the Communications Act]," the agency has developed standards to effectuate the guarantees of § 312(a)(7). See also 47 U.S.C. § 154(i). The Commission has issued some general interpretative statements, but its standards implementing § 312(a)(7) have evolved principally on a case-by-case basis and are not embodied in formalized rules. The relevant criteria broadcasters must employ in evaluating access requests under the statute can be summarized from the Commission's 1978 Report and Order and the memorandum opinions and orders in these cases.
51
Broadcasters are free to deny the sale of air time prior to the commencement of a campaign, but once a campaign has begun, they must give reasonable and good-faith attention to access requests from "legally qualified" candidates11 for federal elective office. Such requests must be considered on an individualized basis, and broadcasters are required to tailor their responses to accommodate, as much as reasonably possible, a candidate's stated purposes in seeking air time. In responding to access requests, however, broadcasters may also give weight to such factors as the amount of time previously sold to the candidate, the disruptive impact on regular programming, and the likelihood of requests for time by rival candidates under the equal opportunities provision of § 315(a). These considerations may not be invoked as pretexts for denying access; to justify a negative response, broadcasters must cite a realistic danger of substantial program disruption—perhaps caused by insufficient notice to allow adjustments in the schedule—or of an excessive number of equal time requests. Further, in order to facilitate review by the Commission, broadcasters must explain their reasons for refusing time or making a more limited counteroffer. If broadcasters take the appropriate factors into account and act reasonably and in good faith, their decisions will be entitled to deference even if the Commission's analysis would have differed in the first instance. But if broadcasters adopt "across-the-board policies" and do not attempt to respond to the individualized situation of a particular candidate, the Commission is not compelled to sustain their denial of access. See 74 F.C.C.2d at 665-674; 74 F.C.C.2d, at 642-651; 1978 Report and Order, 68 F.C.C.2d, at 1089-1092, 1094. Petitioners argue that certain of these standards are contrary to the statutory objectives of § 312(a)(7).
52
(1)
53
The Commission has concluded that, as a threshold matter, it will independently determine whether a campaign has begun and the obligations imposed by § 312(a)(7) have attached. 74 F.C.C.2d, at 665-666. Petitioners assert that, in undertaking such a task, the Commission becomes improperly involved in the electoral process and seriously impairs broadcaster discretion.
54
However, petitioners fail to recognize that the Commission does not set the starting date for a campaign. Rather, on review of a complaint alleging denial of "reasonable access," it examines objective evidence to find whether the campaign has already commenced, "taking into account the position of the candidate and the networks as well as other factors." Id., at 665 (emphasis added). As the Court of Appeals noted, the "determination of when the statutory obligations attach does not control the electoral process, . . . the determination is controlled by the process." 202 U.S.App.D.C., at 384, 629 F.2d, at 16. Such a decision is not, and cannot be, purely one of editorial judgment.
55
Moreover, the Commission's approach serves to narrow § 312(a)(7), which might be read as vesting access rights in an individual candidate as soon as he becomes "legally qualified" without regard to the status of the campaign. See n. 11, supra. By confining the applicability of the statute to the period after a campaign commences, the Commission has limited its impact on broadcasters and given substance to its command of reasonable access.
(2)
56
Petitioners also challenge the Commission's requirement that broadcasters evaluate and respond to access requests on an individualized basis. In petitioners' view, the agency has attached inordinate significance to candidates' needs, thereby precluding fair assessment of broadcasters' concerns and prohibiting the adoption of uniform policies regarding requests for access.
57
While admonishing broadcasters not to " 'second guess' the 'political' wisdom or . . . effectiveness" of the particular format sought by a candidate, the Commission has clearly acknowledged that "the candidate's . . . request is by no means conclusive of the question of how much time, if any, is appropriate. Other . . . factors, such as the disruption or displacement of regular programming (particularly as affected by a reasonable probability of requests by other candidates), must be considered in the balance." 74 F.C.C.2d, at 667-668. Thus, the Commission mandates careful consideration of, not blind assent to, candidates' desires for air time.
58
Petitioners are correct that the Commission's standards proscribe blanket rules concerning access; each request must be examined on its own merits. While the adoption of uniform policies might well prove more convenient for broadcasters, such an approach would allow personal campaign strategies and the exigencies of the political process to be ignored. A broadcaster's "evenhanded" response of granting only time spots of a fixed duration to candidates may be "unreasonable" where a particular candidate desires less time for an advertisement or a longer format to discuss substantive issues. In essence, petitioners seek the unilateral right to determine in advance how much time to afford all candidates. Yet § 312(a)(7) assures a right of reasonable access to individual candidates for federal elective office, and the Commission's requirement that their requests be considered on an individualized basis is consistent with that guarantee.
(3)
59
The Federal Communications Commission is the experienced administrative agency long entrusted by Congress with the regulation of broadcasting, and the Commission is responsible for implementing and enforcing § 312(a)(7) of the Communications Act. Accordingly, its construction of the statute is entitled to judicial deference "unless there are compelling indications that it is wrong." Red Lion Broadcasting Co. v. FCC, 395 U.S., at 381, 89 S.Ct., at 1802. As we held in Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S., at 120, 93 S.Ct., at 2095, the Commission must be allowed to "remain in a posture of flexibility to chart a workable 'middle course' in its quest to preserve a balance between the essential public accountability and the desired private control of the media." Like the Court of Appeals, we cannot say that the Commission's standards are arbitrary and capricious or at odds with the language and purposes of § 312(a)(7). See 5 U.S.C. § 706(2)(A). Indeed, we are satisfied that the Commission's action represents a reasoned attempt to effectuate the statute's access requirement, giving broadcasters room to exercise their discretion but demanding that they act in good faith.12
B
60
There can be no doubt that the Commission's standards have achieved greater clarity as a result of the orders in these cases.13 However laudable that may be, it raises the question whether § 312(a)(7) was properly applied to petitioners.14 Based upon the Commission's prior decisions and 1978 Report and Order, however, we must conclude that petitioners had adequate notice that their conduct in responding to the Carter-Mondale Presidential Committee's request for access would contravene the statute.
61
In the 1978 Report and Order, the Commission stated that it could not establish a precise point at which § 312(a)(7) obligations would attach for all campaigns because each is unique:
62
"For instance, a presidential campaign may be in full swing almost a year before an election; other campaigns may be limited to a short concentrated period...[W]e believe that, generally, a licensee would be unreasonable if it refused to afford access to Federal candidates at least during those time periods [when the 'lowest unit charge' provision of § 315 applied]. Moreover, it may be required to afford reasonable access before these periods; however, the determination of whether 'reasonable access' must be afforded before these periods for particular races must be made in each case under all the facts and circumstances present...
63
[W]e expect licensees to afford access at a reasonable time prior to a convention or caucus. We will review a licensee's decisions in this area on a case-by-case basis." 68 F.C.C.2d, at 1091-1092 (emphasis added).
64
In Anthony R. Martin-Trigona, 67 F.C.C.2d 743 (1978), the Commission observed: "[T]he licensee, and ultimately the Commission, must look to the circumstances of each particular case to determine when it is reasonable for a candidate's access to begin . . . ." Id., at 746, n. 4 (emphasis added). Further, the 1978 Report and Order made clear that "Federal candidates are the intended beneficiary of Section 312(a)(7) and therefore a candidate's desires as to the method of conducting his or her media campaign should be considered by licensees in granting reasonable access." 68 F.C.C.2d, at 1089, n. 14. The agency also stated:
65
"[A]n arbitrary 'blanket' ban on the use by a candidate of a particular class or length of time in a particular period cannot be considered reasonable. A Federal candidate's decisions as to the best method of pursuing his or her media campaign should be honored as much as possible under the 'reasonable' limits imposed by the licensee." Id., at 1090.
66
Here, the Carter-Mondale Presidential Committee sought broadcast time approximately 11 months before the 1980 Presidential election and 8 months before the Democratic National Convention. In determining that a national campaign was underway at that point, the Commission stressed: (a) that 10 candidates formally had announced their intention to seek the Republican nomination, and 2 candidates had done so for the Democratic nomination; (b) that various states had started the delegate selection process; (c) that candidates were traveling across the country making speeches and attempting to raise funds; (d) that national campaign organizations were established and operating; (e) that the Iowa caucus would be held the following month; (f) that public officials and private groups were making endorsements; and (g) that the national print media had given campaign activities prominent coverage for almost two months. 74 F.C.C.2d, at 645-647. The Commission's conclusion about the status of the campaign accorded with its announced position on the vesting of § 312(a)(7) rights and was adequately supported by the objective factors on which it relied.
67
Nevertheless, petitioners ABC and NBC refused to sell the Carter-Mondale Presidential Committee any time in December 1979 on the ground that it was "too early in the political season." App. 41-43, 52-74; nn. 3 and 4, supra. These petitioners made no counteroffers, but adopted "blanket" policies refusing access despite the admonition against such an approach in the 1978 Report and Order. Cf. Donald W. Riegle, 59 F.C.C.2d 1314 (1976); WALB-TV, Inc., 59 F.C.C.2d 1246 (1976). Likewise, petitioner CBS, while not barring access completely, had an across-the-board policy of selling only 5-minute spots to all candidates, notwithstanding the Commission's directive in the 1978 Report and Order that broadcasters consider "a candidate's desires as to the method of conducting his or her media campaign." 68 F.C.C.2d, at 1089, n. 14. See App. 44-45, 75-93; n. 2, supra. Petitioner CBS responded with its standard offer of separate 5-minute segments, even though the Carter-Mondale Presidential Committee sought 30 minutes of air time to present a comprehensive statement launching President Carter's re-election campaign. Moreover, the Committee's request was made almost two months before the intended date of broadcast, was flexible in that it could be satisfied with any prime time slot during a 4-day period, was accompanied by an offer to pay the normal commercial rate, and was not preceded by other requests from President Carter for access. See App. 27-40; n. 1, supra. Although petitioners adverted to the disruption of regular programming and the potential equal time requests from rival candidates in their responses to the Carter-Mondale Presidential Committee's complaint, the Commission rejected these claims as "speculative and unsubstantiated at best." 74 F.C.C.2d, at 674.
68
Under these circumstances, we cannot conclude that the Commission abused its discretion in finding that petitioners failed to grant the "reasonable access" required by § 312(a)(7).15 See 5 U.S.C. § 706(2)(A). "[T]he fact that we might not have made the same determination on the same facts does not warrant a substitution of judicial for administrative discretion since Congress has confided the problem to the latter." FCC v. WOKO, Inc., 329 U.S. 223, 229, 67 S.Ct. 213, 216, 91 L.Ed. 204 (1946). "[C]ourts should not overrule an administrative decision merely because they disagree with its wisdom." Radio Corp. of America v. United States, 341 U.S. 412, 420, 71 S.Ct. 806, 810, 95 L.Ed. 1062 (1951).
IV
69
Finally, petitioners assert that § 312(a)(7) as implemented by the Commission violates the First Amendment rights of broadcasters by unduly circumscribing their editorial discretion. In Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S., at 117, 93 S.Ct., at 2094, we stated:
70
"Th[e] role of the Government as an 'overseer' and ultimate arbiter and guardian of the public interest and the role of the licensee as a journalistic 'free agent' call for a delicate balancing of competing interests. The maintenance of this balance for more than 40 years has called on both the regulators and the licensees to walk a 'tightrope' to preserve the First Amendment values written into the Radio Act and its successor, the Communications Act."
71
Petitioners argue that the Commission's interpretation of § 312(a)(7)'s access requirement disrupts the "delicate balanc[e]" that broadcast regulation must achieve. We disagree.
72
A licensed broadcaster is "granted the free and exclusive use of a limited and valuable part of the public domain; when he accepts that franchise it is burdened by enforceable public obligations." Office of Communication of the United Church of Christ v. FCC, 123 U.S.App.D.C. 328, 337, 359 F.2d 994, 1003 (1966). This Court has noted the limits on a broadcast license:
73
"A license permits broadcasting, but the licensee has no constitutional right to be the one who holds the license or to monopolize a . . . frequency to the exclusion of his fellow citizens. There is nothing in the First Amendment which prevents the Government from requiring a licensee to share his frequency with others . . . ." Red Lion Broadcasting Co. v. FCC, 395 U.S., at 389, 89 S.Ct., at 1806.
74
See also FCC v. National Citizens Comm. for Broadcasting, 436 U.S. 775, 799-800, 98 S.Ct. 2096, 2114, 56 L.Ed.2d 697 (1978). Although the broadcasting industry is entitled under the First Amendment to exercise "the widest journalistic freedom consistent with its public [duties]," Columbia Broadcasting System, Inc. v. Democratic National Committee, supra, 412 U.S., at 110, 93 S.Ct., at 2090, the Court has made clear that:
75
"It is the right of the viewers and listeners, not the right of the broadcasters which is paramount. It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market . . . . It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experience which is crucial here." Red Lion Broadcasting Co. v. FCC, supra, 395 U.S., at 390, 89 S.Ct., at 1806 (citations omitted) (emphasis added).
76
The First Amendment interests of candidates and voters, as well as broadcasters, are implicated by § 312(a)(7). We have recognized that "it is of particular importance that candidates have the . . . 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." Buckley v. Valeo, 424 U.S. 1, 52-53, 96 S.Ct. 612, 651, 46 L.Ed.2d 659 (1976). Indeed, "speech concerning public affairs is . . . the essence of self-government," Garrison v. Louisiana, 379 U.S. 64, 74-75, 85 S.Ct. 209, 215-216, 13 L.Ed.2d 125 (1964). 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). Section 312(a)(7) thus makes a significant contribution to freedom of expression by enhancing the ability of candidates to present, and the public to receive, information necessary for the effective operation of the democratic process.
77
Petitioners are correct that the Court has never approved a general right of access to the media. See, e. g., FCC v. Midwest Video Corp., 440 U.S. 689, 99 S.Ct. 1435, 59 L.Ed.2d 692 (1979); Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974); Columbia Broadcasting System, Inc. v. Democratic National Committee, supra. Nor do we do so today. Section 312(a)(7) creates a limited right to "reasonable" access that pertains only to legally qualified federal candidates and may be invoked by them only for the purpose of advancing their candidacies once a campaign has commenced. The Commission has stated that, in enforcing the statute, it will "provide leeway to broadcasters and not merely attempt de novo to determine the reasonableness of their judgments . . . ." 74 F.C.C.2d, at 672. If broadcasters have considered the relevant factors in good faith, the Commission will uphold their decisions. See 202 U.S.App.D.C., at 393, 629 F.2d, at 25. Further, § 312(a)(7) impair the discretion of broadcasters to present their views on any issue or to carry any particular type of programming.
78
Section 312(a)(7) represents an effort by Congress to assure that an important resource—the airwaves—will be used in the public interest. We hold that the statutory right of access, as defined by the Commission and applied in these cases, properly balances the First Amendment rights of federal candidates, the public, and broadcasters.
The judgment of the Court of Appeals is
79
Affirmed.
80
Justice WHITE, with whom Justice REHNQUIST and Justice STEVENS join, dissenting.
81
The Court's opinion is disarmingly simple and seemingly straightforward: in 1972, Congress created a right of reasonable access for candidates for federal office; the Federal Communications Commission, charged with enforcing the statute, has defined that right; as long as the agency's action is within the zone of reasonableness, it should be accepted even though a court would have preferred a different course. This approach, however, conceals the fundamental issue in these cases, which is whether Congress intended not only to create a right of reasonable access but also to negate the longstanding statutory policy of deferring to editorial judgments that are not destructive of the goals of the Act. In these cases, such a policy would require acceptance of network or station decisions on access as long as they are within the range of reasonableness, even if the Commission would have preferred different responses by the networks. It is demonstrable that Congress did not intend to set aside this traditional policy, and the Commission seriously misconstrued the statute when it assumed that it had been given authority to insist on its own views as to reasonable access even though this entailed rejection of media judgments representing different but nevertheless reasonable reactions to access requests. As this litigation demonstrates, the result is an administratively created right of access which, in light of the pre-existing statutory policies concerning access, is far broader than Congress could have intended to allow. The Court unfortunately accepts this major departure from the underlying themes of the Communications Act and from the cases that have construed that statute. With all due respect, I dissent.
82
Section 312(a)(7) provides that the Commission may revoke a broadcast license "for willful or repeated failure to allow reasonable access to or to permit purchase of reasonable amounts of time for the use of a broadcasting station by a legally qualified candidate for Federal elective office on behalf of his candidacy." It is untenable to suggest that the right of access the Commission has created is required or even suggested by the plain language of this section. What is "reasonable" access and what are "reasonable" amounts of time that must be sold are matters about which fair minds could easily differ. The Commission recognized as much in this litigation: "The statutory language," it said, "does not expressly define the scope of the Commission's responsibilities or the procedures by which it should enforce them." 74 F.C.C.2d 631, 637. Furthermore, the Commission thought "[t]he legislative history of Section 312(a)(7) does little to clarify those responsibilities and procedures." Ibid. It also found the floor debates to be "equally uninstructive." Ibid. It then announced that "[i]n the absence of further direction, we must also assume that Congress wanted to delegate to the Commission broad responsibility to define and implement the scope of Section 312(a)(7)'s rights and duties." Id., at 638. Having conferred carte blanche on themselves, four of the seven members of the Commission proceeded to produce some 48 printed pages of guidelines, proscriptions, prescriptions, permissions, instructions on balancing, clarifications, summaries, conclusions, and orders, all purporting to define the "reasonable" access that broadcasters must provide federal candidates for office and to explain why the networks' offers of access were not reasonable under the circumstances. The Commission issued an initial opinion covering 24 pages but felt compelled to write 24 more pages on reconsideration, purporting to clarify and explain what it had meant in the first place. I think the Commission fell into serious error and that its action was arbitrary, capricious, an abuse of discretion, and otherwise contrary to law. 5 U.S.C. § 706(2)(A). At the very least, its decision represents "a clear error of judgment." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971). I regret particularly that the Court of Appeals and this Court have compounded the error by suggesting that the Commission understood its task and competently performed it in an understandable manner. There are several reasons for my position.
83
1. The Commission seemed to approach this case as though Congress were legislating on a clean slate, without regard for other provisions of the Act and the manner in which those provisions had been construed and applied to avoid undue intrusions upon the editorial judgment of broadcasters and without regard for the long-standing statutory policies about access, including the recognized duty imposed on broadcasters to serve the public interest by keeping the citizenry reasonably informed about political candidates.
84
The history of the Federal Government's regulation of the broadcast media has been recounted by this Court on several occasions. See Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 103-110, 93 S.Ct. 2080, 2087-2090, 36 L.Ed.2d 772 (1973); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 375-386, 89 S.Ct. 1794, 1798-1804, 23 L.Ed.2d 371 (1969). That history evinces Congress' efforts to deal with the inevitable tension between the need to allocate scarce frequencies and the importance of giving licensees broad discretion in exercising editorial judgment in the use of those frequencies. These efforts have led to the creation of a general requirement that broadcast licensees operate in the public interest but that they be given considerable leeway in the fulfillment of that duty. As the Court stated in Columbia Broadcasting System, Inc. v. Democratic National Committee, supra, 412 U.S., at 110, 93 S.Ct., at 2090: "Congress intended to permit private broadcasting to develop with the widest journalistic freedom consistent with its public obligation. Only when the interests of the public are found to outweigh the private journalistic interests of the broadcasters will government power be asserted within the framework of the Act." In particular, Congress has explicitly provided that broadcast licensees are not common carriers, 47 U.S.C. § 153(h), and that the Commission may not engage in censorship of radio communications. 47 U.S.C. § 326.
85
The parties agree that prior to the adoption of § 312(a)(7) individuals or organizations had no specific right of access to broadcast facilities. This was the common view of the Commission, the courts, and Congress. As we said in Columbia Broadcasting System, Inc. v. Democratic National Committee, supra, 412 U.S., at 122, 93 S.Ct., at 2096, Congress had "time and again rejected various legislative attempts that would have mandated a variety of forms of individual access." Broadcasters had obligations with respect to their programming, such as the fairness doctrine which obligated them to cover issues of public importance from opposing points of view, but this obligation was enforced with care so as not to unduly infringe on the "journalistic discretion in deciding how best to fulfill the Fairness Doctrine obligations." 412 U.S., at 111, 93 S.Ct., at 2090. We also observed: "[I]n the area of discussion of public issues Congress chose to leave broad journalistic discretion with the licensee. Congress specifically dealt with—and firmly rejected—the argument that the broadest facilities should be open on a nonselective basis to all persons wishing to talk about public issues." Id., at 105, 93 S.Ct., at 2088. Similarly, in FCC v. Midwest Video Corp., 440 U.S. 689, 99 S.Ct. 1435, 59 L.Ed.2d 692 (1979), where we held that the Commission had erred in providing for a general system of access to cable television, we noted that the Commission's authority with respect to cable television was derived from the provisions of the Communications Act and concluded that the Commission should not have ignored "Congress' stern disapproval—evidenced in § 3(h)—of negation of the editorial discretion otherwise enjoyed by broadcasters and cable operators alike." Id., at 708, 99 S.Ct., at 1445. We reaffirmed "the policy of the Act to preserve editorial control of programming in the licensee." Id., at 705, 99 S.Ct., at 1444.
86
Broadcasters, however, had certain statutory obligations with respect to political broadcasting: As the Commission has explained, it had "recognized political broadcasting as one of the fourteen basic elements necessary to meet the public interest, needs and desires of the community." Report and Order: Commission Policy in Enforcing Section 312(a)(7) of the Communications Act, 68 F.C.C.2d 1079, 1087-1088 (1978). Prior to the enactment of § 312(a)(7):
87
"No legally qualified candidate had, at that time, a specific right of access to a broadcasting station. However, stations were required to make reasonable, good-faith judgments about the importance and interests of particular races. Based upon those judgments, licensees were to 'determine how much time should be made available for candidates in each race on either a paid or unpaid basis.' There was no requirement that such time be made available for specific 'uses' of a broadcasting station to which Section 315 'equal opportunities' would be applicable." 68 F.C.C.2d, at 1088.
88
The Communications Act had thus long been construed to impose upon the broadcasters a duty to satisfy the public need for information about political campaign s. As this Court observed in Farmers Educational & Cooperative Union v. WDAY, Inc., 360 U.S. 525, 534, 79 S.Ct. 1302, 1308, 3 L.Ed.2d 1407 (1959), a broadcaster policy of 'denying all candidates use of stations... would ... effectively withdraw political discussion from the air,' and such result would be quite contrary to congressional intent. Furthermore, § 315 had long provided that should a station permit a political candidate to use its broadcasting facilities, it must 'afford equal opportunities to all other such candidates for that office....' As that section expressly provided , however, the provision for equal time created no right of initial access.
89
It is therefore as clear as can be that the regulation of the broadcast media has been and is marked by a clearly defined "legislative desire to preserve values of private journalism." Columbia Broadcasting System, Inc. v. Democratic National Committee, supra, 412 U.S., at 109, 93 S.Ct., at 2090. The corollary legislative policy has been not to recognize or attempt to require individual rights of access to the broadcast media. These policies have been so clear and are so obviously grounded in constitutional considerations that in the absence of unequivocal legislative intent to the contrary, it should not be assumed that § 312(a)(7) was designed to make the kind of substantial inroads in these basic considerations that the Commission has now mandated. Section 312(a)(7) undoubtedly changed the law governing access in some respects, but the language of the section, as the Commission itself concedes, does not require the access rights the Commission has now created; and the legislative history, far from supporting the Commission's actions in these cases, has a contrary thrust.
90
2. The legislative history, most of which the Commission ignored, shows that Congress was well aware of the statutory and regulatory background recounted above. It also shows that Congress had no intention of working the radical change in the roles of the broadcaster and the Commission that the Commission now insists is consistent with the statutory mandate.
91
The initial effort to incorporate the "reasonable access" concept into the Communications Act arose in 1970 as part of a floor amendment to S. 3637, a bill designed to repeal the equal time provisions of the Act with respect to Presidential and Vice Presidential elections and to require the sale of broadcast time to be made at the "lowest unit charge" available to commercial advertisers. S. 3637, 91st Cong., 2d Sess. (1970). The amendment provided that "consistent with the other needs of the community broadcast licensees shall make a reasonable amount of time available for legally qualified candidates for federal elective offices during [prime time]." It also limited expenditures by candidates on broadcast time. 116 Cong.Rec. 11593 (1970). Senator Pastore, sponsor of the amendment, explained that its purpose was "to avoid any misunderstanding as to the obligation of the licensee in making time available to candidates for a Federal elective office." Ibid. The amendment was adopted by the Senate, but not by the House. However, the House Committee Report made clear that "[t]he presentation of legally qualified candidates for public office is an essential part of any broadcast licensee's obligation to serve the public interest." H.R.Rep.No.91-1347, p. 7 (1970). Senator Pastore's amendment would have codified that obligation with respect to federal elective office. The final bill was vetoed by President Nixon.
92
A second effort, this time by Senator Scott, to codify a "reasonable access" provision arose in the next session of Congress. That provision would have directed the Commission to promulgate regulations that would "insure that all licensees make available to legally qualified candidates for public office reasonable amounts of time for use of broadcasting stations." S. 956, 92d Cong., 2d Sess., § 302(c) (1971). The then Chairman of the Commission testified that he understood this proposal to codify the existing obligation of broadcasters to present political broadcasts under the public interest standard. Federal Election Campaign Act of 1971: Hearings on S. 1, S. 382, and S. 956 before the Subcommittee on Communications of the Senate Committee on Commerce, 92d Cong., 1st Sess., 189 (1971). This proposal also was not enacted.
93
The third effort to codify a reasonable access standard met with success in the form of § 312(a)(7) which the Senate Committee on Commerce added to Title I of what ultimately became the Federal Election Campaign Act of 1971. S. 382, 92d Cong., 1st Sess. (1971). The portions of this bill that addressed broadcast media included a repeal of the equal time provision of the Communications Act with respect to Presidential and Vice Presidential elections, a requirement that broadcasters charge political candidates a "lowest unit charge" during certain periods of a campaign, and limitations on expenditures by candidates for federal office.1 The Senate Committee indicated that these provisions should not result in the "diminution in the extent of such programming." S.Rep.No.92-96, p. 28 (1971), U.S.Code Cong. & Admin.News 1972, p. 1781. And in this precise regard, § 312(a)(7) was included in the bill "[i]n order to emphasize the public interest obligation inherent in making broadcast time available to candidates covered by the spending limitation in the legislation. . . ." Ibid. Section 312(a)(7) was primarily a device to insure that other provisions of the bill would not dilute the pre-existing public interest standard as applied to federal elections. Consistent with this approach, the Committee described the section and observed that
94
"[t]he duty of broadcast licensees generally to permit the use of their facilities by legally qualified candidates for these public offices is inherent in the requirement that licensees serve the needs and interests of the [communities] of license." Id., at 34, U.S.Code Cong. & Admin.News, 1972, p. 1787.
95
The legislative history thus reveals that Congress sought to codify what it conceived to be the pre-existing duty of the broadcasters to serve the public interest by presenting political broadcasts. It also negates any suggestion that Congress believed it was creating the extensive, inflexible duty to provide access that the Commission has now fastened upon the broadcasters. This is not to say that § 312(a)(7) did not work important changes in the law, for it did put teeth in the obligation of the broadcasters' duty to serve the public interest by providing the remedy of license revocation for willful or repeated refusals to provide a candidate for federal elective office with reasonable access to broadcast time. The need for this remedy arose out of the concern that other provisions of the Federal Election Campaign Act could lead to a misunderstanding regarding the broadcasters' continuing duty to afford reasonable access to federal candidates.
96
The Commission almost totally ignored the legislative history as a possible limitation on the reach of the broadcasters' duty to provide reasonable access or upon the scope of its oversight responsibilities. The Commission did note that one of the purposes of the 1971 Act had been described as affording candidates a greater access to the broadcast media. But none of these statements indicated that this was the purpose of § 312(a)(7), the provision at issue here. That purpose was served by other provisions of the amendments, such as the provision requiring the sale of broadcast time at the lowest unit charged during specified periods; § 312(a)(7) itself aimed at preventing the charge limitation from reducing access that might otherwise be available.2
97
The Commission also noted, and the Court now heavily relies on, the so-called conforming amendment to § 315(a), the equal time provision, which then provided that "[n]o obligation is imposed upon any licensee to allow the use of its station by any such candidate." 47 U.S.C. § 315(a) (1970 ed.). But in its original form, 48 Stat. 1088, this portion of § 315 had provided that "no obligation is hereby imposed"—the word "hereby" being omitted by the codifier of Title 47 of the United States Code. To the extent that § 315 without the conforming amendment, which returned the relevant provision to approximately its original form, suggested that the Act in no way required access to political candidates, it also called into the question the Commission's public interest policy of requiring stations to give reasonable access to political candidates. That the conforming amendment was made is understandable, but the Court gives it undue significance.
98
In any event, the Court relies on the conforming amendment for no more than an affirmative indication that Congress intended to give individual candidates a right of reasonable access, a right that did not exist prior to the enactment of § 312(a)(7). This much may be conceded, but nothing in this bit of legislative history, or in any other, furnishes any support for the Commission's sweeping decision in these cases. On the contrary, the legislative history negates the Commission's conclusion that it was free to so drastically limit the discretion of the broadcasters and to so radically expand its own oversight authority.
99
3. The Court relies, as it must, on the authority of the Commission to interpret and apply the statute and on the deference that courts should accord to agency views with respect to the legislation it is charged with enforcing. As the Court has said, however, "[t]he amount of deference due an administrative agency's interpretation of a statute . . . 'will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.' " St. Martin Evangelical Lutheran Church v. South Dakota, 451 U.S. 772, 783, n. 13, 101 S.Ct. 2142, 2148, n. 13, 68 L.Ed.2d 612 (1981), quoting Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 L.Ed. 124 (1944). I find the Commission's current radical version not only quite inconsistent with its prior views but also singularly unpersuasive.
100
As for its past views, the Commission's policy statement issued in 1972, shortly after the enactment of the Federal Election Campaign Act, expressed the view that the section had expressly imposed on the public interest obligation of broadcasters the "additional" specific requirement that candidates for federal public office be afforded reasonable access to broadcast time, but it also clearly eschewed anything approaching the negation of broadcaster discretion and the extensive agency oversight that the Commission's present decision inevitably involves:
101
"3. Q. How is a licensee to comply with the requirement of section 312(a)(7) that he give reasonable access to his station to, or permit the purchase of reasonable amounts of time by, candidates for Federal elective office?
102
"A. Each licensee, under the provisions of sections 307 and 309 of the Communications Act, is required to serve the public interest, convenience, or necessity. In its Report and Statement of Policy Re: Commission En Banc Programming Inquiry (1960), the Commission stated that political broadcasts constitute one of the major elements in meeting that standard. (See Farmers Educational and Cooperative Union of America, North Dakota Division v. WDAY, Inc., 360 U.S. 525 [79 S.Ct. 1302, 3 L.Ed.2d 1407] (1959), and Red Lion Broadcasting Co., Inc. v. FCC, 395 U.S. 367, 393-394 [89 S.Ct. 1794, 1808-1809, 23 L.Ed.2d 371] (1969).) The foregoing broad standard has been applied over the years to the overall programming of licensees. New section 312(a)(7) adds to that broad standard specific language concerning reasonable access.
103
". . . The test of whether a licensee has met the requirement of the new section is one of reasonableness. The Commission will not substitute its judgment for that of the licensee, but, rather, it will determine in any case that may arise whether the licensee can be said to have acted reasonably and in good faith in fulfilling his obligations under this section.
104
* * * * *
105
"8. Q. Some stations have in the past had the policy of not selling short political spot announcements (e. g., 10 seconds, 1 minute) on the ground that they did not contribute to an informed electorate. In light of the enactment of section 312(a)(7), may stations have such policies, or must they sell reasonable numbers of short spots to legally qualified candidates for Federal office if requested?
106
"A. We have, prior to the enactment of section 312(a)(7), when stations were (under the provisions of section 315) not required to allow use of their facilities by particular candidates for public office, ruled that licensees may have such policies. In so ruling, we have cautioned that licensees have the public interest consideration of making their facilities available to candidates, but have left to the good-faith judgment of the licensee the determination of how the facilities were to be used to serve the public interest. As complaints arose, we looked to the reasonableness of that judgment in a particular fact pattern. (31 F.C.C.2d 782) (1971)). Section 312(a)(7) now imposes on the overall obligation to operate in the public interest the additional specific requirement that reasonable access and purchase of reasonable amounts of time be afforded candidates for Federal office. We shall, under this new section, apply the same test of reasonableness of the judgment of the licensee." Use of Broadcast and Cablecast Facilities by Candidates for Public Office, 34 F.C.C.2d 510, 536-538 (emphasis supplied).
107
There was no suggestion in 1972 that the "needs" of the requesting candidate shall be paramount. Indeed, the Commission embraced its prior practice. Discretion was thought to remain with the broadcaster, not to be placed in the hands of the candidates or subjected to close and exacting oversight by the Commission. Clearly, the Commission's contemporaneous construction of § 312(a)(7) is inconsistent with the sweeping construction of the section it has now adopted. See Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965).
108
Subsequent interpretations of the scope of § 312(a)(7), including the comprehensive Report and Order: Commission Policy in Enforcing Section 312(a)(7) of the Communications Act, 68 F.C.C.2d 1079 (1978), have consistently refrained from curtailing broadcaster discretion by refusing to impose stringent standards or to second-guess the broadcaster's good-faith judgments. In the Report and Order, the Commission explained:
109
"Since the passage of Section 312(a)(7) as part of the Federal Election Campaign Act of 1971, the Commission's policy has generally been to defer to the reasonable, good faith judgment of licensees as to what constitutes 'reasonable access' under all the circumstances present in a particular case. The Commission desired, through its inquiry into this area, to learn whether that policy was proving manageable and equitable for candidates and licensees or whether additional rules or guidelines would be advisable." Id., at 1079-1080.
110
After a detailed examination of the question, the Commission concluded:
111
"We continue to believe that the best method for achieving a balance between the desires of candidates for air time and the commitments of licensees to the broadcast of other types of programming is to rely on the reasonable, good faith discretion of individual licensees. We are convinced that there are no formalized rules which would encompass all the various circumstances possible during an election campaign." Id., at 1089.
112
The Commission went on to suggest some very broad guidelines it considered essential in effectuating the intent of Congress under § 312(a)(7). For example, candidates generally were to be afforded some access to prime time, and access was to be flexible, including the possibility of program time and "spot" announcements. Candidates were not entitled, however, "to a particular placement of his or her political announcement on a station's broadcast schedule. . . . It is best left to the discretion of a licensee when and on what date a candidate's spot announcement or program should be aired" 68 F.C.C.2d, at 1091. The Commission specifically refused to arrogate to itself the power to determine when the reasonable access duty attached except on a case-by-case basis leaving the initial judgment in the hands of the broadcast licensee. Finally, there is no statement in this report that requires broadcasters to look to the needs of a candidate in the initial determination of reasonable access other than the admonition that broadcasters could not "follow a policy of flatly banning access by a Federal candidate to any of the classes and lengths of program or spot time in the same periods which the station offers to commercial advertisers." Id., at 1090. Like the initial policy statement issued in 1972, this report lends little credence to the new-found power of the Commission to oversee with an iron hand the implementation of § 312(a)(7).
113
In terms of the degree to which broadcaster editorial judgments should be subject to review and reversal by the Commission—the most important issue in this litigation—it is evident that the Commission has been quite inconsistent. Its present radical interpretation of § 312(a)(7) plainly rejects its earlier and more contemporaneous pronouncements as to the meaning and scope of the broadcasters' duties and of its own authority under § 312(a)(7).
114
4. Equally, if not more fundamental, the Commission's opinions in this case are singularly unpersuasive. They contain a plethora of admonitions to the broadcast industry, some quite vague and others very specific but often inconsistent. Altogether, in operation and effect, they represent major departures from prior practice, from prior decisions, including those of this Court, and from congressionally recognized policies underlying the Federal Communications Act. As I have indicated, we should not endorse them without much clearer congressional direction than is apparent in the actions leading to the adoption of § 312(a)(7). I shall mention my major difficulties with the Commission's opinion and judgment.
115
4a. The Commission stated in a footnote that it should not differ with broadcaster decisions with respect to a candidate's access unless " 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,' " an approach reflecting its traditional stance vis-a-vis the broadcasters. 74 F.C.C.2d, at 642, n. 16. The Commission had already determined, however, that because § 312(a)(7) was not self-explanatory on its face and because it failed to find explicit guidance to the contrary in the legislative history, it would and should exercise wide discretion in interpreting and enforcing the Act. It is therefore not surprising that the Commission's assertions of deference to editorial judgment are palpably incredible.3
116
The Commission first confounds itself by announcing that the duty to provide access attaches when the campaign begins and that this threshold issue was to be "based on [an] independent evaluation of the status of the campaign taking into account the position of the candidate and the networks as well as other factors" 74 F.C.C.2d, at 665. This effectively withdrew the issue of timing from the area of broadcaster judgment and transformed it into a question of law to be determined by the Commission de novo. It was also a major shift in the agency's position, for its Broadcast Bureau just two years before had ruled that the assessment of when a campaign is sufficiently underway to warrant the provision of access was to be left to broadcaster discretion: "A licensee's discretion in providing coverage of elections extends not only to the type and amount of time to be made available to candidates, but to the date on which its campaign coverage will commence." Anthony R. Martin—Trigona, 66 F.C.C.2d 968, 969 (Broadcast Bureau 1977), application for review denied, 67 F.C.C.2d 33, reconsideration denied, 67 F.C.C.2d 743 (1978). Although I have some difficulty in perceiving why the access obligation should begin when "the campaign" is underway, even if there is such a triggering event, reasonable men could differ as to when that moment has arrived. The Commission overstepped its authority in imposing its own answer on the industry and in rejecting the networks' reasonable submissions. The Commission gave no explanation whatsoever for its action in this respect. In fact, it did not even acknowledge that it was making its own de novo determination until it issued its opinion on reconsideration.
117
4b. The Commission ruled that in responding to its obligation to provide reasonable time, a broadcaster should place particular emphasis on the candidates' needs, weigh each request in its own specific context on a particularized basis, and tailor its response to the individual candidate. This approach expressly rejects the thesis of § 315 that all candidates be treated equally. If the networks in this case had responded affirmatively to the candidate's request, § 315 would require that equal time be extended to all other Democratic candidates and would forbid any kind of individualized consideration that would result in giving them less time than had been previously given to their competitor. There is no trace of support in the language of the Act or in the legislative history for this unrealistic approach to § 312(a)(7). Nor does the Commission offer any tenable explanation why a broadcaster's decision to provide equal time for all candidates is a violation of the obligation to provide reasonable time to each of them. The inference may be drawn from the Commission's position that reasonable access may require unequal access, but § 315 requires equal time for all once it is granted to anyone. The Commission's rejection of the equality approach as one of the possible ways of complying with § 312(a)(7) is a plain error.
118
Of course, the individualized-need approach requires a broadcaster to make an assessment with respect to each request for time, and each of these countless assessments will be subject to review by the Commission. If the degree of oversight to be exercised by the Commission is to be measured by its work in these cases, there will be very little deference paid to the judgment and discretion of the broadcaster. The demands of the candidate will be paramount. As Commissioner Lee said in this litigation: "I have listened carefully to my colleagues explain how this decision leaves broadcast discretion with the networks. However, the decision doesn't have this effect. By the time the majority finishes its analysis of the networks' reasons for not giving time, the networks do not have any choice other than to give the requested time. No other weighing of factors is reasonable in the view of the majority." 74 F.C.C.2d, at 681 (footnote omitted).
119
4c. Indicative also of the stringent degree of oversight that the Commission now intends to exercise is the manner in which it dealt with the networks' suggestions that in responding to the request for time involved here, they were entitled to take into account the fact that a total of 122 persons had filed notices of candidacy for the Presidency with the Federal Election Commission. The Commission conceded that this was a proper concern and that Republican candidates might have to be treated equally with Democrats. The Commission, however, in its political wisdom, concluded that it was "unlikely" that more than a tiny percentage of all candidates would request time, the net effect being that the networks' anticipations based on their professional experience were rejected. As petitioner CBS submits in its brief: "Broadcasters are not permitted to consider the likelihood of multiple future requests by similarly situated candidates unless the imminence of such requests can be demonstrated to a near certainty. But the likelihood that there will be multiple demands from other candidates is not susceptible to proof in advance. Candidate needs are necessarily shifting in nature, and no candidate can supply a precise prediction of his future plans. Thus, under the Commission's approach, broadcasters can give only limited, if any, weight to potential disruption of normal program schedules, or their view that other material would better serve the interests of their audiences." Brief for Petitioner in No. 80-207, p. 38 (footnotes omitted).
120
4d. The Court tells us: "If broadcasters take the appropriate factors into account and act reasonably and in good faith, their decisions will be entitled to deference even if the Commission's analysis would have differed in the first instance." Ante, at 387. But this language can be taken with a grain of salt, since the Commission, the Court of Appeals, and the majority give the networks no deference whatsoever. This is so because the "appropriate factors" are designed to eviscerate broadcaster discretion. The abrupt departure from accepted norms and the truly remarkable extent to which the Commission will seek to control the programming of political candidates in the future is best demonstrated by its rejection, as being unreasonable, of the submissions filed by the networks in response to the complaints, these submissions being summarized in the networks' briefs as follows:
CBS:
121
"On October 11, 1979, Gerald M. Rafshoon, President
122
Carter's media adviser, asked CBS to offer the Carter/Mondale Presidential Committee, Inc. (the 'Carter Committee') a thirty-minute paid program on the CBS Television Network between 8:00 p.m. and 10:30 p.m. EST during the period December 4 to 7, 1979. The program, which was to be run following President Carter's anticipated announcement of his candidacy for reelection on December 4, was described as 'a documentary outlining the President's record and that of his administration.' J.A. 39. CBS declined to offer a half-hour period that early in the campaign, but did offer two five-minute periods, one in the prime evening hours and one in the daytime hours, as it had to two other presidential candidates. J.A. 44-45.
123
"On October 29, 1979, the Carter Committee filed a
124
complaint with the Commission alleging that CBS, ABC and NBC had violated Section 312(a)(7). In its response to the complaint and later pleadings, CBS asserted that its decision had been reasonable. CBS stated that it had traditionally sold half-hour periods during later campaign periods and that it intended to do so in the 1980 campaign. J.A. 80. It emphasized that its sales policies were designed to assure evenhanded treatment of candidates. J.A. 170-173. CBS pointed out that the Carter Committee request had been made even before the President had announced his candidacy and more than a year before the general election. It also pointed out that campaigns for the presidential nominations consisted not of one national contest, but of a series of state delegate contests extending over a long period of time; that the first of these contests was more than four months away; and that it was not reasonable to expect networks to sell half-hour periods nationally at such an early date. Moreover, CBS noted that there were a large number of actual and potential candidates for the Presidency; that two candidates for the Republican nomination had already requested half-hour periods; and that a substantial disruption of regular programming would occur if multiple requests were received and granted. J.A. 78-84. CBS further pointed out that an incumbent President has unparalleled opportunities to present his views to the public by means of the broadcast media. J.A. 170-71." Brief for Petitioner in No. 80-207, pp. 4-5 (footnotes omitted).
NBC:
125
"NBC responded by letter of October 23, 1979 declining
126
the request to purchase time (JA 42). In its letter NBC noted that it had carefully evaluated the request, but concluded that the earliness of the requested broadcast dates (eight months before the Democratic National Convention and 11 months before the national election), the multiplicity of federal candidates at that stage of the campaign (12 announced candidates had held national elective office or been Governor of a state), and NBC's obligation under Section 315(a) of the Communications Act to provide equal half-hour time periods to all candidates requesting it should NBC honor the President's request, were all factors in its decision. NBC also noted that since the nomination process was focused at that time on political activities in individual states, such as the Iowa Caucus, the Committee might wish to contact individual local stations in those states." Brief for Petitioner in No. 80-214, pp. 3-4.
ABC:
127
"In a letter dated October 23, 1979, ABC advised Mr.
128
Rafshoon that it could not comply with the Committee's request for time on one of the early December dates, but that it expected to make time available early in 1980. J.A. 41. . . .
129
* * * * *
130
"In response, ABC explained the factors which had led it to conclude that political time sales could reasonably commence in early January, 1980—instead of on the specific dates requested. Thus, the first of 36 Presidential primaries was, at that time, nearly four months away and the Democratic National Convention was more than eight months away. J.A. 54-55. ABC also noted that the potential for program schedule disruption would be considerable if the Committee were sold time in early December, as multiple candidates would likely assert equal opportunities rights under Section 315(a) of the Communications Act. J.A. 56. In this regard, ABC observed that at least nine Republicans had already declared their candidacy and that two Democratic leaders and a tenth prominent Republican were expected to announce within a short period of time. Finally, ABC emphasized that its continuing news coverage ensured that 'the mixture of issues, developments (including candidate announcements) and personalities that dominate this early stage of the campaign are brought to the public's attention.' J.A. 57." Brief for Petitioner in No. 80-213, pp. 6-7.
131
None of these justifications is patently unreasonable. They become so only because of the Commission's conclusion, adopted by the majority, that the reasonableness of access is to be considered from the individual candidate's perspective, including that candidate's particular "needs." While both the Court and the Commission describe other factors considered relevant such as the number of candidates and disruption in programming, the overarching focus is directed to the perceived needs of the individual candidate. This highly skewed approach is required because, as the Court sees it, the networks "seek the unilateral right to determine in advance how much time to afford all candidates." Ante, at 389. But such a right, reasonably applied, would seem to fall squarely within the traditionally recognized discretion of the broadcaster. Instead of adhering to this traditional approach, the Court has laid the foundation for the unilateral right of candidates to demand and receive any "reasonable" amount of time a candidate determines to be necessary to execute a particular campaign strategy. The concomitant Commission involvement is obvious. There is no basis in the statute for this very broad and unworkable scheme of access.4 Commissioner Washburn's dissenting observation is surely correct:
132
"In addition, the document adopted by the majority today goes far beyond the proper limits of Commission responsibility in political broadcasting matters. In detail (see pages 12-13, paragraphs 13-35) it substitutes the Commission's judgment for the broadcaster's own good faith interpretation of candidate requests and his response thereto. Such governmental intrusion is unwarranted, is illegal and, I fear, will have far-reaching consequences that will come back to haunt the Commission and the public again and again." 74 F.C.C.2d, at 682.
133
Justice STEVENS, dissenting.
134
In my judgment, the question whether a broadcast licensee has violated 47 U.S.C. § 312(a)(7) by denying a political candidate reasonable access to broadcast time must be answered in the context of an entire political campaign, rather than by focusing upon the licensee's rejection of a single request for access. The licensee has a duty to act impartially and to make an adequate quantity of desirable time available. The performance of that duty cannot be evaluated adequately by focusing solely on particular requests or the particular needs of individual candidates. The approach the Federal Communications Commission has taken in this litigation, now adopted by the Court, creates an impermissible risk that the Commission's evaluation of a given refusal by a licensee will be biased—or will appear to be biased by the character of the office held by the candidate making the request.* Indeed, anyone who listened to the campaign rhetoric that was broadcast during 1980 must wonder how an impartial administrator could conclude that any Presidential candidate was denied "reasonable access" to the electronic media. That wonderment is not dispelled by anything said in the opinions for the majority of the Commission in this litigation.
135
In sum, I find Justice WHITE'S analysis of the issue compelling. I accordingly join his opinion.
1
The text of Mr. Rafshoon's letter to the three networks read as follows:
"On behalf of the Carter/Mondale Presidential Committee, Inc., I am requesting availabilities for a thirty (30) minute program on [ABC, CBS, or NBC] between 8:00 p. m. and 10:30 p. m. E.S.T. on December 4, December 5, December 6, or December 7, 1979. This program, to be run in conjunction with an announcement concerning his candidacy by President Carter for the Democratic nomination for President, consists of a documentary outlining the President's record and that of his administration. At the time this program is aired, it may be assumed that President Carter will be a legally qualified candidate under the Communications Act of 1934, as amended, and that the President would appear on the program.
"As you know, the first official contest to select delegates to the Democratic National Convention occurs January 21, 1980, in Iowa, which is 47 days after December 7, 1979, our last requested date for availabilities.
"Unlike all previous Presidential election years, the news media has chosen to focus enormous attention on the Florida Caucus (October 13, 1979) and Convention (November 16-18, 1979) as well as other aspects of the 1980 campaign. As illustration, I have noted that in the six-week period from September 1 through October 9, 1979, ABC devoted 51 minutes, 22 seconds to the 1980 campaign; CBS devoted 51 minutes, 17 seconds to this subject; and NBC devoted 70 minutes. Therefore, our request for the above times seems eminently appropriate in view of the escalating political climate already generated by both print and broadcast media.
"I will expect to hear from one of your sales representatives within the next week regarding a selection of times in order that we may choose a mutually agreeable date." App. 35-40.
2
The letter (dated October 17, 1979) to Mr. Rafshoon from Raymond E. Dillon, Director of Political Sales at CBS, read in pertinent part:
"Because of the large number of present and potential candidates for the Republican and Democratic presidential nominations, we are at this time unable to accede to your request to purchase a half-hour program. We note that three Democrats and eleven Republicans have already announced, or may reasonably be expected shortly to announce, their presidential candidacies; indeed two candidates for the Republican presidential nomination have already requested to purchase half-hour programs on the CBS Television Network, and their requests have been declined on the same basis as indicated below.
"In light of the above circumstances, were we to provide the half-hour program you seek, accommodating potential requests for equal treatment from other candidates for presidential nomination would involve massive disruptions of the regular entertainment and information schedule of the CBS Television Network. Accordingly, we must respectfully reject your request.
"We are, however, prepared to make one 5-minute segment in prime time and one 5-minute daytime segment available for purchase by your committee. We note that this is the same offer made to the Republican candidates referred to above in response to their requests to purchase half-hour time periods.
"While we are unable to make available time on the dates you have specified, we are able to offer for your purchase a 5-minute period on December 8 between approximately 10:55 and 11:00 PM. We will also provide a specific 5-minute daytime availability for your purchase on request." Id., at 44-45.
3
The letter (dated October 23, 1979) to Mr. Rafshoon from Charles C. Allen, Vice President for Sales Administration at ABC, read in pertinent part:
"[T]he ABC Television Network has not reached a decision as to when it will start selling political time for the 1980 Presidential campaign, and, accordingly, we are not in a position to comply with your request. As I mentioned on the telephone, I believe that later this year a decision will be made to make political time for the Presidential campaign available on ABC-TV early next year." Id., at 41.
4
The letter (dated October 23, 1979) to Mr. Rafshoon from Joseph J. Iaricci, Vice President for Sales and Administration at NBC, read in pertinent part:
"We have evaluated your request carefully. Based upon our experience with past campaigns, we believe it is too early in the political season for nationwide broadcast time to be made available for paid political purposes. In addition, we believe that honoring your request at this early stage of the Presidential campaign would require NBC to honor similar requests from a number of other Presidential aspirants. The impact of such an undertaking at this time is, of course, a significant factor in our decision.
"Insofar as the nomination process is now focused on political activities in individual states like Iowa, you may wish to contact stations serving those particular states.
"Please be assured that NBC News will continue to cover important and newsworthy aspects of President Carter's political activities." Id., at 42-43.
5
Title I also provided: (a) that during a specified period before a primary or general election, a broadcast station was not permitted to charge a legally qualified candidate for any public office a fee in excess of its "lowest unit charge . . . for the same class and amount of time for the same period," 47 U.S.C. § 315(b)(1); and (b) that in using the communications media, candidates for federal elective office were not allowed to exceed established spending limits, 47 U.S.C. § 803 (1970 ed., Supp. II), repealed, Pub.L. 93-443, 88 Stat. 1278 (1974).
6
The public interest requirement still governs the obligations of broadcasters with respect to political races at the state and local levels. See Public Notice: The Law of Political Broadcasting and Cablecasting, 69 F.C.C.2d 2209, 2290 (1978) (1978 Primer).
7
Title 47 U.S.C. § 315(a) provides that, if a legally qualified candidate for public office is permitted to use a broadcasting station, the licensee must afford "equal opportunities to all other . . . candidates for that office in the use of [the] station."
8
No request for access must be honored under § 312(a)(7) unless the candidate is willing to pay for the time sought. See Kennedy for President Comm. v. FCC, 204 U.S.App.D.C. 160, 174-178, 636 F.2d 432, 446-450 (1980); 1978 Primer, at 2288.
9
Broadcasters have continued to register their complaints about § 312(a)(7) with Congress. See First Amendment Clarification Act of 1977: Hearing on S. 22 before the Subcommittee on Communications of the Senate Committee on Commerce, Science, and Transportation, 95th Cong., 2d Sess., 67 (1978). And Congress has considered specific proposals to repeal the statute, but has declined to do so. See S. 22, 95th Cong., 1st Sess., § 3 (1977); S. 1178, 94th Cong., 1st Sess., § 2 (1975). Indeed when the Federal Election Campaign Act was amended in 1974, § 312(a)(7) was left undisturbed. See Pub.L. 93-443, 88 Stat. 1272.
10
See generally Note, The Right of "Reasonable Access" for Federal Political Candidates Under Section § 312(a)(7) of the Communications Act, 78 Colum.L.Rev. 1287 (1978).
11
In order to be "legally qualified" under the Commission's rules, a candidate must: (a) be eligible under law to hold the office he seeks; (b) announce his candidacy; and (c) qualify for a place on the ballot or be eligible under law for election as a write-in candidate. Persons seeking nomination for the Presidency or Vice Presidency are "legally qualified" in: (a) those states in which they or their proposed delegates have qualified for the primary or Presidential preference ballot; or (b) those states in which they have made a substantial showing of being serious candidates for nomination. Such persons will be considered "legally qualified" in all states if they have qualified in 10 or more states. See 1978 Primer, 69 F.C.C.2d, at 2216-2218.
12
The dissenters place great emphasis on the preservation of broadcaster discretion. However, endowing licensees with a "blank check" to determine what constitutes "reasonable access" would eviscerate § 312(a)(7).
13
In 1978, the Commission issued a Notice of Inquiry, which asked whether rulemaking proceedings should be commenced in order to clarify licensee obligations under § 312(a)(7). 43 Fed.Reg. 12938. Petitioners and others in the broadcasting industry expressed strong opposition to the promulgation of specific rules, and none were formulated. 1978 Report and Order, 68 F.C.C.2d, at 1079-1081. Petitioners, therefore, must share responsibility for any vagueness and confusion in the Commission's standards.
14
Section 312(a) empowers the Commission to "revoke any station license or construction permit." (Emphasis added.) In the Court of Appeals, petitioners argued that the statute applies only to licensees, not to networks. However, the court rejected that contention, reasoning that the Commission's jurisdiction to "mandate reasonable network access . . . is 'reasonably ancillary' to the effective enforcement of the individual licensee's Section 312(a)(7) obligations. . . ." 202 U.S.App.D.C., at 393-395, 629 F.2d, at 25-27. Petitioners do not contest that holding in this Court. See Tr. of Oral Arg. 16-17. In any event, as the Commission noted, each petitioner is "a multi-station licensee fully reachable [as to its licenses] by [the express] revocation authority" granted under § 312(a)(7). 74 F.C.C.2d, at 640, n. 10.
15
As it did here, the Commission, with the approval of broadcasters, engages in case-by-case adjudication of § 312(a)(7) complaints rather than awaiting license renewal proceedings. See Tr. of Oral Arg. 11-16. Although the penalty provided by § 312(a)(7) is license revocation, petitioners simply were directed to inform the Commission of how they intended to meet their statutory obligations. See 74 F.C.C.2d, at 651; 74 F.C.C.2d, at 676-677. In essence, the Commission entered a declaratory order that petitioners' responses to the Carter-Mondale Presidential Committee constituted a denial of "reasonable access." Such a ruling favors broadcasters by allowing an opportunity for curative action before their conduct is found to be "willful or repeated" and subject to the imposition of sanctions.
1
The bill as enacted did not include the proposed repeal of the equal time provisions with respect to Presidential and Vice Presidential elections. 86 Stat. 3. In addition, the expenditure limitations of the Federal Election Campaign Act of 1971 have been repealed. 88 Stat. 1278.
2
One of the major purposes of the Federal Election Campaign Act was to shorten the length of campaigns, thereby reducing campaign costs. See S.Rep.No.92-96, pp. 20-21, 28 (1971). Television advertising was described as "unquestionably the most used media in political campaigns, and it has been the most significant contributor to the spiraling cost of these campaigns." Id., at 30, U.S.Code Cong. & Admin.News, 1972, pp. 1783-1784. The majority's interpretation of § 312(a)(7) runs directly contrary to this broad goal. This decision is nothing more than an open invitation to start campaigning early, thus increasing the overall length of the campaign and the overall costs to all the candidates.
3
Of a similar tenor is the Court of Appeals' observation that "[t]he interference with editorial discretion" created by the rigid scheme of regulatory oversight it was endorsing "seems no more or less" than had existed under the broad public interest standard. 202 U.S.App.D.C. 369, 391, n. 102, 629 F.2d 1, 23, n. 102.
4
The statute permits revocation upon "willful or repeated" refusal to afford reasonable access. I think this language indicates that the Commission would intervene in only the most egregious of circumstances—such as an outright refusal to afford any time regardless of the circumstances. Consistent with this view, Senator Scott described § 312(a)(7) as directed at those few broadcasters who acted in "blatant disregard for the public interest." Federal Election Campaign Act of 1971: Hearings before the Subcommittee on Privileges and Elections of the Senate Committee on Rules and Administration, 92d Cong., 1st Sess., 103 (1971). The majority, however, reads this language as an open invitation for Commission intervention. A single "willful" violation is sufficient to trigger overview and immediate revocation. Ante, at 378. Since the Court has sustained the Commission's finding that the networks violated § 312(a)(7) and since a violation of § 312(a)(7) requires either willful or repeated refusal of reasonable access, it follows that the networks have been found to have acted willfully within the meaning of the statute and that their licenses are subject to immediate revocation. I doubt Congress intended to put the licenses of all broadcasters into a state of jeopardy on such tenuous grounds.
*
The possibility that Commission decisions under § 312(a)(7) may appear to be biased is well illustrated by this litigation. In its initial decision and its decision on the networks' petitions for reconsideration, the Commission voted 4-3 in favor of the Carter-Mondale Presidential Committee. See 74 F.C.C.2d 631, 652, 653, 654 (1979). In both instances, the four Democratic Commissioners concluded that the networks had violated the statute by denying the Committee's request for access; the three Republican Commissioners disagreed. See Federal Communications Commission, 45th Annual Report/Fiscal Year 1979, pp. 1-2, 86-87 (1980). See also 202 U.S.App.D.C. 369, 400-401, and n. 16, 629 F.2d 1, 32-33, and n. 16 (1980) (Tamm, J., concurring).
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Subsets and Splits